Locklier v State of New South Wales

[2009] NSWSC 746

CITATION:	Locklier v State of New South Wales [2009] NSWSC 746
HEARING DATE(S):	23 and 24 July 2009
JUDGMENT DATE :	3 August 2009
JUDGMENT OF:	Davies J
DECISION:	1. The Plaintiff’s Notice of Motion is dismissed. 2. The Plaintiff is to pay the Defendant’s costs of the Notice of Motion.
CATCHWORDS:	LIMITATION OF ACTIONS - postponement of the bar - extension of period - claim for damages for physical and psychiatric injuries sustained at State run homes 1970 to 1974 - Plaintiff claims repressed memories did not return until recently - when Plaintiff became aware of matters for purposes of s 60I Limitation Act 1969 - whether just and reasonable to extend the limitation period pursuant to s 60G - many witnesses dead or unable to give evidence - multiple causes for Plaintiff's psychiatric injuries - periods of unexplained delays since recovery of memories.
LEGISLATION CITED:	Child Welfare Act 1939 Limitation Act 1969
CASES CITED:	Allen v Drayton Coal Pty Ltd [1995] NSWCA 14 BHP Steel (AIS) Pty Ltd v Lakovski [2000] NSWCA 334 Ciantar v State of New South Wales [2008] NSWSC 191 CRA Limited v Martignago (1996) 39 NSWLR 13 Dedousis v The Water Board (1994) 181 CLR 171 Dow Corning Australia Pty Ltd v Paton (unreported, Court of Appeal, 24 April 1998) Drayton Coal Pty Ltd v Drain (unreported, Court of Appeal, 22 August 1985) F J Walker Ltd v Webber (unreported, NSW Court of Appeal, 16 November 1989 Harris v Commercial Minerals Ltd (1996) 186 CLR 1 Holt v Wynter (2000) 49 NSWLR 128 Saffioti v The Estate of the Late Dr Bailey (unreported, Supreme Court of NSW, 28 November 1995)
PARTIES:	Toni Leigh Locklier (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	SC 07/20407
COUNSEL:	D W Elliot (Plaintiff) P J Saidi (Defendant)
SOLICITORS:	Gerard Malouf & Partners (Plaintiff) Crown Solicitor's Office (Defendant)

- 43 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

MONDAY 3 AUGUST 2009

07/20407 TONI LEIGH LOCKLIER v STATE OF NEW SOUTH WALES

JUDGMENT

1 The Plaintiff seeks an extension of time under s 60G Limitation Act 1969 to bring proceedings for personal injury against the State of New South Wales in relation to her treatment whilst at various state run homes from 1970 to 1972. The Plaintiff commenced her proceedings by Statement of Claim filed 14 November 2007. The Notice of Motion seeking the extension was filed on 25 February 2008.

The Plaintiff’s background

2 The Plaintiff was born on 6 December 1956 and was named Susan Lindy Roberts. Her parents were Raymond and Rae. They divorced shortly after her birth and in 1958 her mother married John Angus Cameron. The Plaintiff had an elder sister Kerrie born 21 February 1953 and an older brother Glenn born 3 September 1954.

3 Her father Ray had access to his three children and the Plaintiff saw him on fairly regular occasions. She claims that he started sexually interfering with her when she was two years old and by the time she was five years old he was having full sexual intercourse with her. This continued until the Plaintiff was twelve years old at which time her father died of lung cancer in 1969. The Plaintiff did not tell anybody about her father’s sexual activity with her until she was 33 years of age.

4 The Plaintiff, however, demonstrated a number of behavioural problems which led to her mother taking her to a child guidance centre in about 1967.

5 When the Plaintiff was about twelve years old she changed her name to Toni Leigh Cameron and this appears to have been related to her father’s sexual interference with her and because (as she said) she hated the name Susan mainly because of the type of girl she (Susan) was.

6 During 1970 there were a number of truancy problems involving the Plaintiff and, in August 1970, the Plaintiff left home without permission resulting in her appearing before the Metropolitan Children’s Court on a charge of being uncontrollable on 1 September 1970. She was lodged in the Pallister Girl’s Home Greenwich in September 1970 but a short time later she and another girl absconded from that home. During October 1970 there were three appearances before the Children’s Court on a complaint of her being uncontrollable and on 10 November 1970 she was sent to Ormond School in Thornleigh. She remained at Ormond until 11 November 1971 when she was discharged into the care of her mother.

The Plaintiff’s time in the homes

7 She has described her life and conditions at Ormond, including the punishments that were there meted out. These included being caned, being put in isolation and being taken “off privileges” which involved not being permitted to talk to anyone, no television, no visitors, and no taking part in any recreational activity.

8 The Plaintiff said that she suffered from all of these punishments at various times at Ormond and admits that she was a cheeky girl who would answer the officers back.

9 After she was discharged into the care of her mother, at the age of 14, she was granted an exemption from attending school from 16 September 1971. She was then briefly employed at Grace Brothers Hairdressing at Bondi Junction but within three weeks of obtaining that job she was arrested and charged with being neglected and exposed to moral danger. On 16 November 1971 she appeared before the Children’s Court in Sydney and the complaint of being exposed to moral danger was found to be established. She was committed to an institution which, after a brief time in Minda, was the Training School for Girls at Parramatta.

10 The Plaintiff was very resentful at being sent to Parramatta because she felt she had done nothing wrong and should not have been arrested in the first place. That caused her anger and frustration to increase whilst she was at Parramatta.

11 She said that she found that Parramatta operated under a very rigid disciplinary regime which was harsh, inflexible and marked by depersonalisation, denial of privacy and invasion of basic rights.

12 The Plaintiff has described in some considerable detail her life and routine at Parramatta. In particular, she said that Parramatta had official and unofficial punishments which she listed as isolation, segregation, physical assaults (bashings), psychological abuse, being made unprivileged, standing out and doing meaningless work. The Plaintiff alleges she was bashed and sexually assaulted by three officers at Parramatta, being Superintendents Guildford, Monahan and Valentine.

13 She describes one incident in detail which she said happened on 2 December 1971. She had been placed in isolation because it was alleged she had been involved in a disturbance in the dormitory the previous day. She and the other girls involved were sent to scrub the loft. After some hours the officer supervising the girls changed and a more lenient officer took her place. They convinced that officer to give them a break since they were in some discomfort from the scrubbing. They recovered after a short time and were chatting and laughing when Superintendent Monahan came up the stairs to the loft and caught them on a break. Superintendent Valentine was then summonsed and he and Superintendent Monahan waited for the girls at the bottom of the stairs and called them down one by one. When each girl reached the bottom Superintendents Monahan and Valentine bashed them, throwing them against the walls and the washing machines, punching them with closed fists and kicking them. Some of the girls, including the Plaintiff, fought back. The Plaintiff says that when it was over she was bruised all over her body, she had two black eyes, a swollen lip, a cut ear and lumps all over her head. The account of this incident is supported by evidence in affidavit form from Christina Green who was also lodged at both Parramatta and, subsequently at Hay, with the Plaintiff.

14 The Plaintiff relates another incident which she says occurred on 18 February 1972 at Parramatta. She says that in the evening Superintendent Valentine came into the room with a glass of pink medicine which she now knows to be Largactil. She refused to drink it but Superintendent Valentine grabbed her, pinned her against the wall with his body, forced her mouth open and poured the Largactil down her throat. When the Plaintiff tried to spit it out she says that Superintendent Valentine gnashed his mouth on hers as if he was kissing her hard on the mouth which made her gag and swallow the Largactil. He then slapped her hard against the face and told her that he would not miss her and that she deserved Hay. The Plaintiff says that this was the first that she had heard about being transferred to Hay. She subsequently became sleepy and could not function independently. Eventually she fell asleep and woke up at Naranderra Railway Station. The following day she arrived at the Institution for Girls in Hay.

15 The Plaintiff remained in Hay until 12 July 1972 (when she was then aged 15). She described Hay in both her affidavit and oral evidence as being the worst of the places she was held. In her affidavit she described Hay as operating under a very rigid dehumanising disciplinary regime. She said the daily routine was harsh, inflexible, marked by depersonalisation, denial of privacy, invasion of basic rights and punishment for the smallest perceived transgression, far worse than Parramatta. She said there was one officer to every two girls and they were accompanied by an officer at all times. They were only allowed to speak to each other for about 15 minutes a day and were only supposed to talk about nature. They had to keep their eyes downcast at all times and were not permitted to look at an officer or each other. They had to remain six feet apart from each other at all times. They had to ask permission to do virtually anything even, for example, permission to cough. If a person coughed without having permission to do so, the person was bashed.

16 There was no form of temperature control in the cells where they were held and the Plaintiff said that Hay had a reputation for extreme weather. They were obliged to sleep with their face towards the door of the cell and cell inspections took place during the night with the girls being woken by the officers.

17 Even in the showers and toilets the girls were often supervised by male officers. The Plaintiff describes one incident where a male officer sexually assaulted her in the showers including urinating over her buttocks.

18 But what the Plaintiff claimed was the worst aspect of any treatment she received in any of the homes and what she has described as the crux of her breakdown – the thing that caused her the most damage - was the routine which involved sanitary pads at Hay. The Plaintiff (as with the other girls) was marched individually into the toilet with a male officer. She was then told to remove her sanitary pad and show it to the officer to let him inspect it to see if it was soiled. If he determined that it was soiled, the girl had to roll it in her hands and put it into the incinerator and the officer would then give her a new sanitary pad.

19 The first time this happened to the Plaintiff she could not bring herself to show her soiled sanitary pad to the officer. She said that he laughed at her and told her to wear it dirty because she would not get a new one until he had seen the colour of her blood. He kept laughing and told her that he loved the smell. The Plaintiff vomited into the toilet as a result of this which caused the officer to laugh some more. The Plaintiff says that she never got used to this regime and it caused her to hate her menstrual cycle. She said that her period of menstruation normally lasted for five to six days so that she was obliged to endure this degrading routine for five to six days of every month that she was in Hay.

20 She describes bashings at Hay including by Superintendent Maxwell who was in charge and by his wife who did not apparently officially work at the Home.

21 The Plaintiff says 12 July 1972 she was transferred back to Parramatta where she remained until she was discharged into the care of her mother on 24 October 1972. Her complaints about her treatment at Parramatta during that period appear to relate only to the fact that she was made unprivileged on a number of occasions, and on one occasion she was given 24 hours in isolation.

22 Shortly after being discharged from Parramatta she met a person called Shane Woodage with whom she commenced a relationship. She fell pregnant to him in mid December 1972 but the relationship finished shortly thereafter.

23 In January 1973 she was questioned by the police in Kings Cross, and she told them that she was a working girl, giving a false name and date of birth. She was arrested and charged with loitering for the purpose of prostitution, kept overnight in the cells and appeared in Central Local Court the next day and was fined $100.

24 In April 1973 she was again apprehended by the police and appeared at the Children’s Court at Minda on a charge of exposed to moral danger. She was remanded in custody where she was examined medically and was found to be suffering from Gonorrhoea.

25 When she came back before the Children’s Court at Minda on 30 April 1973, the Court found that she was neglected and committed her to an institution. She was again sent to Parramatta where she was given a bed next to a woman called Rhonda Hoffman, a child killer. At this stage she was about 22 weeks pregnant. By a form of self-mutilation she became ill and was admitted to Crown Street Hospital from where she absconded. Shortly afterwards, she met Jeffrey Hall who had just been released from prison. They developed a relationship and became engaged. On 15 September 1973 her son Troy was born

26 On 16 January 1974 she was discharged from Wardship of the Minister of the Department of Child Welfare. However, approximately three weeks later she and Jeff Hall were stopped by the police in their motor vehicle. He was charged with vagrancy and she was charged with being exposed to moral danger. She was remanded for a short period of time at large. The Plaintiff then formed the view that the only way to stop the Department of Child Welfare interfering with her life was to marry. Accordingly, on 15 February 1974 she married Jeff Hall. When she returned to court a week later with the marriage certificate the case against her was dismissed.

27 It is not necessary to detail all of the Plaintiff’s history from this time to the present – it is sufficient to say that she and Jeff Hall were divorced and she subsequently met her present husband Maxwell Locklier in 1982. On 26 August 1988 they were married and are still married.

28 From the time the Plaintiff was released from Parramatta in October 1972 until March 2008 the Plaintiff has smoked marijuana. Her first husband, Jeff Hall, was a heroin addict and she was introduced to that drug by him in 1977 and became a heroin addict also. This ceased in February 1978 but at that time she started using amphetamines until early 2001 when she and Max had a religious conversion in Townsville.

The Plaintiff’s claim

29 The foregoing represents a summary only of the history given by the Plaintiff in her affidavit and as amplified in cross-examination. The summary is, however, sufficient, for the purposes of the present application to provide the background to the claims made by the Plaintiff in her Statement of Claim.

30 In her Statement of Claim the Plaintiff refers to the fact that under s 9 of the Child Welfare Act 1939 the Minister of the Department of Child Welfare became her legal guardian and that under s 10 the Minister had the care of the Plaintiff.

31 She alleges breaches of obligations under ss 9, 10, 56, 148 and 149 of the Act, s 56 dealing with appropriate discipline and the limits upon it, and ss 148 and 149 dealing with proscriptions on improper treatment of children and young persons under any person’s care. She alleges that these breaches amount to a breach of a common law duty of care.

32 The Plaintiff alleges that she was mistreated at each of the three homes being Ormond, Parramatta and Hay as follows:

“ Particulars re Mistreatment at Ormond

(a) Repeated and systematic ill-treatment, terrorising, assaults and beatings verbally, by hand and fist, forced assumption of fixed postures, rationing of necessaries and humiliation.

(b) Detention in isolation

(c) Forced labour

(d) Neglect of adequate and proper food, nursing, clothing, medical aid and lodging.

(e) Denial of Education and Training in Employment and Life Skills and Independent Living
Particulars re Mistreatment at Parramatta in 1971-72

(a) Physical beatings with hands and other objects;
(b) Repeated sexual assaults;
(c) Kicking and rough handling;
(d) Forced maintenance of static postures;
(e) Confinement in Isolation cells;
(f) Exposure to the elements;
(g) Denial of proper nutrition generally but especially on isolation;
(h) Denial of basic nutrition and hydration especially on isolation;
(i) Denial of Education;
(j) Denial of exercise, heat, ventilation, toilet facilities and nourishment for extended and repeated periods generally and especially when on isolation;
(k) Assignment of repeated demeaning menial laborious tasks such as polishing floors for extended periods by way of discipline;
(l) Denial of proper medical treatment;
(m) Denial of nurturing care and support.

(n) Knowledge that other girls, particularly indigenous girls, were being sold into prostitution by Acting Superintendent Gordon Guilfoyle and the dread of suffering the same fate.

All imposed in an arbitrary, extra-judicial and capricious manner.

Particulars of treatment at Hay February to July 1972

(a) Repeated and systematic ill-treatment, terrorising, assaults and beatings verbally, by hand fist and boot, forced maintenance of static postures, rationing of necessaries and humiliation;

(b) Repeated Sexual assaults;

(c) Physical beatings with hands and other objects;
(d) Kicking and rough handling;
(e) Forced maintenance of static postures;
(f) Confinement in Isolation cells;
(g) Exposure to the elements;
(h) Denial of proper nutrition generally but especially on isolation;
(i) Denial of basic nutrition and hydration especially on isolation;
(j) Denial of Education;
(k) Denial of exercise, heat, ventilation, toilet facilities and nourishment for extended and repeated periods generally and especially when on isolation;
(l) Assignment of repeated demeaning menial laborious tasks such as polishing floors for extended periods by way of discipline;
(m) Denial of proper medical treatment;

(n) Denial of nurturing care and support.

All imposed in an arbitrary, extra-judicial and capricious manner.

33 Although the Statement of Claim pleads that the Plaintiff has at all material times since her 21^st birthday on 6 December 1977 been under a disability within the meaning of s 11(3) of the Limitation Act 1969 such that pursuant to s 52 of the Act the limitation period is suspended, that claim was not pursued on this application. Rather, it is accepted that the 30 year ultimate bar contained in s 51(1) of the Limitation Act prevents any claim the Plaintiff has by virtue of any disability except to the extent that she can rely on s 60G. The acts in respect of which she claims ceased no later than either January 1974 when she was discharged from the wardship of the Minister or in February 1974 when the last charge against her was dismissed as a result of her marriage on 15 February 1974 to Jeff Hall.

34 The Plaintiff turned 18 on 6 December 1974 with the result that the 30 year ultimate bar referred to in s 51(1) expired on 6 December 2004, and see in this regard Ciantar v State of New South Wales [2008] NSWSC 191 at [46].

35 Section 51 provides:

“(1) Notwithstanding the provisions of this Part, an action on a cause of action for which a limitation period is fixed by or under Part 2 is not maintainable if brought after the expiration of a limitation period of thirty years running from the date from which the limitation period for that cause of action fixed by or under Part 2 runs.

(2) This section does not apply to a cause of action in relation to which an order has been made under Subdivision 3 of Division 3 (Discretionary extension for latent injury etc).”

It is in Subdivision 3 of Division that s 60G appears.

36 Although the Notice of Motion seeking the present extension by the Plaintiff asks for leave to continue the proceedings pursuant to s 50C, 50D, 50E, 50F, 51, 52, 57A, 57B, 58, 60B, 60C, 60E, 60F and/or alternatively 60G of the Act, Mr Elliot for the Plaintiff said that he was only seeking an extension of the limitation period pursuant to s 60G and s 60I. Section 60I only deals with matters that need to be proved in a s 60G application.

37 Section 60G provides:

“(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.”

38 Although any causes of action on which the Plaintiff relies accrued prior to 1 September 1990, cl 4 of Schedule 5 to the Act provides:

“(1) Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990, …

(4) The court may make an order under section 60G …, in relation to a cause of action referred to in this clause, if an application for such an order is made within:

(a) the period of 3 years referred to in section 60I, or
(b) the period of 3 years commencing on 1 September 1990.

(5) For the purposes of this clause, a reference in Part 3 to a limitation period is to be read as including a reference to a limitation period as defined by this Schedule.”

39 Section 60I provides:

“(1) A court may not make an order under section 60G … unless it is satisfied that:

(a) the plaintiff:
(i) did not know that personal injury had been suffered, or
(ii) was unaware of the nature or extent of personal injury suffered, or
(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii).

…”

40 As a result of the alleged breaches of duty pursuant to the sections of the Child Welfare Act pleaded and the Defendant’s duty of care, the Plaintiff alleges that she suffered personal injury, loss and damage as particularised in the Statement of Particulars filed in the proceedings. That Statement particularises the injuries as follows:

(1) Cuts, abrasions and bruising for physical and sexual assaults.
(2) Injuries from self-mutilating and self-harm behaviours.
(3) Heroin and Amphetamine Addiction.
(4) Sexually Transmitted Disease.
(5) Post Traumatic Stress Disorder.
(6) Recurrent Depressive Episodes.
(7) Dysthymia.
(8) Episodes of Major Depression.
(9) Social Phobia.
(10) Borderline Personality Disorder.
(11) Obesity.
(12) High Blood Pressure.
(13) Diabetes.
(14) Hepatitis C.

41 There are then particularised some 75 disabilities which appear to be an expansion of the matters particularised as injuries, especially matters arising from the psychiatric injuries the Plaintiff claims.

42 The Plaintiff’s case for an extension is put on the basis that she only relevantly gained insight in 2005 into what had happened to her in the homes. This is said to have taken place in November 2005 when she consulted her solicitors and received advice as to the availability of the cause of action. This is said to be supported by Dr Jonathan Phillips, a psychiatrist, who formed the view that the Plaintiff “didn’t really muster the resources and didn’t really have the relevant insight until late 2005” (to use Mr Elliot’s words in opening). Mr Elliot went on to say that the Plaintiff described the repressed memory style moment in 2005 when the Plaintiff came into contact with various of her former inmates at Hay. Until she met these former inmates Mr Elliot said that she described being terrified and afraid and attributing her known personality and behaviour difficulties to other issues.

43 On an application under s 60G it is generally accepted that there are three matters which must be proved to the satisfaction of the court by the applicant for an extension. The first of these is a compliance with what have been called the gateway provisions in s 60I(1). The second is evidence that the Plaintiff has a case to advance in relation to the cause of action sought to be brought. The third is the notion derived from the words “just and reasonable” in s 60G(2) which ordinarily involves the consideration of whether a fair trial is possible in the circumstances of the delay. This is sometimes discussed in terms of prejudice to the defendant from the delay but prejudice engendered by delay and fairness at trial were said not to be distinctly differing tests: BHP Steel (AIS) Pty Ltd v Lakovski [2000] NSWCA 334 at [9], Holt v Wynter (2000) 49 NSWLR 128 and Dow Corning Australia Pty Ltd v Paton (unreported, Court of Appeal, 24 April 1998).

44 In the present case, the Defendant contests all three aspects of the matters that need to be satisfied by the Plaintiff.

The Plaintiff’s evidence

45 The Plaintiff swore two affidavits on the application both dated 23 June 2008. The longer affidavit detailed generally the Plaintiff’s personal history including what she alleges she suffered at the hands of those who ran the three homes into which she was placed. The summary I have set out earlier in this judgment is largely taken from that affidavit. The second shorter affidavit dealt chiefly with matters associated with the requirements of s 60I(1) and, in particular, dealt with her consultation with Brazel Moore Lawyers in 2000 and events subsequent that led to the filing of the Statement of Claim on 14 November 2007.

46 In addition, the Plaintiff was cross-examined on a number of matters relevant to the state of her knowledge subsequent to the time that she was discharged from the wardship of the Minister, and also about inconsistencies in relation to events that she had related to doctors, psychiatrists and others and material that was contained in her affidavits.

47 I formed the view that the Plaintiff was doing her best to tell the truth. However, there were some inconsistencies in her evidence. The Plaintiff freely admitted that she did not have perfect recall of events, partly because of her drug use, partly because she repressed memories of her times in the homes and her memories are still returning even at the present time. It is scarcely surprising in any event that things that happened from between 9 and 39 years ago should not always be remembered accurately. From the point of view of the issues on the present application I consider that the Plaintiff’s evidence should largely be accepted as reliable and, where there were discrepancies in accounts she had related whether to doctors, psychiatrists or in her evidence in Court, these were not material to the issues to be determined on the application for an extension except as I shall discuss later in this judgment.

Matters relating to s 60I

48 The Defendant submitted that all of the matters contained in s 60I(1)(a) were known to the Plaintiff well prior to 14 November 2004 (being the date three years prior to the date the Statement of Claim was filed). The Defendant points to three relevant periods when it says the matters contained in s 60I(1)(a) were known to the Plaintiff. The first period focuses on the time that the Plaintiff obtained her pension from Centrelink at a time which appears to be in the mid-1990’s. The second period relates to the time the Plaintiff consulted Brazel Moore Lawyers in 2000. The third period relates to the time subsequent to her seeing Brazel Moore Lawyers from about 2001 to mid-2004.

(a) Obtaining the Centrelink pension

49 In the first place, the Defendant points to consultations the Plaintiff had with psychiatrists for the purpose of obtaining a Disability Support Pension from Centrelink for a Post Traumatic Stress Disorder. In particular, the Defendant points to para 5 of the Plaintiff’s longer affidavit which records the following:

“I am on a Disability Support Pension from Centrelink for a Post Traumatic Stress Disorder and have been receiving this pension for approximately fifteen years. I have seen Centrelink Psychiatrists and my Post Traumatic Stress Disorder resulting in my inability to function properly has been accredited to sexual abuse by my Father and my time in the various state homes.”

50 The Defendant also points to para 293 in the same affidavit where the Plaintiff says:

“I have been crazy for most of my life and when I was placed on a disability support pension by Centrelink, I started thinking that it may be possible to start some sort of action against the various homes for what had happened in my childhood.”

51 When cross-examined about this the Plaintiff explained her position in this way (at T30):

Q. And you were aware that you were diagnosed with post traumatic stress disorder at least in part because of your time in the various State homes from the early 1990s up until now, weren't you?
A. Umm, I have always known it was about part of my problem but I never knew the extent, no.

Q. When you say you have always known it was part of your problem, that is your time in the various State homes, you have always known it was part of your problems going right back to the period when you were actually in a home or homes, didn't you?
A. No, I don't think so.

Q. You believed that you were mistreated in the homes whilst you were there, didn't you?
A. Yes and I was.

Q. Certainly, and you believed at the time when you were in the home itself, that the manner of treatment of you, that could be described as unjust treatment by those who were in the home toward you?
A. Yes.

Q. You believed whilst you were in the home that you, together with other inmates, were treated badly?
A. Yes.

Q. And you believed, and I want to suggest to you knew at the time, that the way in which the management of the homes including the staff treated you, was, as you understood it, a cruel way of being treated, am I correct?
A. How can I tell you that I knew it was cruel but didn't know it was wrong, they are authorities.

Q. You at the time knew it was wrong, didn't you?
A. Everyone was getting treated like that.

Q. You knew it was wrong that everyone was being treated like that, didn't you?
A. Yes but I believed at the time the people who were in charge of me were the ultimate authorities.

Q. Yes. And these ultimate authorities, that is the people in charge of you and who you describe as ultimate authorities, going back to that very period itself when you were a teenager, you were aware that in the way in which they were operating as you believed it, was wrong?
A. Mr Saidi I don't think you really understand, I, all the time I knew I had been in Parramatta, I knew I had been in Hay but I suppressed every memory and no I didn't remember the actual details of the things that happened to me until after I got straight.
Q. I want to suggest to you you did remember details of what happened to you sufficient for you to have been able to tell a psychiatrist in the early 1990s at least about your problems with the various State homes so as to get a diagnosis of post traumatic stress disorder for you to get the disability pension?
A. I think that at the time it was more to do with my father.

52 The Plaintiff said elsewhere in her evidence that it was only when she was 44 years of age that she actually started remembering anything more about the homes than that she had been there. It is to be noted that the Plaintiff turned 44 on 6 December 2000. In the light of other evidence, which I shall discuss presently, it seems likely that the Plaintiff’s recollection of the details of her time in the homes largely returned during the year 2000 prior to the time she actually turned 44.

53 In another place in her evidence she described the memories about the sexual abuse concerning her father as being placed in one box in her mind and the memories of the time in the homes being placed in another box. She said she was able to open the box concerning her father’s sexual treatment of her when she turned 33 and deal with it but she was not able to open the box about her memories of the homes until she was 44.

54 The Defendant submitted that by reason of what the Plaintiff had told Dr Peter Morse, a psychiatrist whom she saw in May 2006, that she had suffered various problems because of the sexual assaults and other matters that took place at the homes, this showed that at all times since she left the homes she was aware of her personal injury, the nature and extent of it and the connection between it and what happened at the homes.

55 I do not accept that characterisation of the evidence. In the light of what appears and does not appear in the various medical records tendered by the Defendant and because of my general assessment of the Plaintiff’s evidence, I am prepared to accept the Plaintiff’s description she gave about the opening of the boxes. I accept that she repressed her memories of the details of the events that occurred whilst she was at the various homes until sometime in the year 2000 before she consulted Brazel Moore Lawyers in the circumstances which I will discuss later in this judgment.

56 There can be no doubt that by the time the Plaintiff saw Dr Morse she had recovered the vast bulk of her memories about events at the homes. The fact that she could then relate her problems, whether physical or psychological, to the events of the homes does not, in my opinion, prove that at all times prior to the recovery of her memories she was able to relate her problems to what happened at the homes. All she appears to have been able to acknowledge up until the age of 44 was that her father had sexually interfered with her and that had caused or contributed to the problems that she knew she suffered from.

57 In my opinion, the evidence does not support the submission that the Plaintiff was, at the time she was examined for the purpose of obtaining the Centrelink Pension, aware of the matters in s 60I(1)(a) and particularly sub-para (iii).

(b) Consultation with Brazel Moore Lawyers

58 The Plaintiff said that around the year 2000 she began attending meetings at the church with an organisation called Advocates for Survival of Child Abuse. The Plaintiff said that this was a non-government organisation dedicated to the health and wellbeing of adult survivors of child abuse where they could all talk with each other.

59 During one of the meetings one of the participants mentioned that they had been in homes and asked the Plaintiff if she had ever been in a home. When she told the person that she had she was asked if she wanted to see her welfare records. When she said that she did, somebody connected to ASCA obtained her welfare records. She took them home and read them and she said:

“They read like I was a defiant brat, and I was, but they didn’t mention what really happened to me.”

She said that she was distraught at reading them.

60 She knew of some solicitors in the main street of Gosford called Brazel Moore Lawyers because her son Troy had dealt with a solicitor from that firm when he had tried to get his own children back from Welfare.

61 The Plaintiff said that in about November 2000 she telephoned Brazel Moore Lawyers and made an appointment to see them because reading her welfare file had brought back some of the horrors in Hay, and she did not “want them to get away with doing that to me”. She said that she did not really know what she was doing or why she was seeing a solicitor or even if the solicitor could help her, but she took her Welfare file with her and attended the appointment.

62 The evidence given in one of her affidavits about this meeting is as follows:

“[17] I spent less than thirty minutes with Peter Moore of Brazel Moore Lawyers. He did not bother to read my Welfare file and just flicked though it. I couldn’t really make him understand what I wanted. I did not want money. I just wanted Welfare to tell the truth. I told Peter Moore that I had been cruelly beaten, and that I had been sexually assaulted at Hay and he asked if anyone else had seen the beatings. I told him that Chris Riley had seen one of the beatings. I also named some of the other girls. That’s when Peter Moore told me that the only way that he could help me was if I could find the six other girls who were in Hay with me and together we could do a class action. I knew what a class action was from television, but I didn’t understand what he was talking about. Peter told me that I had just been a rebellious girl, that I didn’t have any case.

[18] Peter Moore didn’t take me seriously because of the way he just flicked through my records and seemed to want to get rid of me. He was very aloof and wasn’t interested in me at all. When I visited Peter Moore, I would have been stoned from marijuana and would have looked like a “junkie”. At that time, I did not take care with my personal hygiene, although I do now because of Max’s influence. I did not shower everyday, often didn’t wear underwear, did not use deodorants and probably smelt. I looked like an absolute “grub”.

[19] I left Brazel Moore Lawyers very distressed and accidentally left my file there, crying and very upset, thinking I was just a worthless piece of shit, that I had nothing to stand on and they could get away from it all. I can’t remember, but I think I left the office, went home and “shot up”.

63 In cross-examination, the Plaintiff gave additional evidence about the circumstances in which she came to consult with Brazel Moore Lawyers and what transpired at that consultation. The evidence is lengthy but is crucial for the determination of this application. It is as follows:

Q. By the time you saw Mr Moore you had it clear in your mind that you wanted to sue?
A. Yes.

…

Q. You had it clearly in your mind that you want to sue in relation to events which occurred to you at the institutions Ormond, Hay and Parramatta at least; correct?
A. Yes.

Q. And by the time you saw Mr Moore you had it clear in your mind, did you not, that these were people, that is, these were institutions and the people within the institutions to whom you could look to to obtain compensation for the wrongs done to you, didn't you?
A. I don't hold the individuals accountable, I hold the department accountable.

Q. Whoever ultimately writes out the cheque, it was for what happened to you at Hay, Ormond and Parramatta?
A. Yes, all the time I was in child welfare.

Q. From start to finish?
A. From start to finish.

Q. And you had it clear in your mind when you saw Mr Moore that if there was, to your mind at least, a possibility that you could commence legal proceedings against them, you would have; correct?

A. Yes.

Q. And by the time you saw Mr Moore in the year 2000 you had it clearly in mind that these people, whoever they are at the end of the tunnel, were responsible for the wrongs done to you?
A. Yeah.

Q. And those wrongs included how you felt at the time emotionally; correct?
A. Yes.

Q. And how you felt at the time from a psychiatric point of view; correct?
A. Yes.

Q. By that stage, that is, by the time you formed this view, having seen Mr Moore in the year 2000, you had undertaken sufficient research on your own to obtain all relevant documentation related to your situation?
A. No.

Q. You obtained your welfare file, did you?
A. No, ASCA did.

Q. Let me say you obtained it indirectly?
A. Yeah, but I didn't do anything about it. It was someone working on my behalf.

Q. At your request; correct?
A. No, actually their instigation. I was too scared to bring it all up.

Q. Were they advising you as well, ASCA?
A. They did tell me to go and see a solicitor.

Q. And did they tell you to go and see a solicitor with a view to having your legal rights enforced?
A. Yes.

Q. And ASCA, in telling you to go and see a solicitor, did they give you assistance in term of how to obtain all relevant documentation?
A. No, they got it for me.

Q. In other words, they were prepared to act on your behalf?
A. I signed a release and they did it.

Q. Can I take it from that that you were having discussions with ASCA in terms of how you could get back at these people who had wronged you from a legal perspective?
A. Yes.

Q. However it came about, ASCA obtained the documentation?
A. Yeah.

Q. It came to be placed in your hand?
A. Yes.

Q. They were placed in your hand allowing you to read all the material before you saw Mr Moore?
A. Yes.

Q. Indeed, you had the material in your hand when you saw Mr Moore?
A. That's right. I gave it to him.

Q. You went to see Mr Moore for the specific reason, did you not, of, if possible, commencing legal proceedings against these people who had wronged you?
A. Let's call them the system.

Q. The system, all right, I will use whatever terminology you want.
A. Yes, I went to Mr Moore to try and claim compensation for wrongs done against me by the system.

Q. So we understand, the system includes those individuals who had wronged you and the institutions themselves?
A. Yes.

Q. Whoever belonged to them?
A. Yes.

Q. Did anyone go with you to see Mr Moore?
A. No, I went by myself.

Q. When you saw Mr Moore it was with the purpose in mind that you would take legal proceedings for compensation in relation to the wrongs done by those associated with the system. I have understood you completely up to now?
A. Yes.

Q. And Mr Moore was handed by you the documentation relating to your time as an inmate?
A. Yep.

Q. And you also gave Mr Moore an oral version of events as to why you were there, did you not?
A. Yes.

Q. You also indicated to Mr Moore, and if this is wrong please correct me if I am wrong, you indicated to him the reason why you were there; correct?
A. Yes.

Q. And you indicated to him that it was your intention if you could at that time to commence proceedings and to have him act on your behalf. Am I correct?
A. Yes.

Q. And it was your situation at that time that having handed Mr More the paperwork associated with your childhood or time in institutions you then followed up the paperwork with an oral history as to what had occurred to you; correct?
A. Yes.

Q. Do I take it it is the case you told Mr Moore about your psychiatric condition as it then was?
A. Yes.

Q. Did you tell him of your psychiatric post-traumatic stress disorder?
A. Probably.

Q. In terms of telling Mr Moore about your psychiatric condition, can we take it at least that you told him about how you had felt emotionally after having left the institutions?
A. Yes.

Q. And did you tell Mr Moore or indicate to Mr Moore that in your belief how you felt emotionally and psychiatrically was as a result of the treatment meted out to you whilst you were in institutions?
A. Yes.

Q. One of the matters of discussion, I want to suggest to you, between you and Mr Moore related to the timing of when these events occurred. Do you agree with that?
A. Yes.

Q. And it was a very important matter, I want to suggest to you, discussed between you and he at the time, that is, that you were complaining about events which occurred many years previously?
A. That's right.

Q. And if you disagree with any of this I invite you to tell me, but Mr Moore explained to you the situation relating to the fact that these events had occurred many years previously, did he not?
A. Yes.

Q. And, indeed, would it be fair to say that you went into that in some detail with Mr Moore?
A. I don't know about some detail.

Q. It was certainly a matter of discussion, that is, he told you that there are time limits?
A. Yes, he did explain the time limits.

Q. I want to take it a step further and suggest this to you. Not only did he explain time limits, but he also indicated to you that because of the delay in time, with the passing of each day it goes against you if you don't commence proceedings?
A. Yes.

Q. He said that to you, and I just want to go a little bit further and suggest a little bit more about your discussion with Mr Moore. He not only explained that to you but he made it clear to you that if there was any delay on your part from that time onwards it would have a negative impact on your ability to bring proceedings?
A. No.

Q. He didn't say that?
A. No. He actually told me that I didn't have proceedings unless I found the other girls.

Q. Assuming that was said, I want to suggest that throughout the issue of time, the issue of the passage of time, the issue of the fact that proceedings had to be brought at the earliest possible time was raised with you?
A. Look, I'm really sorry, but I was taking a lot of drugs then and I can't be precise about what I spoke to Mr Moore about. All I could tell you, which is the truth, is I came away from that office feeling that the whole thing was hopeless, that everything had been done to me and I had no recourse.

Q. Is it the case that Mr Moore discussed with you the difficulties of bringing such proceedings?
A. I understand that it's difficult.

Q. But is that what was discussed between you and Mr Moore, the fact that given all the factors that you were discussed, ie the passage of time, who you were trying to sue, matters of that kind, that it would be difficult to bring proceedings?
A. Quite frankly, I just remember Mr Moore reading my files and telling me that I was just an insolent child and what was my complaint.

Q. Is that as far as your memory goes with Mr Moore?
A. Look, I was on drugs when I went to see him and I was trying, I had been given these papers by ASCA and I was trying to say hey, I really was.

Q. You went and saw Mr Moore at the same time, as I understood it, as you were getting advice from ASCA?
A. After ASCA.

…

Q. Does that mean after having seen Mr Moore and having gone through the feelings of wanting to take legal action and the feelings of you wanting to get compensated by those who had wronged you, you then thought I am not going to take it any further for a while?
A. No, I did not think I was not going to take it any further for a while, no. I came away from there believing I had no chance whatsoever because of the time unless I found the other girls that were in with me, and I thought that meant, in my layman's mind I thought that meant that we had to do a class action because he said if I find the other girls. So I just thought that - I don't know the real words for it, court words, so I went away and started searching for the girls so I could still proceed and I did find them, and unfortunately my time limit is, right, but this is a continuous thing from Peter Moore. I never stopped and I won't stop.

Q. So from the time you saw Peter Moore, then, we can take it that you were still intent on bringing legal proceedings against the system?
A. Well, I didn't have a lot of faith. He didn't leave me any faith, but then when I found out there was a State senate inquiry and that Stateline had done a story on it, that the girls had been there that they had come back to the home, then I got the courage to try again. It's very disillusioning to be told that you are out of time no matter how bad the crime against you is.

Q. And you were told that then by Mr Moore, that you were out of time?
A. Yes. I understand the Statute of Limitations. I was supposed to be 24.

64 And further:

HIS HONOUR: Q. Mrs Locklier, can I just ask you this: When you went to see Mr Moore, the solicitor …
A. Yes.

Q. … did he actually mention "class action" to you or was that a conclusion you drew from things he said about finding other girls?
A. Yeah, no, that's my conclusion, that because he told me I had to find the six other girls, there was an incident where six of us were bashed at the same time and we were all witnesses to each other and he told me I would have to find those six girls and then come, like with me case.
Q. And did he say why it was you had to find the girls?
A. Because he said, just to, like to "collaborate"?

Q. Corroborate?
A. Corroborate. Yeah, that my story, I couldn't prove what I'm saying is true back then, you know, there was no state, senate inquiry then, sir. There was just my word and my files don't say the realities of it. So I guess he asked for the other girls so that it could, you could see it was true.

Q. And so where did the idea of "class action" come from?
A. Probably me watching TV.

Q. I see.
A. Well, isn't that what it is, when it's a group of people in Court?

65 Earlier that year the Plaintiff had gone to the Central Coast Health Service chiefly, it would seem from the records, to deal with her continuing cannabis use. Those records disclose, and she admitted in cross-examination, that she gave a history of depression, depressed mood, insomnia, physical retardation and appetite problems and that she had been on Prozac. The notes also record that she gave a medical history of obesity.

66 She knew, of course, that she had been diagnosed with Post Traumatic Stress Disorder sometime previously but at least from the time she obtained her Centrelink pension. The Plaintiff admitted that she obtained the psychiatric report at the time which got her the disability pension.

67 By the time, therefore, that she saw Mr Moore the Plaintiff knew of those injuries of which she complained. She knew of the physical injuries she suffered in the homes at the time she suffered them, but even if the relevant time for those is when her repressed memories were recovered, she knew of those injuries by the time she saw Mr Moore. Her own affidavit evidence was that she told Mr Moore she had been cruelly beaten and sexually assaulted at Hay.

68 In my opinion, this evidence demonstrates that the Plaintiff knew by the time she saw Mr Moore that she had suffered personal injury (s 60I(1)(a)(i)).

69 The issue of “the nature or extent” of the personal injury suffered (s 60I(1)(a)(ii)) has been discussed in a number of cases.

70 In Harris v Commercial Minerals Ltd (1996) 186 CLR 1 the High Court quoted with approval what Clark JA had said in CRA Limited v Martignago (1996) 39 NSWLR 13 at 20-21 as follows:

“The sub-section is concerned to inquire whether, in a real sense, the applicant knows the nature of his or her injury and its broad extent. Having regard to the policy of the legislation it is apparent that it is designed to afford relief to an applicant who is either unaware that he or she has suffered an injury or is aware that he or she has suffered an injury, possibly with continuing consequences, but is unaware of its complications, implications or potentially serious consequences. … Practically speaking the resolution of the inquiry whether the applicant was unaware of the nature of the injury should throw considerable light on the task of resolving the second inquiry as to the extent of the injury. For instance, a finding that the applicant is aware that he or she has suffered a serious neck injury involving damage to the spine will, in general, provide an answer to the inquiries as to both nature and extent. In this context I would emphasise that the court is concerned not with the technical name or description of an injury but its effect, actual and potential, upon the applicant.”

71 The High Court also quoted with approval what the Court of Appeal said in F J Walker Ltd v Webber (unreported, NSW Court of Appeal, 16 November 1989 at 4) as follows:

“One can know 'the nature and extent' of one's injury even if one is ignorant of the final form which it will take. Few plaintiffs ever know this, even at the time of trial, and it would be difficult to attribute to Parliament an intention that potential plaintiffs may completely disregard limitation periods merely because they are unable to predict their final state."

72 The Plaintiff’s evidence concerning the nature and extent of her injuries is to be found in both of her affidavits. In the shorter affidavit she said this:

“[8] I first smoked marijuana after being released from Parramatta in 24 October 1972 and have continued to smoke it until 1 March 2008 when I gave it up by moving to Hay. I found I could only cope with life if I smoked marijuana, which I found relaxed me and gave me confidence and a feeling of euphoria.

[9] My first husband Jeff was a heroin addict and around 1977 after being introduced to the drug by him, I became a heroin addict. In February 1978, I overcame my addiction as I was concerned that it was affecting my ability to look after my children properly while I was high. I still needed drugs to cope with life and suppress my mind so I changed to a combination of marijuana and amphetamines. I found that the amphetamines enabled me to take care of my children, whereas heroin made it difficult. Amphetamines kept me awake and instead of just making my children sandwiches, I would make them fancy sandwiches, I would clean their rooms and wash the walls etc.

[10] I continued to use amphetamines until early 2001 when Max and I gave our hearts to the Lord and went to Townsville for bible school. I continued to use marijuana until 1 March 2008 when Max and I moved to Hay.

[11] I moved to Gosford in the late 1990’s and was using amphetamines daily and would have a couple of sessions a day where I smoked five or six cones of marijuana.”

73 In her longer affidavit she said this:

“[273] I cannot sleep more than three or four hours of a night without waking, which means that I have a broken sleep pattern and usually wake up tired and weary. I have to go to the toilet between three and five times a night and sometimes wake up in a fright or a cold sweat. I cannot sleep in the dark, without a fan or without noise. I suffer from nightmares and sometimes wake up screaming.

[274] I am overweight and need assistance with my personal hygiene after any motion of my bowels.

[275] I am claustrophobic and have trouble in confined spaces. I have trouble travelling in a lift or going into any small room.

[276] My menstrual cycle is a nightmare, lasting between five and seven days a month. The bleeding seems excessive and during the night I have to change my sanitary pad a few times during the night. Even then, I still manage to get blood on the sheets and my night attire. I also drip blood on the floor and down my legs and never feel it. I now cut up old towels and use as sanitary pads, although I find they hurt and it is uncomfortable to walk. Max has to put protectors on our bed when I have my periods.

[277] Since my days of incarceration in the New South Wales juvenile justice institutions I have found it very hard to trust people, talk, sleep or feel at ease. I have gone through life at the mercy of whatever moods and dysfunctions that have been operating at the time. I experience sleep apnea (interruptions in breathing during sleep) and also rapid and shallow breathing, both conditions brought on automatically through fear that was conditioned into me at Hay and Parramatta

[278] I suffer from depression and am prone to complete and utter mood swings. I can sometimes be completely irrational and paranoid and very distrustful of anyone I meet.”

74 The Plaintiff does not suggest that any of the matters related in those affidavits were unknown to her prior to the recovery of her memories in 2000 about what happened to her in the homes.

75 In my opinion, the Plaintiff’s evidence demonstrates that she was aware of the nature and extent of the personal injury she suffered. She had told Mr Moore that she had been cruelly beaten and sexually assaulted at Hay. She was aware that she had used drugs in one form or another ever since she was finally released from Parramatta in October 1972. She knew that she had problems coping with life and that was why she took drugs. She knew she suffered from Post Traumatic Stress Disorder (or so she had been told by the psychiatrists who assessed her for the pension) and she knew that she was morbidly obese. She knew that she was suicidal from time to time (she told Dr Moore this in May 2006). She knew that she had difficulty sleeping every night. She knew that she had problems with her menstrual cycle every month.

76 In my opinion, the evidence discloses clearly that at the time the Plaintiff consulted Brazel Moore Lawyers she was aware of the connection between the things that she was suffering and what had happened to her in the homes (s 60I(a)(iii). In her longer affidavit (at para 293) she said:

“When I was placed on a disability support pension by Centrelink, I started thinking that it may be possible to start some sort of action against the various homes for what had happened in my childhood.”

77 In her shorter affidavit the Plaintiff said that after her Welfare file was obtained for her by someone through ASCA in 2000, she read it and:

“Reading my Welfare file had brought back some of the horrors in Hay and I didn’t want them to get away with doing that to me. … I did not want money. I just wanted Welfare to tell the truth. I told Peter Moore that I had been cruelly beaten, and that I had been sexually assaulted at Hay.”

78 The Plaintiff submits that she did not have full insight into matters until about November 2005 after she had revisited Hay with some of the other girls from the home and consulted her present solicitors. The Plaintiff also submits that did not know that she could bring proceedings until she received advice from her present solicitors, particularly because of the negative advice she claims was given by Brazel Moore Lawyers. That, however, is not the appropriate test for the purposes of s 60I(1)(a)(iii).

79 It was made clear in both Dedousis v The Water Board (1994) 181 CLR 171 and Drayton Coal Pty Ltd v Drain(unreported, Court of Appeal, 22 August 1985) that s 60I(1)(a)(iii) is concerned with the ignorance of the existence of acts or omissions rather than legal conclusions. It was further made clear that the acts and omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the Plaintiff relies to found the cause of action referred to in s 60G, and those acts or omissions will ordinarily be found in the Plaintiff’s particulars of negligence. However, the Court of Appeal went on to say (at 7):

“The mere fact that a plaintiff’s lawyers can think up some act or omission, upon which they will wish to place some reliance at the trial, which was not known to the plaintiff at the relevant time, does not automatically mean that the requirements of s 60I(1)(a)(iii) are satisfied. On the other hand, the decision in Dedousis establishes that unawareness of the material act or omission which constitutes a substantial ground upon which reliance will be placed is sufficient to satisfy s 60I(1)(a)(iii).

It is important to bear in mind, however, that satisfaction of the requirements of s 60I(1)(a)(iii) is not an end to the matter. One of the considerations which, in a given case, it may be proper to take into account under s 60G(2) is the extent of a plaintiff’s awareness at the critical time of acts or omissions which, by reason of their connection with the plaintiff’s injury, are to be relied upon as constituting actionable negligence. It may well be that such questions of degree will also have a bearing upon the justice and reasonableness of extending a limitation period. …[T]he state of a plaintiff’s awareness of certain acts or omissions connected with the plaintiff’s injury may, in a given case, lead a court to conclude that it would not be just or reasonable to permit the plaintiff to have an extension of the limitation period, even though the plaintiff is able to establish that some other act or omission only came from notice at a later time. In other words, s 60G(2) may, depending upon the facts and circumstances of a case, operate as an important qualification upon the practical effect of s 60I.”

80 In my opinion, the evidence establishes that the Plaintiff in 2000 was aware of the connection between the personal injury she suffered and the acts and omissions she relies upon as having happened at the homes whilst she was incarcerated there.

(c) From 2000 to 2004

81 As mentioned above, the Plaintiff places some importance on the negative advice that she received from Brazel Moore Lawyers. She said she left the consultation with Mr Moore thinking that she had nothing to stand on and “they” could get away with it.

82 However, she admitted in her oral evidence that Mr Moore had not used the term “class action” but, rather, had said that she needed to get the assistance of the other girls who had been in the home with her to corroborate her story to prove that what she was saying was true. She said that shortly after she saw Mr Moore she moved to Townsville and she found the other girls online within about ten months. Even on her own evidence of what Mr Moore said to her she knew that once she had found the other girls she at least had a chance in bringing proceedings.

83 It was submitted that I should be careful of accepting the evidence of the ten month period in which she found the other girls. Rather, it is said the true position was disclosed by the Plaintiff in this evidence:

Q. But you found the other girls, was that at the reunion or some other occasion.
A. No, when I moved to Townsville and got on the net and I found them through Sharon O'Neil. She had done a story on State Line and I rang Sharon O'Neil and she put me in contact with oh, Maureen McCulloch… .

84 Mr Elliot points to that portion of an affidavit of an investigator Ross Duncan where he identifies the Stateline programme as having been broadcast on 28 May 2004. That was, in any event, a period of some three and a half years prior to the commencement of the proceedings.

85 There is no real explanation given about the delay from the time she located the other girls online (in what must have been prior to the end of 2001 if the ten month story is accepted, or by the middle of 2004 if the State Line story is accepted) and the commencement of the proceedings in 2007. All that is put on the Plaintiff’s behalf is that she did not manage to muster the sufficient moral reserves to do anything about the matter until 2005. Once again, no explanation is given about the delay from November 2005 when she first consulted her present solicitors until the filing of the Statement of the Claim on 14 November 2007.

86 With some regret I have come to the conclusion that the Plaintiff does not satisfy the requirements of s 60I(1)(a) to justify an extension of time for her to bring the proceedings. She had the requisite knowledge about the matters in s 60I(1)(a) by the time she saw Brazel Moore Lawyers in 2000.

87 This conclusion is sufficient to dispose of the application but, in deference to the arguments put on the other matters, and against the possibility that I am in error in this conclusion, I will consider the two other aspects of the matter.

Case to advance

88 The Defendant resisted the notion that the Plaintiff had a case to advance or at least that it had any strength by reason of inconsistencies in the Plaintiff’s evidence concerning such matters as the number of sexual assaults she was subjected to and the number of bashings. This aspect of the matter was also resisted in relation to the claim that the State failed to provide her with a proper education at the institutions she was sent to.

89 Putting aside the issue of the failure to provide a proper education, the material in the Plaintiff’s affidavits, supported by the evidence in the affidavit of Christina Emily Green, another former ward of the State who was incarcerated at Parramatta and Hay with the Plaintiff, provides sufficient material to show that the Plaintiff has a real case to advance in terms of assaults, whether sexual or otherwise, and in terms of breaches of ss 56, 148 and 149 Child Welfare Act on the assumption that those sections give rise to civil proceedings for damages, a matter that was not argued before me. In any event, the Plaintiff pleads, somewhat elliptically in the Statement of Claim, that there was a common law duty owed to her which was breached, and I take that to be the ordinary duty of care.

90 If the only claim made related to the failure to provide a proper education for the Plaintiff, I would have serious doubts that there was a case to advance particularly in the light of the fact that it was the Plaintiff and her mother who sought, and surprisingly obtained, an exemption that relieved the Plaintiff from the obligation of attending school from September 1971 when the Plaintiff was aged only 14 years.

91 In addition, there is no evidence at all to support some of the particulars such as an allegation that the State had knowledge “that other girls, particularly indigenous girls, were being sold into prostitution by Acting Superintendent Gordon Guilfoyle”. It is difficult to see, in any event, how the Plaintiff can complain of that matter.

92 Were I of the opinion that the Plaintiff had established the matters necessary to pass through the section 60I gateway and were I to be satisfied that a fair trial was possible in the circumstances, I would hold that the Plaintiff had established a case to advance in relation to the principal matters of which she complains, being the breaches of the sections of the Child Welfare Act and the common law duty that arises from those provisions.

Is a fair trial possible?

93 This consideration arises because the Court must decide if it is just and reasonable to extend the limitation period pursuant to s 60G(2).

94 The matter presents immediate and obvious problems in that the events complained of took place between 1970 and 1974. That inevitably means that memories will have faded, and it is not reasonable to expect people to be able to remember the details of events that took place such a long time ago. In addition, the Plaintiff was one of many girls incarcerated at the three homes concerned and it would be unreasonable to expect anyone to remember all of the relevant incidents of which the Plaintiff complains concerning her treatment.

95 On a more specific level, both parties have filed affidavits from investigators to ascertain who of the staff of the institutions and other persons referred to by the Plaintiff in her affidavits are still alive and available to give evidence. The Plaintiff’s affidavit is that of Ross Ewan Duncan sworn 27 November 2008 and that of the Defendant is of Peter Maxwell sworn 4 May 2009. Neither was cross-examined. Mr Maxwell’s affidavit has the small advantage over that of Mr Duncan’s in that in relation to one or two of the relevant persons he has more up to date information.

96 It is clear from the investigators’ evidence that most of the relevant people have died or are sufficiently elderly that for physical or mental reasons they either cannot give evidence or there would be considerable difficulties about the giving of evidence.

97 Mr Duncan has prepared a table in his affidavit of 18 witnesses who he has identified from the Plaintiff’s files. Of those 18 witnesses he is able to say only that three of them are alive and able to give evidence and a fourth is possibly in that category. Of those four, one of them was a fellow inmate of the Plaintiffs.

98 In relation to another one of the four witnesses identified by Mr Duncan as being available to give evidence, Mrs Patricia (Effie) Ray, Mr Maxwell has obtained a medical certificate from her doctor which indicates serious physical problems that would make giving of evidence by her difficult. The doctor recommends that she be excused from attending Court proceedings because of her multiple chronic ailments. That medical certificate is dated 10 November 2008.

99 The situation with the significant people alleged by the Plaintiff to have mistreated her is as follows:

Superintendent Gordan Gilford (referred to by the Plaintiff as Superintendent Guildford) (assaulted and sexually assaulted the Plaintiff at Parramatta). Mr Gilford apparently suffers from dementia and is unaware of his surroundings. Several attempts to make contact with him and his wife have been unsuccessful.
Superintendent Valentine (assaulted and sexually assaulted the Plaintiff at Parramatta). Searches of the electoral roll and purchasers index searches have failed to trace this person whose full name is Frank John Valentine.
Superintendent Monaghan (assaulted and sexually assaulted the Plaintiff at Parramatta). Mr Monaghan is still alive but has been diagnosed with dementia of an Alzheimer’s type of a mild degree. A report from his neurologist says:
“I have no doubt in saying that this gentleman would have difficulty giving evidence about events in the past as a consequence of his dementia and undoubtedly his evidence could be questioned as to its veracity because of his dementing illness.”
Superintendent Alex Maxwell (in charge of the Hay home). Mr Maxwell suffers from a number of medical conditions which may preclude him from giving evidence.
Doris Ann Maxwell (assaulted the Plaintiff at Hay). Mrs Maxwell died on 5 October 2001.
Lindsay Clifton (an officer at Hay who assaulted the Plaintiff). Mr Clifton died on 24 January 1990.

100 It is not necessary to detail all of the evidence concerning other relevant persons identified in the Plaintiff’s evidence and her file. It is sufficient to say that of 21 persons that Mr Maxwell identifies (not including members of the Plaintiff’s family, but including doctors, psychiatrists, matrons of institutions and other officers of the Department) 16 of these people are either dead or unable to be found, two have declined to assist and one is Mrs Ray to whom I have already made reference concerning her medical condition.

101 The Plaintiff says that there are four officers available whom she identifies as Mayhew, Hardy, Maxwell and Ray. I have already discussed Ms Ray and Mr Maxwell, and it seems unlikely that either will be in a position to give evidence.

102 In relation to Mr Mayhew the Defendant points, somewhat ironically, to an affidavit of Gerard Malouf, the Plaintiff’s present solicitor, sworn 24 March 2009 in other proceedings brought against the State of New South Wales where Mr Malouf said that he was advised Mr Mayhew was unable to give evidence at the hearing due to ill-health and attached a letter from Mr Mayhew’s wife together with a medical certificate from his doctor.

103 The Plaintiff also points to the fact that the Plaintiff’s file is available and points to other documents which are in the public domain and are referred to in some of the annexures to Mr Duncan’s affidavit.

104 In my opinion, the Plaintiff’s file is likely to be of minimal assistance in relation to any defence of what are said to be illegal acts committed such as assaults and sexual assaults. There is nothing in the file about those matters and one would not expect there to be. In that regard, the file will be of no use in being a substitute for the absence of the persons who are said to have been involved or to have had knowledge of the matters alleged.

105 Mr Elliot points to particular documents in the Plaintiff’s file which appear to be reports of wrongdoing on the Plaintiff’s behalf whilst in the homes together with punishments that she was given. On the face of the documents, the punishments appear to be what were allowed pursuant to s 56 of the Child Welfare Act. To the extent that the punishments were implemented in an unlawful way (which is at least part of the Plaintiff’s complaint) the documents are, not unnaturally, silent.

106 The material that is in the public domain appears to relate to investigations, whether by journalists or officials, into the homes and the running of them. While such material might provide some general assistance in the sense that it might identify unsatisfactory practices or approaches to care by those running the homes, the material can be of little assistance in dealing with particular matters complained of by this Plaintiff against particular officers. It does not seem to me that the material would go any distance towards enabling a fair trial to be had of the claims.

107 There is the additional consideration when coming to a view about whether it is just and reasonable to extend the limitation period, and that is the fact that there are unexplained periods of delay from the time that the Plaintiff, by her own evidence, was aware of the matters in s 60I(1)(a). There are two periods of time in particular that are significant. The first is the time at the least from when the Plaintiff managed to find the other girls online some ten months or so after she consulted Brazel Moore Lawyers. That must have occurred by the end of 2001. The second period is from 2005 to the date of filing the Statement of Claim in November 2007. Even if it were accepted that 2005 was the time the Plaintiff was aware of all the matters in s 60I(1)(a) for the first time a gap of at least two years, which is unexplained, is a matter of considerable significance when the events complained of are said to have occurred between 1970 and 1974.

108 The Defendant points to two other matters which it says should be taken into account when looking at this aspect of s 60G. The first concerns the Plaintiff’s psychiatric condition and has a number of aspects to it. The first is that the position seems very clearly to be that the Plaintiff suffered psychiatric injury from the sexual assaults that her father perpetrated upon her over a ten-year period. The behaviour that led to the Plaintiff being incarcerated in the homes in the first place seems to be related to that treatment by her father. The psychiatrists who have examined her since these proceedings were contemplated or commenced relate her present psychiatric problems not only to the treatment that she received in the homes (accepting the Plaintiff’s accounts in that regard) but to the sexual abuse she sustained as a child.

109 Endeavouring to separate out the causes of the present psychiatric condition would always have been a difficult task. The Defendant says, however, for any psychiatrist and for the Court to have to endeavour to do that some 30 to 35 years later is a clear indication that a fair trial is not now possible.

110 The second aspect of the matter is that the Plaintiff is now not able to identify psychiatrists that she agreed she had seen over many years from the time that she ceased to be a ward of State. The evidence of such psychiatrists at earlier periods of time, it is submitted, would be clearly relevant, particularly in the light of the Plaintiff’s assertion that her memories were repressed of her treatment in the homes and the link between that treatment and her psychiatric condition until at least the year 2000. The Plaintiff was asked in cross-examination for any information she could provide about the identity of the psychiatrists that she saw but she was unable to do that. The Defendant sought information about these matters in its request for particulars to the Plaintiff’s solicitors by letter of 5 March 2008. The reply of 16 April 2008 said that the information would be supplied as soon as possible but it appears that that had not happened, at least as to the identity of the psychiatrists, by the time the application came on for hearing before me.

111 The other matter the Defendant points to is the matter of damages which the Plaintiff might recover were the proceedings to go ahead. This issue is not unrelated to the previous issue of causation of the Plaintiff’s present problems.

112 In Saffioti v The Estate of the Late Dr Bailey (unreported, Supreme Court of NSW, Badgery-Parker J, 28 November 1995) Badgery-Parker said (at 7):

“it would undoubtedly be correct to take into account the likely quantum of damages in the proposed action”.

Similarly, in Allen v Drayton Coal Pty Ltd [1995] NSWCA 14 the fact that the Plaintiff would, if permitted to have an extension of time to bring his claim, have recovered only a modest amount was thought to be a relevant consideration.

113 The position in the present case is far removed from the position in Allen v Drayton Coal where it was able to be determined that the amount the Plaintiff might recover was in the order of $900. In the present case, there is no doubt that the Plaintiff suffered a number of injuries and is left with a number of considerable disabilities which impact every aspect of her life from employment to continuing health problems, to being able to care for herself. For reasons briefly discussed already, it is clear that most or all of these matters have not solely been brought about by the matters of which the Plaintiff seeks to complain in the present case. On the basis of the evidence available I could not conclude that the quantum of any damages the Plaintiff might recover in the present proceedings would be so modest as not to justify the proceedings going ahead. The real difficulty, as I have noted, is separating the causes of the Plaintiff’s present problems and assigning figures to each of those causes.

114 In my opinion, there is not able to be a fair trial in this matter by reason of:

(a) the absence of necessary witnesses,

(b) the long period of time since the events complained of with the result that correctly ascertaining what happened in reliance on the memory of witnesses would be extremely difficult; and

(c) the difficulty after so many years of separating the causes of the Plaintiff’s ongoing problems.

In addition, the fact that there are unexplained periods of delay at the crucial times I have discussed, when coupled with the matters of prejudice that I have set out, means that it is not just and reasonable to extend the limitation period.

115 The Orders that I make are these:

1. The Plaintiff’s Notice of Motion is dismissed.

2. The Plaintiff is to pay the Defendant’s costs of the Notice of Motion.

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