JX v GX & Others - [2006] NSWCA 167

New South Wales

Court of Appeal

CITATION: JX v GX & Others [2006] NSWCA 167

HEARING DATE(S): 8 February 2006

JUDGMENT DATE:
29 June 2006

JUDGMENT OF: Handley JA at 1; Santow JA at 32; McColl JA at 38

DECISION: 1. Leave to appeal granted.; 2. Filing of a notice of appeal dispensed with.; 3. Appeal dismissed with costs.

CATCHWORDS: LIMITATION – extension of time – sexual abuse – psychiatric injury – awareness of nature and extent - ND

LEGISLATION CITED: Limitation Act 1969

CASES CITED: Commonwealth of Australia v Dinnison (1995) 56 FCR 389
Commonwealth of Australia v Nelson [2001] NSWCA 443
Commonwealth of Australia v Smith [2005] NSWCA 478
Harris v Commercial Minerals Ltd & Ors (1996) 186 CLR 1
McGloin v Magann [2005] NSWCA 358

PARTIES: "JX" (Claimant)
"GX" (First Opponent)
"GC" (Second Opponent)
"MX" (Third Opponent)
"JX" (Fourth Opponent)

FILE NUMBER(S): CA 40198 of 2005

COUNSEL: P Hennessy SC/P Gow (Claimant)
M T McCulloch SC (Opponents)

SOLICITORS: Adamson (Claimant)
Coyne & Whittemore (Opponents)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20146 of 2004

LOWER COURT JUDICIAL OFFICER: Master Harrison

LOWER COURT DATE OF DECISION: 28 February 2005

LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWSC 114

CA 40198 of 2005

HANDLEY JA
SANTOW JA
McCOLL JA
29 JUNE 2006

“JX” v “GX” & OTHERS

CATCHWORDS

LIMITATION – extension of time – sexual abuse – psychiatric injury – awareness of nature and extent

FACTS

The claimant sought leave to appeal from the decision of a Master, who had declined to extend the limitation periods in respect of psychiatric injury resulting from sexual abuse over a six year period during his childhood. The limitation periods expired in 1985, and the application for extension was not filed until 2004. The essential issue on the application was whether the claimant became aware of significant additional information about the nature or the extent of his psychiatric injury within the three year period in s 60I(1)(b) before the application was filed in 2004.

In 1997 and 1998 the claimant had, to his knowledge, been diagnosed as suffering from a severe anxiety condition and chronic depression as a result of his sexual abuse. Further reports in 2003 and 2004 stated that his condition “remains largely unchanged”. However the 2004 report recorded, for the first time, a diagnosis of post traumatic stress disorder (ptsd). HELD: (1) The claimant’s anxiety symptoms, although described in greater detail in the 2004 report, did not differ in substance from those reported in earlier reports; (2) The diagnosis of ptsd in 2004 did not reflect a deterioration in the claimant’s psychiatric condition and did not establish that he was previously unaware of the nature or extent of his injury; (3) The claimant had failed to satisfy the requirements of s 60I(1)(a) within the three year period stipulated by s 60I(1)(b).

ORDERS

1. Leave to appeal granted.

2. Filing of a notice of appeal dispensed with.

3. Appeal dismissed with costs.

CA 40198…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JX v GX & Others

Details

AGLC: JX v GX [2006] NSWCA 167
Case: [2006] NSWCA 167
Decision Date: 29 June 2006

CaseChat Overview and Summary

The case of *JX v GX & Others* concerned an application for an extension of time to commence proceedings for damages arising from sexual abuse. The applicant, JX, sought to bring a claim against the respondents, GX & Others, alleging psychiatric injury resulting from historical sexual abuse. The primary legal question before the Court of Appeal of New South Wales was whether JX had satisfied the requirements for an extension of time under the relevant limitation legislation, specifically concerning the timing of awareness of the nature and extent of the injury.

The central legal issues before the court were: (1) whether JX had become aware that the *cause* of her psychiatric injury was the sexual abuse, and (2) whether she had become aware of the *nature and extent* of that injury, within the relevant limitation period. The court had to consider the interplay between the discovery of the injury and the discovery of its cause, and how these elements informed the commencement of the limitation period.

The court's reasoning focused on the applicant's knowledge and understanding of her condition. It was held that the limitation period begins to run when the plaintiff has knowledge of the injury and its cause, and that the "nature and extent" of the injury refers to the plaintiff's understanding of the seriousness and consequences of that injury. The court found that JX had not established that she lacked knowledge of the cause of her psychiatric injury or its nature and extent until a date that would permit an extension of time. Consequently, the court determined that the statutory time bar applied.

Leave to appeal was granted, and the filing of a notice of appeal was dispensed with. However, the appeal was ultimately dismissed with costs.

Orders

Orders of the court

1. Leave to appeal granted.; 2. Filing of a notice of appeal dispensed with.; 3. Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	JX v GX & Others [2006] NSWCA 167
HEARING DATE(S):	8 February 2006
JUDGMENT DATE:	29 June 2006
JUDGMENT OF:	Handley JA at 1; Santow JA at 32; McColl JA at 38
DECISION:	1. Leave to appeal granted.; 2. Filing of a notice of appeal dispensed with.; 3. Appeal dismissed with costs.
CATCHWORDS:	LIMITATION – extension of time – sexual abuse – psychiatric injury – awareness of nature and extent - ND
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Commonwealth of Australia v Nelson [2001] NSWCA 443 Commonwealth of Australia v Smith [2005] NSWCA 478 Harris v Commercial Minerals Ltd & Ors (1996) 186 CLR 1 McGloin v Magann [2005] NSWCA 358
PARTIES:	"JX" (Claimant) "GX" (First Opponent) "GC" (Second Opponent) "MX" (Third Opponent) "JX" (Fourth Opponent)
FILE NUMBER(S):	CA 40198 of 2005
COUNSEL:	P Hennessy SC/P Gow (Claimant) M T McCulloch SC (Opponents)
SOLICITORS:	Adamson (Claimant) Coyne & Whittemore (Opponents)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20146 of 2004
LOWER COURT JUDICIAL OFFICER:	Master Harrison
LOWER COURT DATE OF DECISION:	28 February 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	[2005] NSWSC 114