Johnson v DOCS
[1999] NSWSC 1156
•2 December 1999
Reported Decision: (2000) Aust Torts Reports 81-540
New South Wales
Supreme Court
CITATION: Johnson v DOCS [1999] NSWSC 1156 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): 20729/97 HEARING DATE(S): 24/11/99, 25/11/99 JUDGMENT DATE:
2 December 1999PARTIES :
Christopher Johnson - Appellant
Department of Community Services - First Respondent
Minister for Community Services - Second Respondent
State of New South Wales - Third RespondentJUDGMENT OF: Rolfe J
LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S) : 20729/1997 LOWER COURT JUDICIAL OFFICER: Master Harrison
COUNSEL : Mr T.K. Tobin QC/Mr P.W.J. Gray - Appellant
Mr J.A. McCarthy QC/Ms R. Druitt - RespondentsSOLICITORS: Carroll & O'Dea - Appellant
I.V. Knight, Crown Solicitor - RespondentsCATCHWORDS: An Aboriginal boy was made a ward of the State as an infant. After the expiration of the limitation period he sought to bring proceedings against the respondents alleging common law negligence, and breach of statutory and fiduciary duties. The Master refused to extend the time on the basis that he had not established the requirements of s.58(2) and ss.60G and I. Held the Master was in error in this regard, but not in finding that he had available causes of action and it was otherwise just and reasonable to grant the extension.; Test to be applied as to the extent to which the applicant must show an available cause of action in an application to extend time:-; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1994) 35 NSWLR 497; Commonwealth of Australia v McLean (1997) 41 NSWLR 389.; Exercise of discretion in extending time under Limitation Act:-; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Sydney City Council v Zegarac (1998) 43 NSWLR 195.; The Nature of the Appellant's Case; Breach of Common Law Duty:-; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1999) 25 FamLR 86; Hahn v Conley (1971) 126 CLR 276; Perre v Apand Pty Limited (1999) 73 ALJR 1190; Cubillo v Commonwealth of Australia (1999) 163 ALR 395.; Breach of Statutory Duty; Policy or operational:-; Pyrenees Shire Council v Day (1998) 192 CLR 330, Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Air Services Australia v Zarb (Court of Appeal - 26 August 1998 - unreported); TC v New South Wales (1999) NSWSC 31; X (Minors) v Bedford County Council [1995] 2 AC 633.; Breach of Fiduciary Duty:-; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Henderson v Mevrett Syndicates [1995] AC 145; Secretary, Department of Health and Community Services v J.W.B. and S.M.B. (Marion's Case) (1992) 175 CLR 218 at 317; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1994) 35 NSWLR 497; Paramasivan v Flynn (1998) 160 ALR 203; M(K) v M(H) (1992) 96 DLR (4th) 289; Breen v Williams (1996) 186 CLR 71; Northern Land Council v The Commonwealth (No 2) (1987) 75 ALR 210; Brunninghausen v Glavanics (1999) 46 NSWLR 538. DECISION: (a) Appeal allowed; (b) The orders of Master Harrison of 29 June 1999 set aside; (c) In lieu thereof ordered that pursuant to s.60G and s.58 of the Limitation Act 1969, the limitation period for the causes of action for negligence and breach of statutory duties set out in the Statement of Claim filed on 24 July 1997, being for damages for personal injury, be extended to 24 July 1997; (d) The respondents pay the appellant's costs of the proceedings before Master Harrison and of the appeal; (e) The exhibits be returned
PageIntroduction 1
The Allegations Made 2
The Issues Before The Master 8
The Relevant Provisions Of The Act 9
The Personal Injury Alleged 11
The Master’s Reasons 19
The Submissions On Behalf Of The Respondents 31
Just And Reasonable 33
Does The Appellant Have A Case 36
The Notice Of Contention 43
Conclusions 67
Orders 69
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONROLFE J
THURSDAY, 2 DECEMBER 1999
20729/1997 - JOHNSON v DEPARTMENT OF COMMUNITY SERVICES & ORS
JUDGMENT
HIS HONOUR:
Introduction
1 The appellant, Mr Christopher Johnson, for whom Mr T.K. Tobin of Queen’s Counsel and Mr P.W.J. Gray of Counsel appeared, has appealed against a decision of Master Harrison, which was delivered on 29 June 1999, whereby she declined to extend the limitation period within which he might commence proceedings against the respondents, for which and whom Mr J.A. McCarthy of Queen’s Counsel and Ms R. Druitt of Counsel appeared. The Master ordered that the original Notice of Motion, which was filed on 22 May 1998, be dismissed and that the appellant pay the respondents’ costs of the application. The appellant filed an Amended Notice of Motion on the first day of the hearing before the Master, namely 22 March 1999, and it is clear that she also intended to dismiss it.
2 By the Amended Notice of Motion the appellant sought an order, pursuant to s.60G and/or s.58 of the Limitation Act 1969, (“the Act”), that the limitation period for the causes of action in negligence and for breach of statutory duty set out in his Statement of Claim, being one which claimed damages for personal injury, be extended to 24 July 1997, being the date on which the Statement of Claim was filed, and for consequential relief. The parties agreed before me that the appellant’s application to the Court was made on the date of the filing of the Statement of Claim.
The Allegations Made
3 It is convenient to trace the history of the matter, at least initially, by reference to the allegations in the Statement of Claim, which, at least so far as the chronology and certain essential facts are concerned, were not substantially in issue.
4 The appellant, an Aboriginal, was born at Wilcannia in Western New South Wales, on 2 August 1968. On or about 5 March 1973, he was removed from the care and custody of his parents and family and committed by an order of a Children’s Court at Wilcannia under the Child Welfare Act 1939 to the care of the Minister for Community Services to be dealt with as a ward and admitted to State control. From 5 March 1973 to January 1974 he was placed in three specified institutions and, on 7 January 1974, he was placed as a foster child with white foster parents and their children at Panania, a suburb of Sydney. He remained in that foster placement until about 26 August 1981, by which time he was aged 13 years.
5 On or about 26 August 1981, the appellant was removed from that foster placement and placed in an institution under the control of the Minister and/or the Department of Community Services and, from about 20 October 1981 to about 19 December 1985, he was placed in another institution under the same control, namely Weroona, at Woodford in the Blue Mountains. On leaving Weroona, which was closed on or about 19 December 1985, he lived for a short time in the home of an officer of the first defendant and, thereafter, from about April 1986 he “was forced to fend for himself”.
6 The facts pleaded, save perhaps for those in the last sentence of paragraph 5, were not in issue. The respondents relied on them to show that the appellant was being dealt with pursuant to statutory powers, and for other purposes to which I shall refer. In any event there was evdience before the Master to establish those matters.
7 It is alleged, in paragraph 11 of the Statement of Claim, that the respondents and each of them were and was responsible for his care and upbringing from the age of 4 years to 18 years, being the period from 5 March 1973 until 2 August 1986, “and thereafter for his support and the supervision of his progress as an ex-ward until the age of 20”.
8 It is alleged, in paragraph 12, that in these circumstances the respondents or one or other of them owed duties to the appellant:-
“(a) to care for him and protect him from harm;
(b) to act in his best interests in accordance with his long term needs;
(c) to ensure that he was well cared for and that his individual interests were preserved and enhanced, while ever he was living in the various institutions and places referred to in paragraphs 6 to 10;
(d) to ensure that he was brought up with an appreciation and understanding of his Aboriginality and that all reasonable efforts were made to maintain and/or re-establish contact and meetings between the Plaintiff and his natural family, namely his father, mother, siblings and other close relatives;
(e) to ensure that he has support and supervision and (sic) an ex-ward for two years after he reached the age of 18.
PARTICULARS
(i) The Defendants each owed to the Plaintiff fiduciary duties of such character.
(ii) The Defendants each owed the Plaintiff such duties in tort.
(iii) The Defendants each owed to the Plaintiff statutory duties of similar character by virtue of the provisions of Sections 9, 10, 22, 23, 24, 25, 50, 53, 54, 82, 144 and 148B in particular of the Act.”
9 In paragraph 13 it is pleaded that the respondents, or one or more of them, breached these duties, the particulars stating that each of the facts and matters set out therein was relied on to establish negligence and breaches of fiduciary and statutory duties.
10 The particulars furnished are:-
“(a) Removing the Plaintiff, at age 4, from all contact with his immediate and extended family.
(b) Failing to ensure, prior to and during the foster placement, that the foster parents with whom he was to be, and was placed, were suitable and had an appropriate appreciation of, and respect for, the Plaintiff’s Aboriginality.
(c) Placing the Plaintiff with white foster parents rather than with Aboriginal foster parents.
(d) Failing to supervise the conduct of the foster parents so as to ensure that the Plaintiff did not suffer ill-treatment, including physical mistreatment and acts of racial discrimination.
(e) Failing adequately, or at all, to investigate and respond to notification received in or about June 1977 to the effect that the plaintiff was being ill-treated and discriminated against by his foster parents.
(f) Causing the Plaintiff to remain in the foster placement notwithstanding their awareness of the ill-treatment and discrimination being inflicted upon him.
(g) Causing the Plaintiff to remain in the foster placement and in other institutions notwithstanding their awareness at various times and for various periods between 1973 and 1986 that the Plaintiff’s own Aboriginal family and/or extended family was willing and able to care for him.
(h) Failing to ensure that the Plaintiff was brought up with an appreciation and understanding of, and pride in, his Aboriginality.
(i) Failing to ensure that all reasonable efforts were made to maintain and/or re-establish contact and meetings between the Plaintiff and his natural family, including father, mother, siblings and relatives.
(j) Failing to protect the Plaintiff from mistreatment in the foster placement and from sexual abuse at Minali and/or Weroona.
(k) Failing to ensure that the Plaintiff received adequate and appropriate educational opportunities.
(l) Failing to supervise or care for the Plaintiff, adequately and appropriate educational opportunities.
(m) Failing to supervise or care for the Plaintiff, adequately or at all, from 19 December 1985 to 2 August 1986, and thereafter until 2 August 1998.”
11 In paragraph 14 it is pleaded that these breaches caused loss and damage to the appellant in that he suffered, and continues to suffer from, the psychiatric illnesses of chronic depression, acute anxiety and post-traumatic stress disorder. It is nextly alleged that the appellant was exposed to physical ill-treatment, especially in the foster home, and to sexual abuse at the institutions referred to in the particulars, and became, as a result of that, violent, and that that unlawful behaviour predisposed him to violence, which contributed to his commission of, and conviction and imprisonment for, various offences of violence.
12 The particulars continued that the appellant was rejected in whole or in part by his Aboriginal family and also by his foster family, thus leaving him ill-equipped to cope with the adult world and feeling that he belonged neither to white nor to Aboriginal society; that he experienced trauma and separation from his own family; that he lost the opportunity to know, love and be loved by his own family; that he was deprived of family and cultural heritage; that he lost the ability to realise his innate scholastic and academic potential; that he engaged in anti-social behaviour; that he lacked acceptance and appreciation of and confidence in his Aboriginality; that he sustained the trauma of having to come to terms with his Aboriginality in the context of having been exposed to, and partially absorbed by, prejudiced views about the inferiority of Aborigines; and that he lost the chance to acquit himself to his potential for employment, as a result of which he has suffered and continues to suffer a loss of earning capacity.
13 The appellant claimed damages; equitable compensation; interest; costs and ancillary relief.
14 On the case as pleaded, the appellant had allegedly suffered from the mistreatment by 2 August 1988, and the alleged psychiatric illnesses, and other particulars of damage, had occurred by that date.15 It was not in issue that the appellant needed an extension of the limitation period to bring these proceedings, which he sought pursuant to the statutory provisions specified in the Amended Notice of Motion. The issues, which confronted the Master, were whether the appellant had satisfied the criteria specified by those sections; and whether, if he had, it was just and reasonable to extend the time. The requirements of justice and reasonableness involved, in the way in which the matter was argued before the Master, whether there was such prejudice occasioned to the respondents that it would not be possible for them to obtain a fair trial, and whether, in any event, the matters pleaded disclosed a “viable” cause of action. The Master was not satisfied that the appellant had satisfied the criteria. However, she stated that if he had, she would have been satisfied that the second and third tests, or perhaps more accurately the “just and reasonable” test had been met. It was her first finding, which led to the orders she made. It was accepted that the Master’s decision involved, in large part, the exercise of discretion.
The Issues Before The Master
The Relevant Provisions Of The Act
16 The Master was asked to consider the matter in the light of s.58(2) and ss.60G and 60I.
17 Section 58(2) provides:-18 Section 58(2) applies, relevantly, to a cause of action founded on negligence or breach of duty for damages for personal injury. “Breach of duty” is defined by the Act as extending to the breach of any duty whether arising by statute or otherwise. “Personal injury” is defined as including:-
“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 sub-section (1) of section 26, the limitation period is extended accordingly.”
19 Section 60G, relevantly, provides:-
“Any disease and any impairment of the physical or mental condition of a person.”
20 Section 60I provides that a Court shall not make an order under that section, unless it is satisfied that:-
“(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury ..
(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.”
21 The “personal injury”, which the appellant alleges, includes psychiatric illness and a predisposition to violence. In his report of 8 April 1997 a psychiatrist, Dr Robert Gertler, after setting out the history, the complaints and his impressions, concluded:-
“(a) the plaintiff:
(i) did not know that personal injury had been suffered; or
(ii) was unaware of the nature or extent of personal injury suffered; or
(iii) was unaware of the connection between the personal injury and the defendant’s act or omission
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and
(b) the application is made, within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii).”
The Personal Injury Alleged
22 In a further report of 22 April 1997, Dr Gertler stated:-
“There is no doubt, in my opinion, that Mr Johnson’s experience as a foster child during his crucial formative years led to subsequent criminal activity. The nexus was a direct one in the sense that he was exposed to violence and became violent in turn. It was indirect in the sense that he was rejected by his family of origin and left totally unprepared to cope with an adult world with no role models to rely upon and no secure structure. His anti-social behaviour was designed to provide a legal structure as a substitute.”
“Further to my report of 8 April 1997 concerning Mr Johnson, he is, in my opinion, suffering from chronic depression. This depression may be experienced as such or the anger which is associated with it and has contributed to it, can at times, be externalised. At those times Mr Johnson has in the past acted out either through becoming violent or consuming alcohol to excess or both. His anti-social behaviour is, in my opinion, reactive to the circumstances of his childhood and adolescent upbringing and also attempts on his part to deal with underlying chronic feelings of depression and loss.
From a psychiatric point of view, his diagnosis is of a chronic depression, fluctuating in intensity.”
23 Thus the case the appellant seeks to bring is that in consequence of his mistreatment whilst a ward of the State, including being in foster care, and by reason of the sexual assaults upon him, he suffers from a psychiatric illness, which is causally related to that mistreatment. His case is that he did not become aware of the existence of this illness, the extent or nature of it, or its connection with the respondents’ conduct until he received and perused the respondents’ file in 1997 and read Dr Gertler’s reports of April 1997. His case is not that in consequence of the physical mistreatment, he suffered a bodily injury of which he would have been aware at the time.
24 In any consideration of s.58(2) one critical consideration is that it appears to the Court that any of the material facts of a decisive character, relating to the cause of action, was not within the means of knowledge of the appellant until a date after the commencement of the expiration of the limitation period.
25 So far as s.60I is concerned the appellant has to satisfy the Court that he did not know that the relevant personal injury had been suffered; or that he was unaware of the nature or extent of personal injury suffered; or that he was unaware of the connection between the personal injury and the defendant’s act or omission, at the expiration of the relevant limitation period. It is sufficient that he was unaware of any one of these matters.
26 The point where the appellant failed before the Master was that she was not satisfied, pursuant to s.58(2), that any of the material facts of a decisive character was not within his means of knowledge until a date after the commencement of the limitation period, and, in respect of s.60I, that she was not satisfied that he did not know that personal injury had been suffered; was unaware of the nature or extent of it; or was unaware of the connection between it and the defendant’s act or omission.
27 The appellant’s essential point is that the Master erred in coming to these conclusions because she did not have regard to critical and uncontradicted evidence, which established, not that the appellant was unaware that he was being mistreated and abused in the manner alleged, when that was happening, but that he was unaware until about April 1997 that that conduct caused the psychiatric illness; the nature and extent thereof; and its connection with the respondents’ conduct.
28 The appellant’s evidence was that he sought access to his departmental file. In paragraph 25 of his affidavit of 23 July 1998 he refers to this, and to a threat he made to the Department that he would take legal action if it continued to delay sending him the file. He deposed to an understanding that it was not until January 1997 that the Department provided his files to the Western Aboriginal Legal Service and, in paragraph 26, he stated that he believed that Service obtained the files in early 1997, and that they contained a social work report by Maggie Hall dated 29 January 1991, and a psychiatric report by Dr Lewin dated 30 April 1990. He annexed copies of those reports. The appellant deposed that he did not see those reports until some time after January 1997. Thereafter he saw Dr Gertler.
29 That affidavit was read before the Master. The only objection recorded on the transcript was to Annexure “C”, which the transcript states the Master “allowed”. I assume that means that she allowed the evidence rather than the objection, although it does not really matter. Several affidavits sworn by the appellant’s solicitor, Mr Panagoda, on 23 July 1998 and 17 March 1999, were read without objection and Mr Panagoda was not required for cross-examination.
30 In his later affidavit he deposed:-
“7. I am also instructed that it was not until 1997, after the files from the Department and the reports of Dr Robert Gertler became available , that the Plaintiff was aware:-
(a) that injury of the kind described in Dr Gertler’s report had been suffered by him;
(b) of the nature and extent of those injuries;
(c) of the connection between those injuries and the Defendant’s conduct.” (My emphasis.)
It is clear from paragraph 6 that those instructions were received from the appellant.
31 That evidence, if accepted, established each of the matters about which the appellant was required to satisfy the Court pursuant to s.60I. It seems to me that it also established material facts of a decisive character relating to the causes of action, which was not within the means of knowledge of the appellant until after the expiration of the limitation period, as required by s.58(2)(a).
32 In the absence of any objection to paragraph 7 or of any cross-examination of Mr Panagoda or the appellant to establish that that evidence was inaccurate, there was, in my opinion, evidence before the Master of matters to satisfy both sections. The appellant’s complaint, as I have noted, is that the Master did not refer to this evidence, nor give effect to it and that if she had she would have, or should have, granted his application.
33 The appellant was cross-examined at length by Mr McCarthy, and I invited him to refer me to any cross-examination challenging the appellant’s assertion, as communicated by Mr Panagoda, of the state of his awareness of the matters to which Mr Panagoda deposed in paragraph 7.
34 Mr McCarthy referred me to various portions of the transcript of the appellant’s cross-examination at Tp.12 lines 35-55; Tp.13 lines 40-55; Tp.15 lines 35-55; Tp.16 lines 45-55; Tp.17 lines 1-15; Tp.19 line 55; Tp.22G line 5; Tp.24 lines 40-45; Tp.28 line 50 to Tp.29; Tpp.32-33; and Tp.34. He also referred to Tp.35.
35 At Tp.12 the appellant agreed he told Dr Gertler that he had been subjected to repeated physical abuse from his foster mother. At Tp.13 he said that he did not tell various people about being physically beaten and flogged. At Tp.15 he was cross-examined about allegedly joking at his foster mother’s funeral. At Tp.16 he confirmed that he described to Dr Gertler violence from his foster mother. At Tp.17 he seemed to agree that that violence was in relation to her disciplining him. At Tp.19 he was again asked about laughing at his foster mother’s wake and describing to Dr Gertler that she was repeatedly violent to him. At Tp.22G he agreed that he told Ms Hall that he had been sexually assaulted by a visitor to the boys’ home and because he felt shame and disgust it caused him to drink heavily. At Tp.24 he confirmed this evidence. At Tpp.28 -29 he was asked about seeing Dr Lewin in 1990 “or thereabouts” and telling him that he believed that he was rejected by his biological parents when he was aged one year. At Tpp.32-33 he described inflicting violence on others and, at Tp.34, he continued:-
“Q. Are you telling us that by the time that you were on the streets after your wardship before you went to gaol, at that time you regarded the way that you were treated in chastisement by the Salmons as being physical abuse and violence of you?
A. Well, it is, isn’t it?
Q. No, is that what you thought at that time?
A. Yes.
…
Q. When did you come to regard what you saw as the chastisement you received from them as being not chastisements but physical violence? You’ve obviously thought about this, haven’t you?
A. From an early stage because when I was at Revesby South, that was after St Luke’s, that that’s when I started fighting is that what you wanted to hear, I’m saying. That I first realised it, yeah, well, primary school.
Q. It wasn’t a realisation about the Salmons that you communicated to anyone while you were with the Salmons, was it?
MASTER: I’m sorry, I can’t follow that.
McCARTHY: He’s talking about what they were doing was physical violence towards him as he says. I’m just saying to him he didn’t communicate that to anyone.
MASTER: He’s saying that he was involved in physical violence and that he was involved in smashing kid’s heads in in fifth class. But I don’t know that that necessarily relates to the question that you are asking.
McCARTHY: I think it’s totally unresponsive, that’s why I’m trying to get him back.
TOBIN: It may be responsive.
MASTER: It may be, but it’s not clear to me.
A. He’s saying to me when did I first realise it.
Q. You have to tell us, you have got to express it so that we can understand it. You’re saying, as I understand, in primary school you started becoming violent?
A. Yeah.
Q. But the question that Mr McCarthy is asking you, I think, is when did you realise, or when did you think what the Salmons were doing to you wasn’t just normal chastisement but violence?
A. When did I realise it?
Q. Yes?
A. After I read Gertler’s report that it was coming back to then.”
At that point the cross-examination ceased.
36 This evidence established that the appellant was aware that the foster parents were being violent to him. However, it is not, in my opinion, that awareness, which grounds the Statement of Claim. It may be very different if the appellant was seeking to sue for physical injuries sustained as a result of that violence. But he is not. I have set out his allegations, which were made clear in Mr Panagoda’s affidavit. The appellant was never challenged to establish that he became aware of the psychiatric illness at any time prior to 1997, or that prior to then he was aware of its connection with the respondents’ conduct. Save for the evidence to which I have referred, which in my view did not meet this point, Mr McCarthy referred to none other. Rather the failure of the Master to have regard to this evidence was very much at the forefront of the appellant’s written submissions, but barely mentioned in those of the respondents. Therefore, the evidence of Mr Panagoda, based on the instructions he had received from the appellant, remained unchallenged, either by cross-examination of him or any relevant cross-examination of the appellant. It is the existence of this unchallenged evidence, which founds the appellant’s attack on the Master’s decision.
37 The other evidence before the Master, which was not really challenged and which is of significance, was that a neighbour of the foster parents complained to the respondents that the appellant was being subjected to physical abuse and racial discrimination by the foster parents.
The Master’s Reasons
38 The Master provided comprehensive reasons. She traced the appellant’s history with care and, commencing at paragraph 6, noted that he relied on the sections of the Act to which I have referred in relation to negligence and breach of statutory duties, and that the parties agreed that was the applicable law. The Master noted relevant authorities in relation to the extension of time and quoted s.58(2). She referred to some dispute as to whether the time limitation ran out when the appellant attained 18 or 20 years.
39 In considering s.58(2) she observed that the appellant must identify one or more material facts of a decisive character relating to the cause of action and prove, by evidence, that such fact or facts were unknown to him and not within his means of knowledge as at 2 August 1992. She observed that a material fact relating to a cause of action included the nature and extent of the personal injury so caused: s.57B(1)(b)(iv). Sub-section (v) states as a material fact “the extent to which the personal injury is caused by the negligence, nuisance or breach of duty”.
40 The Master then turned to whether material facts were decisive, and referred to s.57B(c), which provides:-
“material facts relating to a cause of action are of a decisive character if, but only if, a reasonable man, 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 his own interests, and taking his circumstances into account, to bring an action on the cause of action.”
41 In paragraph 15 of her reasons the Master noted the appellant’s submission that it was not until April 1997, when he read the contents of Dr Gertler’s report, that he became aware that his experiences as a foster child caused his current psychiatric condition. She noted the respondents’ submission that the appellant accessed and perused his files in mid to late 1996, and that Dr Gertler’s report in 1997 “did not tell him anything which he had not known or contemplated for at least seven years previously and did not cause him to change his attitude or course of conduct".
42 She continued:-
“According to the defendant, by no later than 1990 and probably some time before, the plaintiff had formed the view that he had been physically abused, sexually assaulted and otherwise mistreated and he attributed his current problems to this mistreatment and abuse.”
43 The Master commenced, at paragraph 16, to summarise the appellant’s state of knowledge up to 2 August 1992, when the limitation period expired. She accepted that he did not raise the issue of physical abuse with his foster mother during her lifetime, nor with representatives from the Department; that he perceived the floggings he received as being discipline; that he now appreciates that he grew up in an environment of recurrent physical abuse and in an atmosphere of insecurity and violence; that by the late 1980’s, prior to going to gaol, he believed that he was physically abused; and that at that time he believed that the chastisement by his foster parents was physical abuse and violence.
44 She referred to his evidence, at Tp.34, and said that she accepted that in the late 1980’s the appellant regarded the chastisement he received from his foster parents “as physical abuse and violence”.
45 In paragraph 18 she noted that from at least 1990 the appellant had been literate, numerate and able to handle government forms, and that on 27 March 1990 he told Dr Lewin that he believed he was rejected by his biological parents when he was aged one year; that he did not know why he was “put away”; and that he believed that his adoptive parents had rejected him.
46 In paragraph 19 the Master dealt with the appellant’s being charged with murder and she concluded the paragraph by stating that she had reached the conclusion that in 1990 he knew that he had suffered a personal injury, namely the sexual assault, although in 1991 he did not know that he may have had a claim in relation to the treatment he received while he was a ward of the State.
47 In paragraph 20 the Master found that after the limitation period expired, but prior to 1995, the appellant had been told by Ms Hall, and had understood, that something on his Departmental file showed that his foster father had treated him badly, which information he relayed to another solicitor and, thereafter, she referred to his examination by Dr Gertler, and his assessment of the appellant.
48 In paragraph 23 the Master stated that the appellant had given evidence, to which I have referred, Tp.35, that it was not until after he read Dr Gertler’s report that he realised that the treatment inflicted by his foster parents was not just normal chastisement but violence. In the context of the questions, answers, objections and discussion at Tpp.34 and 35, the evidence is far from clear and there was obvious room for misunderstanding. On one view the appellant’s last answer was corroborative of his case. On no view was it contradictory of it.
49 There is absolutely no doubt that the appellant appreciated that he was being physically mistreated and abused. However, at the risk of some repetition, he is not suing in these proceedings for bodily injuries received in consequence of that conduct, but for the subsequently ascertained psychiatric consequences of it.
50 In paragraph 24 the Master said:-
“I have carefully analysed and reflected on the plaintiff’s evidence. Further in cross-examination the plaintiff said that in his mind it became physical violence when he inflicted violence on other people (t32.50). He also stated that he was not really sure when he first came to the realisation that the chastisement by the Salmons was physical abuse and violence (t34.15) but he did not think that the realisation came when he was smashing someone’s head in (t34.25). I have reluctantly come to the view that by the late 1980’s but prior to 1992 the plaintiff knew that the chastisement by the Salmons constituted physical abuse and violence. The plaintiff did not give any evidence to the effect that he did not know the cause of his depression was the treatment he received as a foster child . Nor does he give any evidence to the effect that after reading Dr Gertler’s report he understood that his experiences as a foster child who was exposed to violence caused him to be violent in turn .” (My emphasis.)
51 It seems to me, with the greatest respect to the Master, that to have come to these conclusions she must have overlooked the uncontradicted evidence of Mr Panagoda, and the fact that the evidence was not sought to be put in issue by any cross-examination of the appellant. In my opinion the two findings in the concluding two sentences of paragraph 24 cannot stand with the evidence of Mr Panagoda and the absence of any cross-examination of the appellant, which would enable the Master to conclude that that evidence should not be accepted because the appellant had given incorrect instructions to Mr Panagoda.
52 Mr McCarthy’s principal submission was that the Master did not accept the evidence of the appellant. I do not, with respect, agree. The Master seems to have thought that the significant finding was that the appellant was aware that the chastisement of the foster parents constituted physical abuse and violence. But, as I have pointed out, the basis on which the appellant sues is that the consequence of that physical abuse and violence, at least in part, is alleged to have caused a psychiatric illness of which the uncontradicted evidence is that the appellant did not know until he saw both the file and the reports of Dr Gertler in 1997.
53 The Master continued, in paragraph 25, that she came to the conclusion that in 1991 the appellant was aware that he had been sexually assaulted; that in 1991 he knew that that sexual assault resulted in feelings of shame and disgust and caused him to drink heavily; and that in 1995 or 1996 he sought legal advice. She said:-
“The plaintiff has not given evidence as to when he became aware that he had a cause of action that has a reasonable prospect of success. The plaintiff has not discharged his onus of proof. The plaintiff has not established on the balance of probabilities that his experiences as a foster child caused his current psychiatric conditions.” (I think the next sentence is in error.) “He has not established that he was unaware of a material fact of a decisive character within the period stipulated in s.58(2). The plaintiff’s application for an extension of the limitation period pursuant to s.58(2) fails.”
54 Once again it seems to me that these conclusions could only have been reached by overlooking paragraph 7 of Mr Panagoda’s affidavit. Dr Gertler directly relates the appellant’s psychiatric condition to his experiences as a foster child, and the evidence of Mr Panagoda shows that it was not until 1997 that the appellant was aware either of the nature and extent of his injuries or the connection between them and the respondents’ conduct. Once this evidence is appreciated, I consider that the appellant has satisfied the tests laid down by s.58(2).
55 The Master then turned to consider ss.60G and 60I, in the course of which she also had regard to Schedule 5. In paragraph 31 she stated that to gain access to the beneficial provisions of s.60G the appellant must show that as at 2 August 1992 he was unaware of one or more of the matters identified in s.60I(1)(a); and that he did not become aware of that or those, or ought to have become of all three matters, earlier than 24 July 1994. She said that the practical effect of those provisions was to require the appellant to identify specifically what fact or facts “he claims not to have known as at 2 August 1992, which lack of knowledge meets the description in one or more of” the sub-sections; and to show, by evidence, the date on which he acquired knowledge thereof, being a date later than 24 July 1994. She also noted that the respondents did not submit that the appellant ought to have become aware of the matters in sub-ss. 60I(1)(a)(i) to (iii) “at an earlier date”, i.e. than 24 July 1994: paragraph 32.
56 She repeated that the appellant had submitted that it was not until April 1997, when he learnt of the contents of Dr Gertler’s report, that he became aware that his experiences as a foster child caused his current psychiatric condition, and:-57 The Master repeated that, for the reasons given in relation to s.58(2), in 1991 the appellant knew that he had been sexually assaulted with the consequences to which that led, and that by the late 1980’s and prior to going to gaol he knew he had suffered a personal injury. She said that by 1992 the appellant also knew that the chastisement by the foster parents was physical abuse and violence and:-
“As with s.58(2) the defendant made the same submission that by 1990 at the latest the plaintiff had formed the view that he had been physically abused, sexually assaulted and otherwise mistreated and he attributed his current problems to this mistreatment and abuse.”
“He does not give any evidence as to when he knew that he suffered a psychiatric injury namely depression. The plaintiff’s knowledge that he suffered a personal injury was acquired prior to 24 July 1994. Accordingly the plaintiff’s claim under s.60I(1)(a)(i) fails.”
58 Once again, in my opinion, this reasoning overlooks the fact that evidence was given in his case when he knew he had suffered a psychiatric illness, namely in 1997, and it is necessary in this case to link the physical abuse to the psychiatric illness. It also seems to overlook the respondents’ concession, which I have recorded in paragraph 55.
59 The Master nextly considered sub-s.(ii). She concluded that s.60I(1)(b) imposes an objective test as to when the appellant became aware of all three matters, and she held:-60 The Master, however, returned to her earlier findings of the difficulties the appellant had experienced and, in paragraph 39, she said:-
“The plaintiff may be held to have become aware of the nature or extent of his injury within the relevant period if during that period he was aware of the effect which the injury was then having upon him and of its likely future course, even though he may have been unaware of the precise pathology or medical diagnosis. On the other hand, knowledge of the medical diagnosis will not itself amount to knowledge of the nature and extent of the injury if the plaintiff is unaware of significant aspects of the prognosis, for example that the injury is permanent and will not be amenable to treatment; or that it may deteriorate with the passage of time. As long as the consequences are of a kind that the plaintiff expects, the plaintiff will be aware of the extent of the injury.”
There was no evidence that the appellant expected that the physical injuries would lead to a psychiatric condition.
61 She continued:-
“Also as previously stated the plaintiff did not give any evidence to establish that he did not know that the cause of him suffering depression was the treatment he received as a foster child.”
I have stated my reasons for respectfully disagreeing with this on several occasions.
“Nor does he give evidence that after reading Dr Gertler’s report he understood that his experiences as a foster child when being exposed to violence caused him to be violent in turn”,
which, if I may say so with respect, once again overlooks paragraph 7(c) of Mr Panagoda’s affidavit.
62 The Master said that the appellant did not give evidence to establish, on the balance of probabilities, that, after reading Dr Gertler’s reports in 1997, his experiences as a foster child caused his current psychiatric condition.
63 I am a little puzzled by this observation. Sub-s.(ii), with which the Master was dealing, is concerned with the appellant’s unawareness of the nature or extent of the personal injury suffered. He was not qualified to give any evidence, even after reading Dr Gertler’s report in 1997, that his experiences as a foster child caused his current psychiatric condition. He proved, at least at the level required on this application, that that was so through the evidence of Dr Gertler. What the appellant was required to prove, relevantly for present purposes, was his lack of awareness and, for the reasons I have given, I am satisfied he did. In my opinion the Master’s finding of not being satisfied that the appellant was unaware of the nature or extent of his injury, within the time period stipulated in sub-s.(ii), is contrary to the undisputed evidence.
64 The Master nextly considered sub-s.(iii), which she said was “concerned with ignorance of the existence of facts and omissions rather than legal conclusions”. If I may say so, with great respect, I do not think this is correct. The words in sub-s.(iii) are related to an unawareness “of the connection” between injury and acts or omissions, i.e. those words raise a question of causation.
65 The Master stated, in paragraph 41:-66 In paragraph 42 the Master stated:-
“Once again, for the reasons given earlier the plaintiff did not give evidence to establish that after reading Dr Gertler’s report in 1997 he became aware that his experiences as a foster child caused his current psychiatric condition.”
I have already stated my reasons for respectfully disagreeing with this assessment.
67 In considering the Master’s reasons I have dealt, essentially, with the submissions on behalf of the appellant.
“Nowhere in his affidavit nor in his evidence does the plaintiff disclose what he understood were the acts or omissions upon which he relies to found his cause of action. Nor does he disclose when he became aware of those acts and omissions.”
In my respectful opinion, this analysis cannot be accepted. The matters about which the appellant was able to give evidence were the physical mistreatment and abuse to which he was subjected. There was an abundance of evidence from the appellant about that. Indeed, Mr McCarthy obtained the evidence in great detail in the passages to which I have referred. The critical question, having regard to the way in which the claim was formulated, was whether those alleged acts and omissions gave rise to personal injury in the nature of a psychiatric illness and, as to that, the evidence of Dr Gertler is that they did. Finally, the uncontradicted evidence is that whilst he was not aware that the alleged acts or omissions, of which he was clearly aware, gave rise to a psychiatric illness until 1997, he became aware of that fact in 1997 and of the connection between that personal injury and the respondents’ conduct. In these circumstances, however, the Master found that the claim under sub-s.(iii) failed.
68 In their written submissions the respondents submitted that the findings of the Master were open to her on the evidence. There was a detailed reference to portions of the evidence, which dealt with various peripheral matters, and, in paragraph 6, the following submissions were put:-
The Submissions On Behalf Of The Respondents
“6.1 By no later than 1990 and probably some time earlier, the Appellant had formed the view that he had been physically abused, sexually assaulted and otherwise mistreated. He felt that his then current problems were caused by this mistreatment and abuse.
6.2 By 1990 he had discussed these feelings with Ms Hall and Dr Lewin. Ms Hall had reviewed Departmental files including records of the Balford complaint and had advised the plaintiff about taking some sort of action. The Appellant may not have been in a good position to follow this up in 1990-1991 but from early 1992 the appellant was out of gaol and hence in a position to follow this up. By late 1992 the Appellant was studying successfully and thereafter completed a number of courses of study.
6.3 At any time from late 1992 (at the latest) the Appellant was in a position to commence proceedings. He had the wherewithal to, and did in fact, raise these matters further with Mr Healey in 1994, Mr Sheldon in 1995 and Ms Hall at some time reviewing her notes of the files. He accessed and perused his Departmental files in mid to late 1996.
6.4 The report of Dr Gertler in 1997 did not inform the Appellant of anything which he had not known or contemplated for at least seven years previously and did not cause him to change his attitude or course of conduct. Between 1992 and 1997 neither the Appellant nor those he consulted commenced proceedings.”
69 These submissions continue the same error which, if I may say so with respect, infect this part of the Master’s reasons. It is quite wrong to submit, in the light of Mr Panagoda’s unchallenged evidence, that Dr Gertler’s reports of 1997 did not inform the appellant of anything, which he had not known or contemplated for at least seven years previously. It told him, firstly, that he had a psychiatric illness; secondly, of the nature and extent of that injury; and thirdly, of the connection between that injury and the respondents’ conduct.
70 The respondents’ submissions make no reference to Mr Panagoda’s affidavit, nor did Mr McCarthy make any submissions as to how, in the light of all the evidence, it should be treated. The reason, I have no doubt, is that in the absence of any objection to it and of any cross-examination of the appellant to subvert the information he was said to have given to Mr Panagoda, the evidence stood as a complete answer to the requirements of the relevant sections of the Act.
71 In my opinion, the Master was in error in concluding that the appellant had not established the grounds required by ss.58, 60G and 60I and the appeal on this ground must be allowed.
Just And Reasonable
72 The Master dealt with the respondents’ submission that the appellant did not have a cause of action. She was of the view that he bore an evidentiary and persuasive onus which, in the absence of concession, required material to be adduced, which demonstrated “that the dilatory plaintiff has a real case to advance”. She dealt with a number of evidentiary matters relating to the policies which applied and, at paragraph 59, stated the question to be decided at trial as being whether the respondents’ conduct “accords to the standard of reasonable care demanded by the law”, which she considered should be decided in the light of the observations of Barwick CJ in Maloney v Commissioner of Railways (1978) 18 ALR 147 at 148.
73 The Master dealt with the various ways in which the case was propounded by reference to negligence, breach of statutory duty and fiduciary duties and, after a consideration of various authorities and the evidence, she concluded, paragraph 66, by stating:-74 The Master turned to consider whether time should, in effect, be extended in the context of the ability for there to be a fair trial. She referred to the decision of the Court of Appeal, to which I shall have to return, in Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497, (“Williams (No 1)”) and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. She set out passages from the judgments of various Justices, including that in the judgment of Toohey and Gummow JJ at p.548, where their Honours said:-
“It is my view that there is evidence to demonstrate that the plaintiff has a real case to advance.”
For reasons I shall give, I consider this was a correct finding.
75 In paragraph 83 she said:-
“A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application.”
The Master noted that there was no evidence that witnesses, other than the foster mother, who has died, were not available, and she said that whilst the foster mother could not give her version of events, the foster father and his children could; that the foster mother was mainly involved in the chastisement of the appellant, but the foster father also played a role; and that while the foster father may not have been at home all of the time the children were and their evidence, together with his, “can fill in the gaps”. She concluded that she was not satisfied that the respondents suffered significant prejudice or would be unable to obtain a fair trial.
“For the reasons given earlier, the plaintiff has not passed through the s.58(2) or s.60I gateways and his action fails. However, if I am wrong and the plaintiff has passed through a gateway then I would have considered that the plaintiff had discharged his onus and I would have been satisfied that it was just and reasonable to extend time.”
76 It was agreed that the Master’s decision was an interlocutory one and depended on the way in which she exercised her discretion. It was submitted by Mr McCarthy that she had failed to exercise her discretion properly in that she had found that the appellant had a real case to advance, and in that she had not properly taken into account the unavailability of the foster mother.
77 I find it convenient to deal with the second point first. On the second day of the hearing Mr McCarthy said to the Master:-
“The position of the defendants is that save for the usual prejudice associated with delay, the defendants do not propose to contend that they suffer any significant prejudice in respect of availability of Departmental staff or records. I discussed that matter with Mr Tobin before we came over to Court this morning. I am not sure if he would wish to speak to Mr Wells as a result of what is now the position of the defendants in this matter.”
78 Mr McCarthy did not reserve the right to make a submission that because of the absence of the foster mother prejudice would be suffered and, it seems to me, that such a statement, without any such qualification, could well lead the Master to believe that no point was being taken in relation to her absence.
79 However that may be, as I have said, the matter was a discretionary one for the Master, who took into account the effect of the foster mother’s death, and, in all the circumstances, I am not satisfied that there has been shown to be any error by her in the exercise of her discretion.
Does The Appellant Have A Case?
80 The respondents’ principal submissions were that the appellant had not established that he was able, at law, to pursue any of the causes of action pleaded. The respondents sought to raise these points by way of a Notice of Contention. The submissions were, as I understood them, that the facts of this case were so closely aligned to those in Williams v Minister, Aboriginal Land Rights Act 1983 (1999) 25 FamLR 86, (that being the decision on the facts in Williams (No 1) and to which I shall refer as Williams (No 2)), in which, on the facts, Abadee J held that there was no duty at common law, no duty pursuant to any relevant statute and no fiduciary duty, that I should, as a matter of comity, follow that decision and hold that there were no such duties owed by the respondents to the appellant. As Mr Tobin submitted, I was being asked to determine this case on the former demurrer proceeding. In the light of the respondents’ submission, it is important to decide what test must be met, in a case such as the present, to decide whether it is just and reasonable to allow proceedings to go forward.
81 Mr McCarthy submitted that before the Master his clients suffered from the problem that the decision of Abadee J had not been given and, therefore, the law had not been clarified. It seems to me, if I may say so with respect, that that problem is still being experienced because I was informed that Williams (No 2) is the subject of an appeal to the Court of Appeal and, whilst I have not seen the Notice of Appeal, Mr McCarthy conceded that it was unthinkable that the appeal would not involve a challenge to his Honour’s conclusions that, in the circumstances of that case, there was no duty of care at common law or under statute and no fiduciary duty. It may not be necessary for the Court of Appeal to determine those points in that case, because the view may be taken that the findings of fact are such that even if all or any of those duties existed, Ms Williams cannot establish that there was a breach of them. In saying that I am not to be taken in any way as presuming to suggest how the appeal will be run nor, more particularly, how it will be dealt with by the Court of Appeal. I am simply observing that the determination of an appeal does not, of necessity, involve a determination of all issues, which may be raised on its hearing, even if the grounds are taken, and that the appeal in Williams (No 2), assuming it goes ahead, will not necessarily determine the legal issues to which I have referred.
82 I am also concerned about determining these difficult legal questions at this stage in the absence of factual findings on the evidence adduced on the hearing of this case. It has been made clear in many cases that decisions on difficult and developing questions of law should await findings of fact.
83 Against this background I shall consider the type of case, which an applicant must make out to obtain an extension of time. This was considered by the Court of Appeal in Williams (No 1). Studdert J, at first instance, refused the application under the Act to extend the time. The Court of Appeal, by majority, Kirby P and Priestley JA, Powell JA dissenting, allowed the appeal.
84 At p.508 Kirby P considered a submission that Studdert J had overstated the extent to which Ms Williams had to establish a cause of action to secure the extension sought. His Honour had referred to a “requirement” for her to establish an available cause of action, and that “it must now appear that the evidence to establish her cause of action exists”. Kirby P observed that it was submitted that this involved a mis-statement of law, which vitiated the order under appeal. His Honour continued:-85 Priestley JA, at pp.515-516, after stating that he broadly agreed with the reasons of Kirby P, continued:-
“To the extent that it was submitted that the need to establish a viable cause of action was irrelevant to the discretion invoked (for example, by reason of the terms of s.60G by contrast to the former provisions of s.58(2)(b) of the Limitation Act 1969), I would reject this assertion. It is contrary to the authority of this Court: see James Hardie & Co Pty Limited v Wootton . By the same token, it is obviously unnecessary for a claimant to establish a case in the detail that would be required at the trial. The reason for this was sufficiently explained by Hunt J in analogous circumstances in Martin v Abbott Australasia Pty Limited [1981] 2 NSWLR 430 at 437. The alteration of the legislation has not removed the need to demonstrate, in an appropriately preliminary way, the apparent viability of the action and, thus, the utility of providing the extension of time sought . To permit an obviously hopeless case to proceed would be to condone the harassment of a defendant otherwise protected by a time bar. That could not be a proper exercise of the judicial discretion afforded by parliament. It would condone the unreasonable and be far from just: cf Briggs v James Hardie & Co Pty Limited (1989) 16 NSWLR 549 at 564. I see nothing in the remarks of Studdert J which indicate that his Honour was imposing an excessively onerous test or approaching the criterion in other than the correct preliminary (and necessarily tentative) way . Only if there is evidence which, in the preliminary hearing initiated by the motion for extension, shows that it is just and reasonable to allow the action to be brought, will the order of extension be granted . I do not consider that Studdert J asked himself the wrong question. Nor do I believe that it was unreasonable to take closely into account the concern which ultimately decided the matter for his Honour, namely the prejudicial effect upon the respondents of the lapse of time which Ms Williams sought to cure by the extension claimed.” (My emphasis.)
“Some of the issues Mrs Williams seeks to raise in her proceedings are, in my opinion, important. The respondents contend these issues cannot or should not now be explored in the Courts. Whether either form of that contention should be accepted is itself an important question.
To enable a properly satisfactory and fully explored answer to be given to that question and the preliminary ones Mrs Williams wishes to raise, it seems to me desirable that Mrs Williams have the opportunity of putting all relevant evidence before the Court at a trial, rather than that the matters of significance which this case raises should be dealt with on the incomplete state of the evidence at present before the Court.
These considerations have influenced my general agreement with the approach of Kirby P. That approach involves conclusions, favourable to Mrs Williams, about the arguability of a number of issues. I have reached some of these conclusions only with hesitation and I recognise they may be vulnerable to a strict approach. However, this case seems to me pre-eminently to be of the kind where a broad approach should be taken to questions of arguability of legal propositions which may be novel but which require careful consideration in the light of changing social circumstances.”
86 There was no suggestion in either judgment that the “strike out” test should be applied, but rather, as the President said, that it should be established that a cause of action existed in the sense of an apparently viable cause of action, such that there is utility in providing the extension of time sought.
87 The question of the type of case to be established was considered by the Court of Appeal in Commonwealth of Australia v McLean (1997) 41 NSWLR 389. At p.395, Handley and Beazley JJA said:-
“The Judge carefully reviewed all the relevant authorities, and we entirely agree with his analysis. In particular we agree that the references in Harris v Commercial Minerals Limited (1996) 186 CLR 1 at 8 to the onus of proof of certain matters borne by an applicant are not authority for the proposition that those matters must be proved as facts on an application for an extension. No such issue was before the High Court in that case, and the references are merely descriptive.
Section 60G and s.60I are clearly intended to operate together. The requirement in s.60I that the Court be satisfied of various matters must be read as requiring no higher proof from an applicant on matters which form part of the cause of action than is required by s.60G(2). When these provisions are read together, it becomes clear, as the Judge held, that s.60I requires the Court to be satisfied that the applicant was not aware of the matters referred to, but does not require proof of those matters as facts .
If an applicant had to satisfy the Court of the existence of ingredients of his or her cause of action, s.60I would not only impose requirements which were inconsistent with s.60G(2) but it would have increased the burden of proof on an applicant above the level previously required by s.58(2). It is clear from s.60G(2) that this was not the intention of parliament.
We also endorse the Judge’s interlocutory ruling disallowing cross-examination of the applicant’s expert. An application for extension is not a trial, or a dress rehearsal for the trial. The Court is concerned with whether there are serious questions to be tried, and once this threshold is established on the relevant issues, cross-examination or further cross-examination on those issues can serve no useful purpose . We respectfully adopt the Judge’s reasons on these matters. These grounds of appeal have not been established.” (My emphasis.)
88 In the present case it was not in issue that the appellant was made a ward of the State and came under the authority of the respondents; and that the respondents, pursuant to the authority vested in them, placed him in foster care with people of their choosing. There was evidence that the appellant suffered severe chastisement and floggings at the hands of his foster parents, and at least one sexual assault subsequently. There was also evidence of a neighbour’s complaint to the respondents that the appellant was being mistreated and subjected to racial discrimination at the hands of the foster parents. That provided a substantial factual starting point for the cause of action. The evidence of Dr Gertler established, sufficiently for present purposes, that being subjected to that conduct led to the appellant’s suffering a psychiatric illness which, if established, would be appropriately compensable. Mr McCarthy did submit that it would be very difficult to prove damages. At the level at which I am presently considering the case, I do not see why, if tortious conduct causes a person to develop a psychiatric illness, that person, at least prima facie, is not entitled to recover damages in consequence thereof.
89 In these circumstances I am satisfied that the appellant has established the type of case to which Kirby P and Handley and Beazley JJA were referring. The question which then arises, having regard to my earlier conclusions, is why he should not be allowed to pursue it. The answer to that question, so Mr McCarthy submitted, lies in the decision of Abadee J in Williams (No 2). As I have said his submission was that the facts of that case were so similar to the facts of the present, that I should merely apply his Honour’s legal conclusions, based on the facts he found, to the presumed and thus far established facts in the present case. I am not prepared to do that.
The Notice Of Contention
90 In his written submissions Mr McCarthy stated that the respondents contended that the decision of the Master ought to be affirmed for grounds other than those relied upon by her, namely that the appellant’s relationship with the respondents does not give rise to any obligation at common law, under statute or in equity. He dealt firstly with the common law duty of care and submitted that the first and second respondents are alleged, in these proceedings, to have obligations to the appellant “which on analogous facts have been rejected in Williams”. The submission continued that as in that case the relationship of the appellant and the respondents “is most aptly described as one of substitute care” arising from the guardian/child relationship provided for in the Child Welfare Act 1939, pursuant to which the Minister became the substitute guardian of the appellant “in contrast to others, who from time to time had custody/care of the appellant, including the foster carers”.
91 The submission continued that the common law of Australia recognises that the relationship between parent and child is “a moral duty of imperfect obligation and not a relationship which creates duties, which if breached, sound in damages”. Reliance was placed upon the statement of Barwick CJ in Hahn v Conley (1971) 126 CLR 276 at pp.283-284 that:-
“.. the moral duties of conscientious parenthood do not as such provide the child with any cause of action when they are not, or badly, performed or neglected … There is no general duty of care in that respect imposed by the law upon a parent because of the blood relationship.”
92 In his oral submissions, Mr McCarthy conceded that there were circumstances in which a parent could be sued for a tortious act causing injury to the child. He instanced the negligent driving of a motor vehicle by a parent in which the child was a passenger, and, more appositely for the present case, an assault by a parent on a child.
93 Mr McCarthy’s written submissions continued that the same policy reasoning, as informed the judgment of Barwick CJ in relation to the moral obligation for the upbringing of children, “should apply equally to substitute carers such as foster carers (who are not professionals trained in child care or management) and to other substitute carers provided by the respondents, whether the actual personnel are professionally trained or otherwise”. The written submissions continued that the appellant’s complaints related to “ordinary parental discretion, conduct and decision-making with respect to the upbringing of the appellant, and can be contrasted with the ward’s complaints in Bennett v Minister of Community Welfare (1992) 176 CLR 408, where the negligence was causative of Mr Bennett’s loss of a right of action”.
94 However, the present case is not one, as Williams (No 2) was, where there are no specific complaints about the way in which the appellant was treated. In Williams (No 2), at paragraph 25, Abadee J stated the nature of Ms Williams’ case thus:-
“As will be seen from the above, the case does not involve what might perhaps be described as a specific single identifiable act or omission occurring at a particular time and constituting, inter alia, negligence. No specific incident, happening or event in the history from 1942 to 1960 is relied upon as giving rise to the plaintiff’s claimed psychiatric or psychological conditions. Nor is there any identifiable single casual act of negligence alleged. The conduct (essentially ‘omission’ conduct) relied upon to constitute negligence is said to have generally been of an ongoing nature throughout the period referred to.”
95 Mr McCarthy accepted that this set forth accurately the issues with which his Honour was concerned. It is immediately apparent that there is a significant difference from the present case. The appellant relies upon specific incidents of physical mistreatment, racial abuse and sexual assault in circumstances where, at one stage, a concerned neighbour saw fit to complain about the way in which he was being treated by his foster parents in their home.
96 It may be, at the end of the day, that the evidence does not support the allegations made by the appellant, or that the Court comes to the view that the facts established by the evidence fall within the category of conduct, which does not give rise to a breach of any duty of care. But it seems to me that until the facts are established one cannot characterise the matters as pleaded, and thus far established to the requisite degree, as necessarily, or perhaps at all, giving rise to a situation where there has been no breach of any common law duty of care.
97 Mr McCarthy’s submissions dealt, at some length, with matters of policy that might be affected by any finding of a duty of care and which were addressed in Williams (No 2), including financial consequences for child-caring bodies and the reduction in the provision of substitute care services. The submissions continued that “manifestly” to impose duties on substitute carers, which are not imposed on natural carers, would have a detrimental effect on the supply of foster carers and the charities that currently supply them; on the availability of substitute care and like services; on the practicability of supervision of foster parents by the Minister; on the nature of foster care by demanding unrealistic standards of care of volunteers, who are fulfilling a community need; and on the foster carer/child relationship whereby the law would mandate favouritism for the foster child, rather than encouraging treatment in a like manner to the other children of the foster carer.
98 The submission continued that the imposition of such “legal” duties on substitute carers would be unreasonable, given that the natural parents do not have any such “legal duties”, and would be counter-productive “as it would compromise the core value of fostering, which is to afford the ward the opportunity to benefit from being part of a family”.
99 These policy considerations may well be ones to which regard will have to be given, but it will be noted that they stem from the concept of a “moral” rather than a “legal” relationship. It was conceded by Mr McCarthy that a child cannot, in appropriate circumstances, be precluded from suing his or her parents. Accordingly, it seems to me that the foster parent cannot be placed in any better position, in that regard, to the natural parent.
100 It may also be argued, and in my respectful opinion there would be much force in this argument, that as a matter of policy children, who are basically unable to protect themselves and, therefore, find themselves subject to the control of the respondents, are entitled to expect that they will not be placed into foster care in circumstances where they are likely to be mistreated and, if they are, once again as a matter of policy, that the person with the ultimate control over the foster caring situation should be held to be negligent in failing to act in the child’s interests, if it comes to that person’s knowledge that the child is being mistreated and that person fails to act.
101 It also seems to me that these policy considerations, which no doubt flow to a large extent from the relevant legislation, have to be considered in the light of whether they are, in law, policy matters or operational matters: Pyrenees Shire Council v Day (1998) 192 CLR 330 and Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431. This area of the law does not, in my respectful opinion, seem to be finally settled, and certainly it is not resolved in circumstances where the facts are not established: Air Services Australia v Zarb (Court of Appeal - 26 August 1998 - unreported). In refusing special leave to appeal to the High Court both Gleeson CJ and Hayne J referred, in argument, to the need to establish the facts before considering issues of law.
102 Mr McCarthy nextly submitted that in the light of the facts and circumstances of this case “it is not just and reasonable to recognise a ‘legal’ duty of care owed by the respondents to the appellant”. The basis for this submission was that as in Williams (No 2), the appellant’s complaints about breaches of legal obligation by the first and second respondents have no appropriate analogy in existing law.
103 Abadee J commenced to consider remedies under the law at paragraph 95. He accepted that the Courts cannot provide a solution for every social problem, including problems arising from all human relationships including those of nurture and nature; that there is a distinction between the role of the Courts and the legislature; and that in determining the meaning of “reasonable” in the statement of the common law duty of care, the Court cannot require perfection or the use of hindsight. So much, if I may say so with respect, is not in issue. His Honour continued:-104 The circumstances with which his Honour was dealing in Williams (No 2) are graphically illustrated in the concluding sentence of paragraph 101:-
“The common law cannot provide a remedy for all life’s accidents, which are the fault of no person .” (My emphasis.)
He also observed, paragraph 101, that even if there is error, not every error is to be equated with a negligent error giving rise to an entitlement to recover damages. These propositions are not in doubt, but each day the Courts determine whether an accident is the fault of a person and, if it is, whether that fault constitutes a right in the person injured to recover damages.
“Even if there was error and I do not find any in the circumstances of this case, it would not in any event amount to negligent error, for reasons that will appear.”
Once again, his Honour was pointing up the need to find the facts.
105 His Honour also drew heavily on an analogy between “bad parenting” or “bad upbringing” by natural parents, and the position of a substitute or a non-biological carer to provide maternal care “of the type that a natural mother could or might be expected to ordinarily provide …”.
106 It seems to me, with respect to the careful submissions made by Mr McCarthy in this regard, that one cannot generalise to the extent which his submissions require me to do and, further, that Williams (No 2) does not provide any support for such generalisation. Each case will have to be decided after its particular facts are determined. It may well be that once the facts are determined the legal principles, which Abadee J applied, will apply to those found facts and deny a plaintiff, and perhaps the appellant in this case, the right to recover. However, one cannot simply assert that because there appears to be some commonality of facts in Williams (No 2) to the present case, that will lead inevitably to the same conclusion to which his Honour came.
107 Mr McCarthy’s written submissions continued that the relationship between the appellant and the respondents should not “in these circumstances give rise to a duty of care as alleged”. The reason advanced is that the reasonable foreseeability test must be subject to an “intelligible limit to keep the law of negligence within the bounds of commonsense and practicality”. Reference is made to the judgment of Gleeson CJ in Perre v Apand Pty Limited (1999) 73 ALJR 1190, to which Abadee J referred in paragraph 805. Whilst the full range of Perre will have to be worked out on a case by case basis, it does not immediately appear to me why, if the appellant is able to establish negligent conduct leading to his psychiatric condition, in the particular circumstances of the case he wishes to bring, the foreseeability test would preclude his recovery. It may or it may not. Whether it does or not will, once again, depend on the findings of fact.
108 Mr McCarthy’s submissions then turned to the statutory relationship under the Child Welfare Act. He referred to various sections of the Act and submitted that pursuant to them the Minister is the statutory guardian throughout the relevant period. The submission continued that the issue was what legal obligations the statute imposed on the guardian and what, if any, obligations did the common law then impose upon the Minister, and that s.23(1)(g) “appears” to provide a discretion exclusive to the Minister and unconfined. The submission was that the appellant would require a modification of the statutory discretion to establish the duties alleged. He continued that the acts and conduct of the respondents relied on by the appellants were within the ambit of the respondents’ statutory discretion, and if exercised erroneously were only errors of judgment within the ambit of that discretion and were not negligent. This, so it seems to me, raises once again the issue of policy and operational provisions. These cannot be resolved without final factual findings.
109 The difficulties inherent in this area of the law were considered in Zarb. It must be remembered that that was a case involving an application to strike out originating process as failing to disclose a cause of action. Thus the principles in cases such as General Steels were applicable. None-the-less, the Court considered the various cases distinguishing between policy and operational considerations. I find it unnecessary to further encumber these reasons with references to the authorities on that point. Suffice to say that in this area of the law, it could not be said that there was not an available cause of action based on a perception of the meaning of the statute without an examination of the facts.
110 I am supported in this view by the decision in Cubillo v Commonwealth of Australia (1999) 163 ALR 395. The facts in that case were that the applicants were part Aboriginal persons who claimed that, as children, they were removed from their families and thereafter detained in institutions against their will until the ages of 18 and 16 years respectively. The Statement of Claim pleaded four causes of action against the Commonwealth for wrongful imprisonment, breaches of statutory duty, breaches of a general duty of care, and breaches of fiduciary duty. The Commonwealth sought orders that the Statement of Claim be struck out and the action dismissed.
111 Under the relevant legislation of the Northern Territory, the Director of Native Affairs was the legal guardian of every Aboriginal and one applicant alleged that her removal and detention was in breach of the duty owed to her by the Director as her guardian, including his conduct in delegating the roles and duties of guardian over her to institutions in which she was detained and failing to supervise the institutions properly or at all.
112 O’Loughlin J dismissed the interlocutory application not being satisfied that there was not a real question to be tried consistently with the General Steels test. Once again this was a case involving a strike out application. The headnote disclosed that his Honour was of the view that the various claims made by the Commonwealth as to the inadequacy of the originating process, which substantially match the claims made by the respondents in the present case, could not be determined until the facts had been found. He held that it would be premature to hold that the applicant had failed to make out a case in various regards, including the obligation to take care at common law and under the statute and in relation to fiduciary duty, until the facts were decided.
113 Mr McCarthy relied upon the first portion of a passage of his Honour’s judgment at p.426, where he said:-
“This Court has no jurisdiction to review the desirability of policies underlying acts of the parliament. It is therefore not open to the applicants to ask this Court to review the policies that were enacted in the Ordinances and embodied in the powers conferred by the Ordinances. Those provisions, being valid laws, bind this Court and bind the applicants. But, as I have said, I understand the applicants to be pursuing a different course; they seek to establish that there was an indiscriminate policy of removal and detention which was not authorised by statute. That particular argument, if successful, may, of course, take the case out of the realm of ‘breach of statutory duty’ altogether, leaving the applicants to rely on their remaining causes of action. But as to this, counsel for the Commonwealth acknowledged, during the course of argument, that the exercise of power under the Aboriginal Ordinance could miscarry if, for example, it was exercised for a malicious purpose or for an objective that was foreign to the mandates of the legislation.”
However, in the whole passage his Honour made clear the necessity to look at the particular facts and, in these circumstances, he was of the view that it was premature to decide that point and, at p.427 paragraph 95, noted, with approval, that Studdert J in TC v New South Wales (1999) NSWSC 31:-
“… accepted the decision of the High Court in Pyrenees Shire Council v Day as general authority for the way in which a private right of action may arise from the terms of a statute and the claimant’s membership of a class which the statute is intended to protect.”
114 Mr McCarthy relied upon the findings of Abadee J in relation to statutory duty. At paragraph 676, his Honour noted the argument on behalf of Ms Williams that the primary relevance of the provisions of the Child Welfare Act 1939 was that they imposed duties on the Board and concomitant powers to perform the duties, and that the statutory duties were exercised by the Board to create a relationship with the plaintiff, which attracted common law duties of care and fiduciary duties. His Honour said that no authority was quoted in support of the submission, although he referred to that portion of the judgment of Kirby J in Romeo at p.472. He continued that he was left with the impression that Ms Williams’ argument advanced in support of the reliance upon the statutory duty was not regarded by Senior Counsel appearing for her as being strong, it not having been pleaded in the original Statement of Claim, nor the subject of any ruling by Studdert J. Further it does not appear to have been raised in the Court of Appeal.
115 His Honour was of the view, paragraph 681, that there was no “actionable statutory duty at all”. He did not consider that the provisions upon which reliance were placed were intended to give a right of action in tort, and that they did not impose upon the defendants any special statutory duty or liability to the plaintiff enforceable by an action for damages independently of the ordinary principles of the common law of negligence, for which he placed reliance upon the decision of Deane J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at p.500.
116 In paragraph 683 his Honour observed that some of the recent authorities dealing with actions for breach of statutory duty were considered in Cubillo, noting that O’Loughlin J considered that prima facie the plaintiffs had private rights of action for breach of statutory duties available to them. However, his Honour was not persuaded that he should follow that line of reasoning and he referred to various other authorities, which, he considered, confirmed him in that view.
117 It will be immediately apparent that, although Abadee J and O’Loughlin J were considering the matter from somewhat different perspectives, i.e. Abadee J was looking at it from a trial point of view, whilst O’Loughlin J was concerned with a strike out application, there is a difference of view as to the scope and applicability of statutory duty, at least until the facts are found. I think, if I may say so with respect, that it is also important to have regard to the facts to determine whether the activities were based on policy or operational matters.
118 I also consider that it is appropriate to have regard to the statements of Studdert J in TC v State of New South Wales. In that case his Honour considered whether a separate right of action could arise under the statute, notwithstanding, as appears in paragraph 157, that it was not contended that the Child Welfare Act gave rise to a statutory cause of action. His Honour did so in the context of considering whether the defendant owed to the plaintiff a duty of care at common law by adopting the three stage approach employed by Kirby J in Pyrenees. In the course of his Honour’s comments on this aspect he noted that s.148B(5) of the Child Welfare Act had no real counterpart in the legislation considered by the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633.
119 I have referred to the various authorities, although probably not in sufficient detail to do full justice to them. However, I believe that what I have said is sufficient to indicate that it could not be said, on the test applicable to determine whether there is a cause of action for present purposes, rather than what might be the higher test for determining whether a pleading should be struck out as failing to disclose a cause of action, that there is not an arguable case as to whether a statutory duty was owed and breached.
120 Nextly, Mr McCarthy submitted that the relationship of child and guardian did not give rise to a fiduciary obligation. He relied on the decision of the House of Lords in Henderson v Mevrett Syndicates [1995] AC 145 and Williams (No 2) at paragraph 740. He submitted that one first had to find the fiduciary obligations and then prove that such obligations were breached. His submission continued that if the basal relationship of parent/child does not give rise to fiduciary obligations then the derivative or substitute relationship between the respondents and the appellant should not entail any greater fiduciary obligation extending beyond that for which it is substituted by statute.
121 I am not satisfied that there cannot be a fiduciary relationship. In Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218 McHugh J said, at p.317:-122 In Williams (No 1), Kirby P considered the existence of a fiduciary relationship at length. His Honour was of the view that certain Canadian authorities should be followed and considered that part of the error at first instance in refusing to extend the time was the fact that the claim for equitable compensation for breach of fiduciary duty could not be disposed of by the limitation point, but would, peremptory relief apart, be required to proceed to trial. He continued, pp.510-511:-
“The powers which the parent exercises on behalf of the child are exercised in the course of a fiduciary relationship. At all events, the role of the parent, when acting for the benefit of his or her child, and the role of a fiduciary are sufficiently similar to make at least some of the principles concerning fiduciaries applicable to the parent-child relationship.”
123 He posed the question whether the action for breach of fiduciary duty was so hopeless that the failure to have regard to it constituted legal error. He considered it did amount to such error and continued:-
“The evidence relevant to the claim for breach of fiduciary duty would be substantially the same as the evidence relevant to the claim for damages for the torts of negligence and wrongful detention. If a court concluded that a claim for breach of fiduciary duty was bound to be tried, it would seem strongly arguable that the alternative causes of action upon which the same plaintiff relied at common law should be heard at the same time.”
“The Board was in the nature of a statutory guardian of Ms Williams. The relationship of guardian and ward is one of the established fiduciary categories: see Hospital Products …; Bennett … . The Board was, in my view, arguably obliged to Ms Williams to act in her interest and in a way that truly provided, in a manner apt for a fiduciary, for her ‘custody, maintenance and education’. I consider that it is distinctly arguable that a person who suffers as a result of want of proper care on the part of a fiduciary, may recover equitable compensation from the fiduciary for the losses occasioned by the want of proper care …”
124 The basis of Mr McCarthy’s submission, which was put in absolute terms, that the relationship of child and guardian does not give rise to a fiduciary obligation was Paramasivan v Flynn (1998) 160 ALR 203. In that case the appellant commenced proceedings in the Supreme Court of the Australian Capital Territory against the respondent claiming damages for assault and breach of fiduciary duty at a time when the respondent was the appellant’s guardian. An application was unsuccessfully made at first instance to extend the limitation period and the Full Court dismissed the appeal. Their Honours commenced to consider fiduciary claims and their application to limitation law provisions at p.214. They referred to the pleadings and to the significant problem that the appellant had not attempted to define, with any precision, exactly what the circumstances were, or where they occurred, which gave rise to the alleged fiduciary relationship. Nor had the appellant elaborated the precise scope or content of the fiduciary duties.
125 Commencing at p.218, their Honours considered the general principles relating to fiduciary duties and the decision of the Supreme Court of Canada in M(K) v M(H) (1992) 96 DLR(4th) 289, in which it was held that the relationship of parent and child was fiduciary, giving rise to a fiduciary duty to protect the child’s well-being and health, and that incest was a breach of that duty. Their Honours also referred to the decision in Williams (No 1), which they noted preceded that of the High Court in Breen v Williams (1996) 186 CLR 71, in which their Honours discerned disagreement with several aspects of recent Canadian approaches to the development of the law to which they referred and, at p.221, concluded:-
“All of those considerations lead us firmly to the conclusion that a fiduciary claim, such as that made by the plaintiff in this case, is most unlikely to be upheld by Australian Courts. Equity, through the principles it has developed about fiduciary duty, protects particular interests which differ from those protected by the law of contract and tort, and protects those interests from a standpoint which is peculiar to those principles. The truth of that is not at all undermined by the undoubted fact that fiduciary duties may arise within a relationship governed by contract or that liability in equity may co-exist with liability in tort. To say, truly, that categories are not closed does not justify so radical a departure from underlying principles. Both propositions, in our view, lie at the heart of the High Court authorities to which we have referred, particularly, perhaps, Breen .”
126 In Cubillo O’Loughlin J considered the claim for breach of fiduciary duty. His Honour traced through the various cases, noting that the fiduciary relationship was said to arise because of the role and functions of the Commonwealth’s servants and agents in the removal and detention of the applicants and because of the Commonwealth’s powers over, and its assumption of responsibility for, Aboriginal people in the Northern Territory. It was also said to arise because of the powers, obligations and directions of the directors and the vulnerability of each applicant to the exercise of them: paragraph 115.
127 At paragraph 124 O’Loughlin J noted that the High Court in Northern Land Council v The Commonwealth (No 2) (1987) 75 ALR 210, was of the view that the question whether there was a fiduciary relationship was to be resolved at trial.
128 In paragraph 126 his Honour referred to reliance upon the decision in Bennett and to the statement in the joint judgment of Mason CJ, Deane and Toohey JJ at p.411:-129 His Honour referred to Williams (No 1) and to Paramasivan. It was pressed upon him that he should regard himself as bound to hold, as a result of that decision, that on the pleadings the applicants did not have a cause of action against the Commonwealth for breach of fiduciary duty. He noted the refusal of the Full Court to follow the Canadian decision to which I have referred, which he contrasted with the decision in Williams (No 1) to follow it. He referred to the Full Court’s reliance on the decision of the High Court in Breen v Williams and, at paragraph 134, said:-
“It is not now in question that there was a duty of care owed by the Director of Community Welfare (the Director) to the appellant and that there was a breach of that duty (for which, it is agreed, the minister was vicariously liable). In the Courts below, the duty of care appears to have been equated to, even derived from, a fiduciary duty owed by the Director to the appellant arising out of his statutory office as guardian. That fiduciary duty was a positive duty to obtain independent legal advice with respect to the possible existence of a cause of action on the part of the appellant arising out of the circumstances in which he sustained an amputation of four fingers of his left hand.”
It may well be arguable that there was a positive duty to have appropriate regard to the neighbour’s complaint, and to take action, if it was found to be justified, to protect the appellant. Reference was also made to the judgment of McHugh J at p.427, where his Honour said:-
“Nevertheless, it is not open to doubt that, in addition to the fiduciary duty which the Director owed to the appellant, the circumstances of the guardianship and the injury to the appellant while under the care and control of the Director, gave rise to a common law duty on the part of the latter to take reasonable care to ensure that the appellant did not suffer economic loss by not being advised of his rights in respect of that injury.”
“But the warning in Northern Land Council v Commonwealth not to determine the nature of any relationship in the abstract, the acceptance in Bennett v Minister of Community Welfare that the relationship of guardian and ward created a fiduciary relationship and the acknowledgment in Paramasivan v Flynn that the relationship of guardian and ward may give rise to a fiduciary relationship are sufficient to persuade me that it would be premature to hold, at this stage, that the applicants have failed to make out a case of a fiduciary relationship on the pleadings. It may transpire, when all the evidence has been taken, that no such relationship has been proved: That is matter, however, that should await the trial of the action.” (My emphasis.)
130 Abadee J commenced his consideration of a fiduciary duty in Williams (No 2) at paragraph 695 by suggesting that the action for breach of fiduciary duty “is a novel one”.
131 He contrasted the different views of Kirby P and Powell JA in Williams (No 1) although, I would have thought, with respect, that the views of Kirby P, which were adopted by Priestley JA, established that for which Williams (No 1) stood as authority. His Honour thought that there was much force in the views of Powell JA, although he did not consider he was bound by them, but he said that in many ways they “perhaps” reflected his “ultimate independent views”. His Honour continued, paragraph 703:-132 His Honour pointed out in the subsequent paragraphs the need to find the particular obligation or obligations owed and, at the conclusion of paragraph 706, said:-
“It seems to me, that even assuming a fiduciary relationship is established, there is no fiduciary duty of the kind urged by the plaintiff, or that further or alternatively, that no action for breach of fiduciary duty is available in any event. Indeed, in light of my finding and reasons, no breach of such duty has in the event been established.”
“Such an approach thus involves a consideration of whether a fiduciary concept embraces a specific duty of the type urged in the instant case. In my view it does not.”
133 It is apparent, if I may say so with great respect, that whilst his Honour rejected the general view that there could be a fiduciary relationship giving rise to fiduciary duties, he also found, on the facts of that case, that there was no specific duty of the type urged on behalf of Ms Williams of which there had been a breach.
134 He also drew the distinction between various legislation to support his conclusion that no fiduciary duty arose in that case.
135 His Honour was also referred to the decision of the Court of Appeal in Brunninghausen v Glavanics (1999) 46 NSWLR 538 in which, on several occasions, Handley JA, who delivered the principal judgment of the Court, noted that the relationship of guardian and ward had always been one which gave rise to fiduciary duties. At paragraph 721, Abadee J said that it was not necessary to decide, in that case, whether the relationship of guardian and ward or parent and child was of a fiduciary nature, and he noted that in Hospital Products neither Gibbs CJ nor Mason J included those relationships within their formulations of fiduciary duties. However, his Honour may have overlooked that Dawson J did at p.141 in a passage to which Kirby P drew attention in Williams (No 1). In the light of the authorities to which I have referred, it is difficult, in my respectful opinion, to say that the relationship of child and guardian does not give rise to a fiduciary relationship or obligation. Of course, in every case it is necessary to examine the content of the duty and the alleged breach of it. In the end, paragraph 734, his Honour was of the view that Paramasivan correctly stated the law and, subsequently, he drew upon various other authorities in support of the proposition that there was no fiduciary relationship.
On the facts of that case his Honour was obviously of the view that even if there had been a fiduciary duty, there was no breach of it.
136 I do not consider that in the light of Williams (No 1) and Brunninghausen, supported by the other authorities to which I have referred, it can be said that there is not, relevantly for present purposes, an available action based on the existence of a fiduciary duty and breach of it.
137 Nextly Mr McCarthy submitted that there was no evidence available to demonstrate the necessary link between any breach of duty by the respondents and the appellant’s present condition. The submission was that any suggestion that isolated incidents in a fourteen year period of substitute care are relatively causative of the appellant’s personal problems is without evidentiary foundation. He submitted:-138 In my opinion each of the claims made by the appellant shows, prima facie, an available case of the type referred to in Williams (No 1) and McLean, which the appellant is entitled to have heard. The contentions to the contrary should be rejected, and the Master’s decision, in this regard, upheld.
“The complexity of causation and the lack of evidence of the necessary link between demonstrable breach of duty and causative effect reinforce that the relationship alleged by the appellant is non-justiciable."
In my opinion the evidence of Dr Gertler provides the necessary causal link.
Conclusions
139 For these reasons I consider, with respect, that the Master was in error in finding that there was an absence of evidence in the way in which she did. In my opinion the appeal against these findings should be allowed. I am further of the opinion that the Master was correct in finding that the appellant had pleaded justiciable causes of action, sufficient to make it just and reasonable for the proceedings to go forward, and that her analysis of the issue of prejudice does not indicate any failure to exercise her discretion properly: see also Sydney City Council v Zegarac (1998) 43 NSLWR 195. Finally, I am not satisfied by the submissions of Mr McCarthy that the principles of law for which he contends, namely the absence of any duty in the respondents at common law or under statute or by virtue of a fiduciary duty, irrespective of the findings of fact, is correct. It may be, eventually, that the principles applied by Abadee J in the particular circumstances of Williams (No 2) are held, as principles of law, to be correct. However, even if that be so, it does not seem to me that that will necessarily lead to the conclusion that in any given case those principles should be applied without regard to the particular facts of the case. In my view, however, that position has not been reached at the moment. The various authorities to which I have referred show that each area of law is in a somewhat fluid state, and I can see no justification for declining to hold that on those facts pleaded, which were accepted by the respondents as correct, and on the facts proved before the Master to the extent necessary for the application, the appellant does not have an arguable case on each cause of action for which he contends. The same facts are said to give rise, essentially, to each cause of action. As that for breach of fiduciary duty does not require an extension of time, it is difficult to see what prejudice could apply to the hearing of the other causes of action: Williams (No 1).
140 I would merely conclude by stressing that the evidentiary material to which I have referred has not been tested. The appellant’s case, after trial, may lead to the conclusion that he is not entitled to succeed. However, the situation has not been reached where it has been demonstrated that that case should be defeated in limine, in the sense that the limitation provisions should provide a complete defence to it.141 I order that:-
Orders
(a) The appeal be allowed.
(b) The orders of Master Harrison of 29 June 1999 be set aside.
(c) In lieu thereof it be ordered that pursuant to s.60G and s.58 of the Limitation Act 1969, the limitation period for the causes of action for negligence and breach of statutory duties set out in the Statement of Claim filed on 24 July 1997, being for damages for personal injury, be extended to 24 July 1997.
(d) The respondents pay the appellant’s costs of the proceedings before Master Harrison and of the appeal.
(e) The exhibits be returned.**********
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