M v G

[2016] NSWDC 454

District Court

New South Wales

Medium Neutral Citation:

M v G [2016] NSWDC 454

Hearing dates:

18 October 2016

Date of orders:

18 October 2016

Decision date:

18 October 2016

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1)   Stay the proceedings until the new law term in 2017.

(2)   List the proceedings for directions on Monday, 6 February 2017 at 10am before the Judicial Registrar, those directions to be informed by any material indicating the current state of any criminal proceedings against the defendant in respect of the matters the subject of these proceedings.

(3)   The motion is otherwise dismissed.

(4)   Order that costs of the motion be costs in the cause.

Catchwords:

CIVIL PROCEDURE — Stay of proceedings — Concurrent civil and criminal proceedings

Legislation Cited:

Limitation Act 1969, s 58

Limitation Amendment (Child Abuse) Act 2016 (NSW), s 6A

Uniform Civil Procedure Rules 2005, r 13.4

Cases Cited:

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Griffin v Sogelease Australia Limited [2002] NSWCA 421

Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26

Jefferson Limited v Bhetcha (1979) 1 WLR 898

McMahon v Gould (1982) 7 ACLR 202

McMaster v State of NSW; Karakizos v State of NSW; Karakizos v State of NSW [2012] NSWDC 108

Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16

Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514; [1992] HCA 55

Texts Cited:

Macquarie Dictionary

New South Wales, Parliamentary Debates, Legislative Assembly, 16 February 2016.

Category:

Procedural and other rulings

Parties:

M (plaintiff)
G (defendant)

Representation:

Counsel:
Ms L Goodchild (plaintiff)
Mr P Folino-Gallo (defendant)

Solicitors:
CMC Compensation Lawyers (plaintiff)
Prime Lawyers (defendant)

File Number(s):

2016/76513

Publication restriction:

Anonymised for publication.

Judgment

1. This is a claim by the plaintiff for damages for alleged sexual abuse 22 years ago by the defendant, who was then about 22 years of age. The plaintiff was then a 16-year-old schoolgirl. 

2. The defendant seeks an order for dismissal of the proceedings under r 13.4 of the Uniform Civil Procedure Rules 2005 on three grounds:

1. that the proceedings do not fall within s 6A of the Limitation Amendment (Child Abuse) Act 2016 (NSW) and is therefore statute-barred;

2. that there is such prejudice to the proceedings by the delay that a fair trial of the action is now impossible; and

3. that because of pending criminal proceedings, as an alternative, the matter should be stayed at least until those proceedings are concluded. 

3. In submissions, the presence of the third ground, namely the existence of pending criminal proceedings, was conceded by the defendant to inform any decision about the second ground, that a fair trial was impossible. As a result, the defendant declined to press for any permanent stay of the matter in this application.  That leaves the first and third grounds.

4. As to the first ground, s 6A provides that there will be no limitation period for child abuse actions. Subsection (2) provides:

“(2) In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age:

(a)  sexual abuse,

(b)  serious physical abuse,

(c)  any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse).”

5. The issue is whether the conduct of the defendant in this case constitutes child abuse.  The defendant did not lead any evidence or provide any authority or any dictionarial definition of abuse that might inform his application to the present case. The defendant conceded that, "Sexual assault may fall within the … definition of 'abuse'" and submitted that the present case was not one of sexual assault and, therefore, not one of sexual abuse.  That argument is misconceived: just because some dogs are brown does not mean that something that is not brown is not a dog. 

6. Assistance as to the ambit of sexual abuse can be found in the Macquarie Dictionary, which defines the noun "abuse" principally as "wrong or improper use".  In the Second Reading speech introducing the Limitation Amendment (Child Abuse) Bill 2016, the Attorney‑General said the following:

“‘Sexual abuse’ of a child has been defined by the royal commission as ‘any act which exposes a child to, or involves a child in, sexual processes beyond his or her understanding or contrary to accepted community standards’”. [1]

1. New South Wales, Parliamentary Debates, Legislative Assembly, 16 February 2016, 43 (Gabrielle Upton, Attorney-General) Limitation.pdf.

7. The Attorney also in that speech stated:

“To avoid being overly prescriptive, the bill does not exhaustively define what conduct constitutes ‘sexual abuse’ or ‘serious physical abuse’. Rather, the bill requires courts to determine whether or not abuse has occurred having regard to the circumstances of each individual case and the ordinary meaning of the terms. The term ‘child abuse’ should be interpreted in a beneficial manner.” [2]

2. Ibid.

8. There appears to be some degree of commonality between the expressions in the dictionary and in the Attorney’s speech that might inform the construction of the term, as "wrong or improper use" bears some similarity to "contrary to accepted community standards". 

9. Allegations in the statement of claim, amplified in the evidence indicate conduct contrary to accepted community standards, involving the wrong and improper use of sexual conduct. In that event, it is, at the very least, arguable that the conduct falls within the definition of child abuse and, certainly, it cannot be said that such an argument would be "clearly untenable"[3] under the principles in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 so as to justify the proceedings being dismissed. Limitation questions involving issues of fact should not be decided in interlocutory proceedings except in the clearest of cases. [4]  

   3. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130.

   4. Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at [31]; [1992] HCA 55.

10. Further, even if it were the case that an argument concerning the application of s 6A was “clearly untenable”, that would still leave the question of whether any other provision in the Limitation Act 1969 might operate to enable the plaintiff to have an extension of time, a matter which has only briefly been canvassed before me. The evidence indicated that the plaintiff first became aware recently of serious psychological damage attributable to the conduct between her and the defendant, when in late 2015 her younger daughter referred to a dress given to her by her "nanny". That evidence enlivens late discovery of damages and the possibility of an extension under s 58 and other provisions of the Limitation Act. 

11. Accordingly, I am not minded to dismiss the proceedings under r 13.4 or otherwise.

12. As to the third ground, namely that the presence of pending criminal proceedings warrants a temporary stay, the status of those criminal proceedings is uncertain.  An investigation was apparently commenced in January 2016 and remained ongoing in May 2016, but there is no other material to determine the status of the investigation and whether it is continuing.  In these circumstances, both parties were content for no further proceedings to occur for a few months until the status of the criminal proceedings is clarified.

13. The existence of criminal proceedings does not constitute an automatic bar to the continuation of civil proceedings. [5] Nevertheless, the Court is obliged to "consider whether there is a real and not merely notional danger of injustice in the criminal proceedings". [6]

    5. See McMaster v State of NSW; Karakizos v State of NSW; Karakizos v State of NSW [2012] NSWDC 108 at [25]-[26], referring to Griffin v Sogelease Australia Limited [2002] NSWCA 421, Jefferson Limited v Bhetcha (1979) 1 WLR 898, Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19.

    6. See McMahon v Gould (1982) 7 ACLR 202 per Wootten J. See also Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26.

14. In the circumstances, where there is uncertainty about the status of the criminal proceedings, and the likely timetable for their conclusion if they remain pending, I accept that it is appropriate for the proceedings to be stayed for a short period, in this case, a few months, until that matter can be clarified. Whether the proceedings should be stayed for a further period would be informed by the anticipated progress of those other proceedings.

15. As to costs, both parties seek costs. Costs could have been avoided had the parties attempted to consider an agreeable way forward before today. I am not persuaded that fault lies clearly in the hands of one party rather than the other.  In my view, the costs of this motion should abide the outcome of the proceedings.

16. In those circumstances, I make the following orders:

1. Stay the proceedings until the new law term in 2017.

2. List the proceedings for directions on Monday, 6 February 2017 at 10am before the Judicial Registrar, those directions to be informed by any material indicating the current state of any criminal proceedings against the defendant in respect of the matters the subject of these proceedings.

3. The motion is otherwise dismissed.

4. Order that costs of the motion be costs in the cause.

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Endnotes

Decision last updated: 31 August 2020