JS v The State of Western Australia - [2019] WADC 136

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   JS -v- THE STATE OF WESTERN AUSTRALIA [2019] WADC 136
CORAM:   TROY DCJ
HEARD:   20 AUGUST 2019
DELIVERED          :   23 SEPTEMBER 2019
FILE NO/S:   CIV 4083 of 2016
BETWEEN:   JS
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
ISM
Proposed Third Party

Catchwords:

Civil procedure - Application by a defendant to set aside judgment and settlement - Whether s 91 of the Limitation Act can be utilised by a defendant rather than a plaintiff - Meaning of 'on' a previously barred cause of action - Whether plaintiff's action was dismissed on the ground that the action was statute barred

Legislation:

Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA)
Limitation Act 2005 (WA), s 6A, s 89, s 91, s 92

Result:

The defendant's application to set aside the judgment of 20 December 2017 and the settlement of 17 October 2017 is dismissed

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	Ms C J Thatcher SC
Proposed Third Party	:	Mr T J Palmer

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	State Solicitor of Western Australia
Proposed Third Party	:	Panetta McGrath Lawyers

Case(s) referred to in decision(s):

City of Kwinana v Lamont [2014] WASCA 112
Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405
Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2015] WASCA 186
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Gwilliam v The Queen [2019] NSWCCA 5
JAS v The Trustees of the Christian Brothers [2018] WADC 169
LFG v The State of Western Australia (2015) 48 WAR 178; [2015] WASCA 88
Sgarlata v The State of Western Australia (2015) 49 WAR 176; [2015] WASCA 215
Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531
TRG v The Board of Trustees of Brisbane Grammar School [2019] QSC 157
Van Heerden v Hawkins [2016] WASCA 42

TROY DCJ:

Introduction

The plaintiff commenced civil proceedings arising out of alleged historic child sexual abuse, with the State of Western Australia pleaded as the first defendant and ISM as the second defendant. ISM applied for summary judgment in his favour. No summary judgment was entered, but the plaintiff advised the State that she agreed to discontinue her action. She also advised of an intention to recommence once the anticipated legislation removing time limits in such matters was passed. On an unknown date on or before 17 October 2017 the plaintiff reached a confidential arrangement with ISM. By a consent order dated 4 September 2017 and accepted by the court on 20 December 2017, solicitors for the plaintiff, ISM and the State agreed to the plaintiff's action against ISM being reinstated and dismissed.
In March 2018 ISM was convicted of historic child sex offences against two victims and sentenced to a period of 5 years 2 months' immediate imprisonment.
The State now wish to set aside the dismissal of proceedings against ISM and to issue a third party notice directed to ISM. ISM opposes the application. Having reached a settlement with ISM, the plaintiff neither consents to nor does she oppose the State's application.

Statement of issues

Is the jurisdiction conferred by s 91 and s 92 of the Limitation Act 2005 (WA), as amended, confined to a plaintiff wishing to pursue a child sexual abuse cause of action against an alleged tortfeasor, as opposed to permitting one alleged joint tortfeasor to seek a contribution from another? Is the State's proposed action on the plaintiff's previously barred cause of action? Was the plaintiff's cause of action dismissed before commencement day on the ground that the action was statute barred?
Does s 92(3) of the Limitation Act, as amended, give jurisdiction to the court to set aside the 17 October 2017 settlement?
If the court has jurisdiction, should it exercise its discretion in favour of the State so as to set aside both the judgment and the settlement, facilitating the State in joining ISM as a third party?

The relevant statutory provisions

In respect of the application to set aside judgment the relevant provisions of the Limitation Act as amended by the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act2018 (WA) are as follows:
6A.Special provisions for child sexual abuse actions: no limitation period
(1)In this section -
child means a person under 18 years of age;
child sexual abuse, of a person, means an act or omission in relation to the person, when the person is a child, that is sexual abuse;
child sexual abuse action means an action on a child sexual abuse cause of action;
child sexual abuse cause of action means a cause of action that relates, directly or indirectly, to a personal injury of the person to whom the cause of action accrues, where the injury results from child sexual abuse of the person.
(2)Despite anything in this or any other Act, no limitation period applies in respect of a child sexual abuse action.
…
Division 1 - Provisions for Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018
89.Terms used
In this Division -
child sexual abuse has the meaning given in section 6A(1);
child sexual abuse action has the meaning given in section 6A(1);
child sexual abuse cause of action has the meaning given in section 6A(1);
commencement day means the day on which the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 section 12 comes into operation;
previously barred cause of action means a child sexual abuse cause of action that was statute barred immediately before commencement day;
previously settled cause of action means a child sexual abuse cause of action that was settled after it was statute barred but before commencement day;
statute barred, in relation to a child sexual abuse cause of action, means that action on the cause of action cannot be maintained -
(a)under one of the provisions referred to in section 6A(3); or
(b)because a limitation period applicable to the action under this or any other Act has expired.
90.Application of section 6A
Section 6A applies in relation to a child sexual abuse action regardless of when the act or omission constituting child sexual abuse occurred.
91.Previously barred causes of action
(1)An action on a previously barred cause of action may be commenced even though one or more of the following apply -
(a)the action was statute barred before commencement day;
(b)an action on the cause of action had commenced but was discontinued or not finalised before commencement day;
(c)a judgment was given before commencement day in relation to the cause of action on the ground that the action was statute barred;
(d)an action on the cause of action was dismissed before commencement day on the ground that the action was statute barred.
(2)Application may be made to a court with jurisdiction to deal with the action to set aside a judgment referred to in subsection (1)(c) or (d) (the previous judgment). An application may be made prior to the commencement of the action.
(3)The court may, if satisfied that it is just and reasonable to do so, set aside the previous judgment to the extent to which it relates to the action.

The structure of the amendments to the Limitation Act

As counsel for ISM notes, the structure of the relevant sections is such that s 91(1) is declarative in nature. An action on a previously barred cause of action may be commenced even though one of the subparagraphs in the subsection applies. Here, that an action on the cause of action was dismissed before commencement day on the ground that the action was statute barred: s 91(1)(d).
If the action was statute barred before commencement day: s 91(1)(a), or an action on the cause of action had commenced but was discontinued or not finalised before commencement day: s 91(1)(b), a party can commence an action without the need to bring any application to a court. Conversely, where a judgment was given or an action on the cause of action was dismissed on the ground that the action was statute barred: s 91(1)(c) and s 91(1)(d), it is necessary for the party to make an application to a court under s 91(2). Section 91(3) provides for the court's discretion to allow an application to set aside the previous judgment.

Who can make an application under s 91?

There are two possible constructions of s 91. The State contend that the way in which s 91(1) is structured, in the passive tense and without a defined subject, means that the possibility of a party other than an alleged victim of child sex abuse commencing a previously barred action is not excluded. The provision, they say, is in somewhat neutral terms. Section 91(1) does not read:
a (proposed) plaintiff or a (alleged) victim may commence an action on a previously barred cause of action even though …
Rather, it reads:
An action on a previously barred cause of action may be commenced even though …
The section also uses the indefinite article 'a' as opposed to the definite article 'the'. So, a (previously barred) action rather than the action.
ISM submits that the jurisdiction conferred by s 91 and s 92, is conferred to benefit persons, such as the plaintiff, who wish to pursue a child sexual abuse cause of action against an alleged tortfeasor, not to permit one alleged joint tortfeasor to seek a contribution from another. This application is not, of course, made by the plaintiff.
It is quite common for sentences to be structured in the passive tense and to lack a subject, particularly where the subject cannot be identified or is relatively unimportant compared to the outcome described. I have considered whether s 91(1) is phrased as it is because it is implicit that the action would be brought by a plaintiff.

Principles of statutory construction

As the High Court has held:[1]
[T]he task of statutory construction must begin with a consideration of the statutory text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
[1] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] as cited in Van Heerden v Hawkins [2016] WASCA 42 [93].
The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention.[2] The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.[3] The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose.[4]
[2] LFG v The State of Western Australia (2015) 48 WAR 178; [2015] WASCA 88 [307] (Buss JA).
[3] Van Heerden v Hawkins (Buss JA) [95].
[4] LFG [308].
The purpose of a statute may, in a particular case, be defined from its long title. Here, the Civil Liability Legislation Amendment (Child Sexual Abuse Actions)Act. The words in parenthesis are, in my view, significant. The long title may properly be referred to in case of ambiguity for guidance on the intended scope of the Act. It may not be used to contradict any clear and unambiguous language in the statute. However, if there is any uncertainty it may be resorted to for the purpose of resolving the uncertainty.[5]
[5] Van Heerden [97].
Section 18 of the Interpretation Act 1984 (WA) provides that, in the interpretation of a provision of a written law (including all Acts for the time being in force), a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. The requirement in s 18 that one construction be preferred to another can apply only where two constructions are otherwise open. If the ordinary meaning conveyed by the text of a provision is to be modified by reference to the purposes or objects underlying the written law, the modification must be able to be identified precisely as that which is necessary to give effect to those purposes or objects and it must be consistent with the text otherwise adopted by the draftsperson. Section 18 requires a court to construe a written law, and not rewrite it by reference to its purposes or objects.[6]
[6] Van Heerden [100].
Once the purpose of the legislation is established, a construction that would promote that purpose shall be preferred to a construction that would not do so.[7]
[7] Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2015] WASCA 186 [64] (Mitchell J (with whom Buss & Newnes JJA agreed)).
Secondary material seeking to explain the words of a statute cannot displace the clear meaning of the text of a provision, not least because such material may confuse what was 'intended … with the effect of the language which in fact has been employed'. The statutory text, and not non-statutory language seeking to explain the statutory text, is paramount.[8]
[8] Van Heerden [102].
The function of a definition in a statute, in this case as provided in s 6A and s 89, is not, except in rare cases, to enact substantive law. Rather, its function is to provide aid in construing the substantive enactment that contains the defined term. The meaning of the definition depends on the context, and the purpose or object, of the substantive enactment.[9] The function of a statutory definition is to provide an aid in construing a statute. The proper course is to read the words of the definition into the relevant provision and then construe the latter.[10]
[9] Van Heerden [103].
[10] Sgarlata v The State of Western Australia (2015) 49 WAR 176; [2015] WASCA 215 [51] (McLure P).
The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision.[11]
[11] Van Heerden at [173] Murphy JA citing City of Kwinana v Lamont [2014] WASCA 112 [47].
In Van Heerden,[12] Murphy JA cited with approval the dissenting (in the result) judgment of Gageler and Keane JJ in Taylor v The Owners - Strata Plan No 11564[13] [65]:
Statutory construction involves attribution of legal meaning to statutory text, read in context. 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always'. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
[12] Van Heerden [180].
[13] Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531.
The question of whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'.[14]
[14] Van Heerden at [179] citing Taylor v The Owners - Strata Plan No 11564 [38].
In this case I accept that the meaning of s 91(1), on its face, suggests that there are no restrictions as to who may commence such an action. In my opinion, however, it is not so clear and unambiguous that it is impermissible to consider the purpose of the amending legislation, in considering whether words should be implicitly read into the section so as to limit such an action to a proposed plaintiff.

The purpose of the legislation that amended the Limitation Act

The purpose of the amending legislation is very plain. Its title is Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act2018. 'Child sexual abuse action' means:[15]
a cause of action that relates, directly or indirectly, to a personal injury of the person to whom the cause of action accrues, where the injury results from child sexual abuse of the person.
[15] Section 6A(1) of the Act.
As noted in JAS v The Trustees of the Christian Brothers[16] the explanatory memorandum to the amending Act states as follows:
Part 3 of the Bill sets out the amendments to the Limitation Act 2005 (WA) to remove limitation periods for all child sexual abuse actions, both retrospectively and prospectively. This implements recommendations 85 - 86 and 88 of the Royal Commission Report. Without removal of these timeframes, the Royal Commission found that survivors, who typically do not report their abuse for long periods after the Limitation period has expired, would be unable to have their claims of child sexual abuse determined by a court on the merits.
Part 3 also aims to remedy some of the past injustice caused by the operation of strict time limitation periods to child sexual abuse actions by providing for the setting aside of previously barred and previously settled causes of action under certain conditions.
[16] JAS v The Trustees of the Christian Brothers [2018] WADC 169 [25] (Sleight CJDC).
The explanatory memorandum also reveals that it was the first stage of legislative reform in this state responding to the recommendations of the Royal Commission into institutional responses to child sex abuse.
Recommendation 85 of the Royal Commission report states that state governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person, where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child.
The explanatory memorandum notes under s 6A that the definition of child sexual abuse cause of action is specifically limited to a cause of action that relates to a personal injury resulting from child sexual abuse to the person to whom the cause of action accrues. It does not include a cause of action relating to personal injury of a third party (not being the victim of child sexual abuse) even where that injury resulted from the child sexual abuse, for example, a cause of action based on nervous shock.
During the second reading of the Bill on 22 November 2017 the Attorney General, in moving the Bill, referred to the position that previously applied where when sexual abuse was suffered, a person had six years to commence a claim for personal injuries damages. It was obvious that most victims of abuse in the state were unable to sue for damages when they finally disclosed their abuse. The Bill struck a balance between the principle that once a court is finally determined in case it ought not to be re-litigated and the policy to allow victims to sue when they were impeded in doing so by limitation periods (my emphasis).[17]
[17] 2017 P5913.

In contributing to the second reading debate on 28 November 2017 the member for Armadale, Dr A D Buti observed that if the Bill was passed it would become a reparation measure for victims. On the same occasion the then leader of the opposition, Dr M D Nahan expressed the hope that the legislation would be, 'watertight for victims of child abusers so that they could pursue their victimisers'. The opposition extended in principle support to removing the statute of limitations to enable victims of child sex abuse to take action against their perpetrators and when relevant and possible against the institutions that failed them. Despite the use and utility of the statute of limitations elsewhere, it simply should not apply to victims of child sexual abuse. The then deputy leader of the opposition, Mrs L M Harvey also noted that existing limitation periods are a significant and sometimes insurmountable barrier to victims of child sexual abuse seeking a civil remedy or pursuing civil litigation.[18]
[18] 2017 P6160b - 6179a.
When the debate resumed on 20 February 2018, the member for Hillarys Mr P A Katsambanis observed that the Bill dealt with the very complex and difficult area of the redress limitation periods that apply for victims of child sexual abuse actions. The member observed that the assembly was dealing with a Bill that would remove the liability on civil actions so that victims of child sexual abuse could bring an action for redress against the perpetrator or against an institution that had a relationship with a perpetrator.[19]
[19] 2019 P325b - 344a.
It seems to me that every parliamentarian who commented during the debate on the Bill, premised their contributions on the basis that the sole purpose of the amendments to the Liability Act was to remove an obstacle for victims of child sexual abuse actions, and only for victims of child sexual abuse actions.
In JAS at [27.5] Sleight CJDC referred to the broad intention of the amending Act to remove legal barriers to claimants commencing an action and having their claims decided on their merits.

Does s 91 permit the State's application?

The State's application to set aside the judgment of 20 December 2017 is based solely on the suggested operation of s 91(d).
Whilst the State properly drew my attention to the cases of JAS and TRG v The Board of Trustees of Brisbane Grammar School,[20] as senior counsel for the State readily conceded each is distinguishable and provide limited assistance in resolving the issues in the present matter.
[20] TRG v The Board of Trustees of Brisbane Grammar School [2019] QSC 157.
I have referred to the obvious intent of the parliament in passing the amending Act. Section 6A, as amended is entitled, 'Special provisions for child sexual abuse actions: no limitation period.' Child sexual abuse actions means a cause of action that relates, directly or indirectly, to a personal injury of the person to whom the cause of action accrues, where the injury results from child sexual abuse of the person. Here, the person to whom the cause of action accrues is the plaintiff and not the State.
In my view the reference to 'the action' under s 91(1)(a) and 'the cause of action' under s 91(1)(c) and s 91(1)(d) means the previously barred cause of action. In the present case the plaintiff's action against the State and ISM.
I construe s 91(1) read with s 91(3) as permitting an alleged victim, but no other party, to bring an action on a previously barred cause of action, where an action was previously dismissed on the ground that the action was statute barred. I do not construe it as permitting a defendant to set aside a judgment concerning a plaintiff and a former defendant, so as to add that defendant as a third party.
In my view, such a construction does not fill gaps disclosed in legislation nor does it amount to an insertion which is too big, or too much at variance with the language in fact used by the legislature. This construction in fact promotes the purpose or object underlying the amending Act. A construction permitting one alleged joint tortfeasor to seek a contribution from another would not promote that purpose or object.
The State has not satisfied me that the court has the jurisdiction under s 91 to grant the summons so as to set aside the 20 December 2017 judgment in order to join ISM as a third party.
In case I am wrong about that, I move to consider the other issues that are raised by this application. The jurisdiction conferred by s 91 is conditional upon, among other things, the applicant demonstrating that it is proposed to commence an application on a previously barred cause of action. Further, to the extent that s 91(1)(d) is relied upon, that an action on the cause of action was dismissed before the commencement day on the ground that the action was statute barred.

Is the State's proposed action 'on' that previously barred cause of action?

If one merges all the relevant concepts, as defined in various subsections, into one, somewhat unwieldy, sentence the issue is as follows. Is the State's proposed action (to set aside the 20 December 2017 judgment) an action on a cause of action that relates, directly or indirectly, to a personal injury of the person to whom the cause of action accrues, where the injury results from child sexual abuse of the person and that such action was statute barred immediately before commencement day?
This question turns on the meaning of the simple word 'on' in this context. The ordinary English meaning of 'on' is multi-faceted, but in the present context it is a preposition denoting 'in connection', 'association', or 'cooperation with'; 'as a part or element of'.
The State's proposed cause of action against ISM is different to the plaintiff's action, in that it is a statutory claim for contribution rather than a claim for personal injury. There are different limitation periods between the two actions. Counsel for ISM submits that the State could have brought a separate statutory cause of action against ISM, even though the plaintiff did not pursue ISM, were it not for the fact that the plaintiff's action has been dismissed. The State's ability to pursue an action to add ISM as a third party was not dependent on the plaintiff's cause of action.
The State argues that its action is on the previously barred cause of action, because the two are connected. The State submit that the plaintiff's allegations against ISM in the original version of the statement of claim form the basis of the action that the State, as a defendant, now seeks to bring against ISM, the proposed third party. They are dependent to the extent that the State will not succeed in an action against ISM if the allegations made by the plaintiff against ISM cannot be made out.
Whilst the legislation under consideration in TRG v The Board of Trustees of Brisbane Grammar School includes the wording, 'an action on a previously barred right of action' it was not necessary for Davis J in that case to construe the meaning of those words. Nor did Sleight CJDC have to consider this concept in JAS.
I construe an 'action on a previously barred cause of action' as meaning an action that is derived from or follows on from that previously barred cause of action. I am not satisfied that the ordinary meaning of 'on' permits a conclusion that the State's action, which is different in its nature from the plaintiff's former action against ISM, is 'on' that action.

Was the plaintiff's cause of action dismissed on the ground that the action was statute barred?

A previously barred cause of action is, as defined by s 89, a child sexual abuse cause of action (as defined in s 6A(1)) that was statute barred immediately before commencement day. Here, the previously barred cause of action is the plaintiff's action for damages against the State and ISM.
The State's cause of action was never itself statute barred, within the definition of that term given in s 89 and s 6A(3) of the Limitation Act. The jurisdiction conferred by s 91(3) only extends as far as is necessary to facilitate the effect of s 91(1), including s 91(d). So, the court only has jurisdiction if the action was dismissed on the ground that it was statute barred.
Section 91(1)(d) refers to an action on the cause of action that was dismissed before commencement day on the ground that the action was statute barred. Those words have the effect that firstly an action on a previously barred cause of action have been dismissed. Secondly that a ground of the dismissal must have been that the action was statute barred. I am satisfied that the wording of this subsection requires demonstration of a causal connection between the dismissal and the fact that the claim was statute barred. More is required than simply that the action was dismissed before commencement day. Otherwise, the words 'on the ground that the action was statute barred' would be given no effect. It is a longstanding principle of statutory interpretation that all words in legislation should (where possible) be given meaning and effect: Commonwealth v Baume.[21]
[21] Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 (414).
The details of negotiations and the terms of the confidential agreement between the plaintiff and ISM, leading up to the confidential settlement are not before me. The plaintiff gave consent to the confidential agreement being before the court. ISM did not consent to the confidential agreement document being placed before the court in isolation, because he contends that the negotiations leading up to that agreement are also relevant. The State did not attempt to exercise any compulsive power, to issue a subpoena or seek third party discovery to place details of the terms of the confidential agreement before me.
The State contend that on the available material, in particular the time gap between the settlement and the subsequent lifting of the limitation period, I should be inferentially satisfied that the limitation period did have an impact in relation to the judgment that the State wish to have set aside.
On 10 May 2019, Ms Abigail Davies, an assistant State solicitor swore a detailed affidavit in support of the State's application. Annexure 'AD 7' is a letter from the solicitors acting for ISM dated 17 October 2017. It informs the State solicitor that ISM has entered into a confidential arrangement with the plaintiff in full and final settlement of the plaintiff's claim. The letter continues:
as part of that settlement the plaintiff will agree to orders that the plaintiff's claim against [ISM] will be reinstated and dismissed.
(my emphasis)
Although ISM applied for summary judgment at one point, that application did not proceed. The 17 October 2017 letter links the plaintiff's agreement to her claim being reinstated and dismissed to the confidential settlement. There is no evidence that the plaintiff's action was dismissed on the ground that it was statute barred.
It is clearly open to me to conclude that in reaching a confidential settlement the then limitation period was a factor. However that must be seen in the context that the plaintiff was aware that the legal landscape was about to imminently change so that the limitation hurdle in respect of her action against ISM was going to be removed. So much is clear from par 28 of the 23 May 2017 submissions filed on behalf of the plaintiff and from the email sent by her solicitor Ms Breda to the State Solicitors Office on 24 May 2017.[22] More fundamentally it was not the case that the plaintiff's action was dismissed on the basis or on the grounds that it was statute barred. It was the confidential settlement that resulted in the dismissal by consent.
[22] Annexure 'AD5' and Annexure 'AD6' to Ms Davies' 10 May affidavit.
It would be speculative, rather than the legitimate drawing of inferences from primary facts[23] to conclude that the plaintiff's claim was dismissed because it was statute barred. All the evidence is to the contrary.
[23] See discussion in Gwilliam v The Queen [2019] NSWCCA 5, Wilson J at [99] ‑ [104].
Accordingly even if, contrary to the views I have expressed, the State had standing under s 91 to bring an action and that such action was on the plaintiff's cause of action, the State still fail to come within s 91(1)(d). This is not a case where the plaintiff's action was dismissed before commencement day on the ground that the action was statute barred.

Section 92 of the Limitation Act

Section 92, as amended, provides as follows:
92.Previously settled causes of action
(1)This section applies in relation to a proposed action on a previously settled cause of action and to the agreement effecting the settlement (the settlement agreement).
(2)Application may be made to a court that would have jurisdiction to deal with the action, but for the settlement agreement, for leave to commence the action.
(3)The court may, if satisfied that it is just and reasonable to do so -
(a)grant leave to commence the action, subject to conditions; and
(b)to the extent necessary for that, set aside the settlement agreement and any judgment giving effect to the settlement.
(4)If an action on the previously settled cause of action is commenced, the settlement agreement and each agreement relating to the settlement, other than a contract of insurance, is, despite any written or other law, void to the extent to which it relates to the child sexual abuse the subject of the cause of action.
(5)A party to an agreement that is wholly or partly void under subsection (4) cannot seek to recover an amount paid by or for the party under the agreement on the basis that the agreement is void to that extent.
(6)The court dealing with the action may, if satisfied that it is just and reasonable to do so, take into account any amount paid under an agreement that is wholly or partly void under this section, to the extent to which the amount relates to the child sexual abuse the subject of the cause of action.
(7)For the purposes of subsection (6), amounts paid under an agreement are taken to relate to the child sexual abuse the subject of the cause of action to the extent of 50% if the agreement -
(a)does not relate solely to that child sexual abuse; and
(b)does not expressly deal with the extent to which the agreement and amounts paid under it relate to that child sexual abuse.
The settlement agreement is only to be set aside to the extent necessary. Given my findings that the court does not have jurisdiction to deal with the State's proposed action, by operation of s 92(2) the State's application to set aside the settlement agreement falls away.

Discretion

As I have found that there is no jurisdiction to grant the State's application, no question of exercising my discretion under s 91(3) or s 92(3) arises.

Order

The State's application to set aside the judgment of 20 December 2017 and the confidential settlement of about 17 October 2017 is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
Associate to Judge Troy
23 SEPTEMBER 2019