Rennie v Rennie
[2010] SADC 11
•29 January 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
RENNIE v RENNIE
[2010] SADC 11
Judgment of His Honour Judge Millsteed
29 January 2010
PROCEDURE
Trial of preliminary issues pursuant to r 211 of the District Court Civil Rules 2006 (SA) - whether plaintiff should be granted an extension of time pursuant to s 48 of the Limitations of Actions Act 1936 for personal injury resulting from sexual acts committed against her by the defendant - whether facts material to her case were ascertained after the expiration of the period of limitation but less than 12 months before the proceedings were instituted - whether the proceedings should be stayed on grounds of res judicata, "Anshun" estoppel or abuse of process - extension of time granted in respect of two of 41 causes of action - application for permanent stay of proceedings dismissed.
Limitation of Actions Act 1936 (SA) s 45(1), s 48(1), s 36(1); District Court Civil Rules 2006 (SA) r 211; Criminal Injuries Compensation Act 1978 (SA) s 14(1); Criminal Law Consolidation Act 1935 (SA) s 11, s 49; Law Reform (Ipp Recomendations) Act 2004 ss (3a), (3b); District Court Act 1991 (SA) s 7; District Court (Criminal and Miscellaneous) Rules 1992 (SA) r 7.07, referred to.
Read v Brown [1888] 22 QBD 128; Williams v Milotin (1957) 97 CLR 465; Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159; Re F (Mental Patient: Sterilisation) [1990] 2 AC 1; Boughey v The Queen (1986) 161 CLR 10; Dawson v Commonwealth (1994) 12 WAR 29; Battiato v Lagana [1992] 2 Qd R 234; Brook v Flinders University of South Australia (1988) 47 SASR 119; Danae Investment Trust plc v MacIntosh Nominees Pty Ltd (1993) 61 SASR 341; Swietlik v Central Linen Service (1991) 56 SASR 569; Lovett v Le Gall (1975) 10 SASR 479; Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, considered.
RENNIE v RENNIE
[2010] SADC 11INTRODUCTION
This is a trial of preliminary issues conducted pursuant to r 211 of the District Court Civil Rules 2006 (SA) (“the Rules”).
The first issue is whether the plaintiff should be granted an extension of time pursuant to s 48 of the Limitation of Actions Act 1936 (SA) (“the LAA”) to bring actions in tort (trespass to the person) for personal injury resulting from sexual acts committed against her by the defendant when she was a child. The plaintiff contends that she qualifies for an extension of time because facts material to her case, namely, the existence and contents of a psychiatric report from Dr B K Jha, were not ascertained by her until after the expiration of the period of limitation and less than 12 months before the proceedings were instituted (s 48(3)(b)(i)). The defendant opposes the application. The second issue is whether the proceedings should, in any event, be stayed on grounds of res judicata, ‘Anshun estoppel’ or abuse of process by reason of the plaintiff having obtained compensation under the Criminal Injuries Compensation Act 1978 (SA) (“the CICA”) for sexual offences committed against her by the defendant.
On the trial the plaintiff gave oral evidence, called Dr Jha and tendered his report (Exhibit P2). The defendant tendered several documents but did not give oral evidence.
BACKGROUND
The plaintiff is the defendant’s daughter and was born on 10 April 1973. The plaintiff, her brother and sister were raised by their parents in Whyalla where the defendant worked for BHP in a steel mill. The plaintiff’s brother and sister are four years older and two years younger than the plaintiff respectively.
In 1985 the defendant was arrested by police and charged on Information in the Magistrates Court with two counts of unlawful sexual intercourse with the plaintiff, contrary to s 49 of the Criminal Law Consolidation Act 1935 (SA). The particulars of the offences contained in the charges asserted that both offences were committed between 10 April 1983 and 10 April 1984, when the plaintiff was aged between 10 and 11 years.
The charges were based on a signed statement from the plaintiff given to police on 10 August 1985 (Exhibit D5) when she was 12 years of age. The plaintiff initially complained about the defendant’s misconduct to her mother. However, her mother was supportive of the defendant and failed to take any action. The plaintiff then complained to her grandmother who reported the matter to the Department of Community Welfare. The police were then contacted. The plaintiff refused to return home and lived with her grandmother.
In her statement the plaintiff described two occasions when the defendant had sexual intercourse with her. The first offence occurred during 1983, when the plaintiff was 10 years of age, and involved an act of penile penetration of the plaintiff’s vagina. The second offence occurred in 1984, when the plaintiff was 11 years of age, and involved an act of fellatio. Each offence was performed in the family home when the plaintiff’s mother and her brother were absent.
On 26 August 1985 the defendant pleaded guilty in the Magistrate’s Court to two offences of unlawful sexual intercourse. He was committed to the Supreme Court for sentence, where he was sentenced, on 25 November 1985, to imprisonment for four years and released on parole about 18 months later.
In the present proceedings the plaintiff testified that the offences to which the defendant pleaded guilty were not the only occasions when the defendant sexually abused her. The plaintiff said that she was sexually assaulted by him on “hundreds” of other occasions when she was aged between four and 12 years.[1] According to the plaintiff, those other sexual assaults also happened in the family home and on occasions when her mother and brother were absent.
[1] T 12.
The plaintiff testified that she later experienced nightmares and flashbacks of the sexual abuse, feelings of guilt, anxiety attacks, visual and olfactory hallucinations (seeing the defendant standing in front of her, recalling the smell of his body odour and the smell and taste of his semen), low self-esteem, lack of motivation, unrealistic life expectations, substance abuse, suicidal ideation, problems maintaining intimate relationships, high levels of anxiety concerning her children’s safety and problems parenting her children.[2] It is not clear from the plaintiff’s evidence when she began experiencing each of those various symptoms.
[2] T 16-17, T 28; see eg, Reports of M Wachla (Exhibit D1) and Dr BK Jha (Exhibit P2).
In early 2004 the plaintiff commenced a correspondence course to become a counsellor. The course lasted six months. The plaintiff testified that her studies caused her to realise that she personally needed counselling.[3] On 7 December 2004 she attended the Whyalla Counselling Service and consulted Ms Michele Wachla, a counsellor and social worker. For the next 12 months the plaintiff regularly attended therapeutic counselling sessions with Ms Wachla. The plaintiff testified that it was in the course of receiving counselling that she realised her symptoms were attributable to the sexual abuse perpetrated by the defendant. She said: “Michele went through stage by stage with what I was feeling and stuff like that and I realised then it was going back to when I was a child”.[4]
[3] T 14.
[4] T 36-37.
During 2005 the plaintiff instructed her solicitors, Hume Taylor and Co, to pursue a claim for criminal injuries compensation under the CICA.[5] For those purposes the plaintiff requested Ms Wachla to prepare a report in relation to the counselling she had received. The plaintiff’s solicitors subsequently received a report from Ms Wachla, dated 12 August 2005 (Exhibit D1), set out hereunder.
[5] T 23, see affidavit of Penelope Charlesworth sworn on 12 June 2009 at [4].
To whom it may concern,
My name is Michele Wachla and I am a Counsellor/Social Worker at the Whyalla Counselling Service (WCS) currently undertaking the role as Ms Helen Rennie’s counsellor. I am writing by request, a summary letter regarding the therapeutic counselling appointments being attended by Helen.
Helen referred herself to WCS seeking counselling for various reasons concerning her emotional status and her past experiences. Helen is a survivor of childhood sexual abuse, the perpetrator being an immediate family member and numerous incidents were occurring until the approximate age of 12. Helen has by no means received support or assistance for the encountered effects of being a survivor until attending the WCS counselling appointments.
Helen’s first appointment was on the 7th of December 2004. Since this date Helen was attending weekly appointments, and began undertaking fortnightly appointments in April 2005.
Recently Helen resumed her weekly appointments because or becoming distressed after attaining information about Victims of Crime rights and options as well as receiving a copy of her victim’s statement, which was made at an approximate age of 12 and not seen or read since that age. To date Helen has attended twenty four (24) regular one-hour appointments.
The reason why Helen has been attending counselling is to address areas of concern as identified by herself within the counselling sessions.
> Low self esteem
> High levels of anxiety, concerning her children’s safety
> Sexual/intimate relationships under stress
> Parenting difficulties
> Suicidal ideation and self-harm tendencies
> Substance abuse
> Imbalance of emotions
> Depression
> Lack of motivation
> Unrealistic life expectations
> PTSD symptoms
Helen has been able to work through some of the above issues, however, still experiences difficulties in some areas including being able to identify positives within her life.
The intervention process is aimed at enabling Helen to achieve a sense of self worth and respect in order to improve her ability to effectively problem solve and utilise personal strengths.
With the support from WCS I am able to continue the therapeutic counselling appointments with Helen on a fortnightly basis for as long as either I as a counsellor believe all intervention and progress has completed, or for as long as Helen continues to adopt responsibility in attending her schedules appointments physically, mentally and actively.
I assure the aforementioned information will assist in making the required assessments on Helen, if you require any further information please do not hesitate to contact me during standard business hours on (08) 8649 3666.
Yours sincerely
(Signed Michele Wachla)
There is no dispute that the letters “PTSD” that I have underlined above are an abbreviation for Post Traumatic Stress Disorder. In cross-examination Mr Algie, counsel for the defendant, put to the plaintiff that it could be inferred from the report that she must have told Ms Wachla that she suffered from symptoms of Post Traumatic Stress Disorder. The plaintiff said that she had read about Post Traumatic Stress Disorder while studying to become a counsellor but denied that she attributed her symptoms to that condition. On the plaintiff’s account, she merely gave Ms Wachla a description of the symptoms she had been experiencing and that the counsellor must have concluded that those symptoms were consistent with Post Traumatic Stress Disorder.[6] I accept the plaintiff’s evidence on this topic.
[6] T 28, 30, 34-35.
On 17 August 2005 the plaintiff, pursuant to advice from her solicitors, obtained a referral from her general practitioner to see Dr Jha, a visiting psychiatrist, at the Whyalla Hospital. The plaintiff attended three clinical interviews with Dr Jha on 17 October 2005, 7 November 2005 and 9 January 2006.
On 16 January 2006 Dr Jha prepared a report of his findings (Exhibit P2) which he posted to the plaintiff’s solicitors. The plaintiff testified that she was shown the report by her solicitors after they had received it.[7] No evidence was presented as to the date upon which her solicitors received the report though it must have been after 16 January 2006. I accept the plaintiff’s evidence that she had not seen the report before it was shown to her by her solicitors and that Dr Jha had not previously discussed his findings and opinions with her.[8] Her evidence on this topic was corroborated by Dr Jha.[9]
[7] The plaintiff’s evidence as to when she first saw the report is ambiguous. In examination-in-chief she erroneously said that her last appointment with Dr Jha was in March 2006. She added that she was shown his report by her solicitors later that same month. There is no dispute that the plaintiff had her last appointment with Dr Jha on 9 January 2006. If she saw the report in the same month then that suggests she saw the report in January 2006. In cross-examination the plaintiff was asked whether she saw the report shortly after it was prepared. The plaintiff replied: 'I’m not sure on the date it was prepared, written, I just got a telephone call from my lawyers to say that they had received a report from Dr Jha'. No other evidence was presented on this topic.
[8] T 19-22.
[9] T 67-68.
The report states:
Re: Helen Kaye Rennie DOB 10/4/73
Please refer to your letter reference JB: LB 50053 dated 15th Nov 2005 asking for a report on the above. I have received the medical authority signed by your client, a copy of statement of Helen Kaye Rennie given by her on 10th day of August 1985 (when she was 12 years old and a student of year 7 at the Fisk Street Primary School, Whyalla) and a letter from her counsellor, Ms Michele Wachla.
Helen Kaye Rennie was referred to me by her GP Dr William Kwaw, shop 12, ABC Village, Jenkins Avenue, Whyalla Norrie, SA 5608 on 17/8/05 and subsequently on 7/11/05 & 9/1/06.
My report is based on the information received by Helen during the clinical interviews in the background of information received from her statement and the report of her counsellor. The replies to your questions are given below.
a)Helen told me that she was sexually abused by her father from age 4 to 12. She has given vivid descriptions of the two incidents in her statement:
1. She was raped by her father in 1983, 3 months after she turned 10.
2. Another incident of Fellatio (oral sex) by her father in 1984 after she turned 11.
The incidents of sexual abuse was (sic) reported by Helen to the police. Her father was convicted and given 4 years of jail sentence but he was released on parole after 18 months for good behaviour. Helen was somehow coping with her painful memory of sexual abuse till she joined the counselling course in January 2004 for 6 months when she developed more insight in to her problems and also became aware of her rights of victims of crimes compensation. She went through her own counselling for 12 months. She had about 24 regular 1-hour counselling sessions with Michele Walcha, (sic) counsellor/social worker at the Whyalla Counselling Services, which finished in Oct 2005. She got great relief after unloading her grief during counselling sessions.
b)Helen believes that she has suffered in many ways because of the sexual abuse. She has got vivid memories of these incidents. She gets flash backs and feels as if things have happened yesterday. She gets visual and olfactory hallucinatory experiences. She visualises her father standing before her, can experience his body odour & smell & taste of semen. She experienced parental difficulty and went through (sic) parenting course. She was not able to continue her studies at school and had to leave her studies. She always remains worried about her own & children’s safety. On occasions when she sees her father on the road, she gets very panicky and experiences butterfly sensation in the stomach. She experiences emotions of anger, hate, shame & guilt. She has emotions of aggression and hostility against her father. She wants to kill him. She has to control her homicidal impulses for the sake of her children. She has low self-esteem. It has affected her sex life tremendously. She does not trust people specially, males. She suffers from anxiety and panic attacks and in order to calm herself down she smokes marijuana. She was a jovial, outgoing, sociable girl going to nightclubs. She hardly gets out of the house now. She is showing some features of Post Traumatic Stress Disorder with marked changes in her personality.
c)The symptoms appear to be quite consistent with the sexual trauma, she experienced in childhood. Although her symptoms were not manifest for many years and she was able to suppress them but they were always there in her subconscious mind. The symptoms came with a bang when she went through counselling courses.
d)It is most likely that your client will be left with some residual disability of a permanent nature. It is possible that with counselling & psychiatric treatment the intensity of her symptoms will be reduced and she will learn some coping skills to deal with her problems but she is likely to be tormented by the painful memories of sexual abuse specially so when she will have confrontation with her father, who is also living in Whyalla. Such encounters are likely to trigger her past memories.
I hope this report will be of some help to you. In case you require any clarification about the report you are most welcome to contact me.
Yours sincerely
(signed B K Jha)
On 9 May 2006, the plaintiff issued proceedings in this Court (Action No 201 of 2006) against the State of South Australia, as first defendant, and her father as second defendant, seeking compensation under the CICA, for injuries suffered as a result of the offences of unlawful sexual intercourse to which the defendant had pleaded guilty. In cross-examination the plaintiff said that she also wanted to institute a claim for common law damages, but her solicitor advised her to proceed first with the criminal injuries claim.[10]
[10] T 38.
On 28 July 2006 the Court made the following orders in relation to the plaintiff’s criminal injuries compensation claim: [11]
[11] Exhibit D3.
BY CONSENT THE COURT ORDERS pursuant to Rule 40.01 of the Criminal Injuries Compensation Division Rules that:
1.The Crown in the right of the State of South Australia pay to the Plaintiff the sum of $10,000 by way of compensation for the injury suffered by the said Plaintiff.
2.The Crown pays to the plaintiff the further sums of $742.50 for costs and $462.00 for disbursements.
AND the following statement is endorsed hereon pursuant to Section 7(11) of the abovementioned Act:-
a. That from the evidence before the Court the means of the second Defendant are not able to be ascertained.
b. The plaintiff has received the sum of $330.00 by way of interim payment against disbursements, which is to be deducted from the award.
In the course of the trial I was informed by Mr Algie that the defendant subsequently paid the compensation and costs awarded by the court. This was not disputed by the plaintiff. I assume that, in accordance with the scheme set up under the CICA, the compensation awarded to the plaintiff was paid by the State of South Australia and recovered from the defendant pursuant to s 11A of the CICA.
On 16 January 2007 the plaintiff took out a summons and filed a statement of claim (“the original claim”) in which she sought damages for two “indecent assaults”, particularised as one act of vaginal sexual intercourse and one act of oral sexual intercourse, perpetrated against her by the plaintiff between 1 September 1984 and 1 January 1985 (“the incident dates”). The claim asserted that the sexual acts were committed without her consent.
Although the incident dates do not correspond with the dates of the offences of unlawful sexual intercourse specified in the Information upon which the defendant entered his guilty pleas, there is no dispute that the original claim related to those offences. Hereinafter, I will refer to the acts of sexual intercourse that were the subject of the original claim as the “admitted sexual acts”. The original claim also pleaded for an extension of time pursuant to s 48 of the LAA.
On 27 September 2007 and 28 March 2008 the plaintiff obtained extensions of time to serve the defendant with the proceedings. The defendant was served on 28 March 2008 and filed a defence on 30 April 2008 wherein he admitted the sexual acts alleged in the original claim, but denied that the acts were committed without her consent and had resulted in the plaintiff suffering injuries, loss and damage. The defence pleaded, as a preliminary issue, that by reason of the plaintiff having received criminal injuries compensation the present proceedings were “duplicitous and/or constitute an abuse of process” and ought to be permanently stayed.
On 5 June 2008 the plaintiff filed an amended statement of claim (“the amended claim”) seeking damages for the admitted sexual acts and for an additional 39 sexual acts described as “indecent assaults”. The defendant has never admitted these further alleged sexual acts. I will hereinafter refer to them as the “alleged sexual acts”.[12] The particulars of the amended claim assert that the alleged sexual acts occurred on 39 separate occasions between 1 August 1977 and 30 April 1984 when the plaintiff was aged between four and 11 years. On the trial the plaintiff testified that the alleged sexual acts were representative of the “hundreds” of occasions when the defendant sexually abused her.
[12] The pleadings do not describe the factual nature of the alleged sexual acts and the plaintiff gave only limited evidence on that topic. In the course of cross-examination she suggested that the first of the alleged sexual acts may have involved some form of anal penetration of her. She was not called upon to describe any of the other alleged sexual acts.
The amended claim, as did the original claim, pleaded for an extension of time under s 48 of the LAA on the following grounds:[13]
[13] Paragraph 6 in the original claim pleaded for an extension of time in the same terms except that in each of sub-paragraphs 6 (d)(i) and (ii) the sexual acts were alleged to have occurred when the plaintiff was aged between 10 and 11 years.
6.Insofar as is necessary the plaintiff seeks an extension of time to bring the within proceedings pursuant to Section 48 of the Limitation of Actions Act and relies on the following material facts:
(a) The plaintiff was a minor at the time of the said incidents and as such had no true understanding of the nature of the behaviour of the defendant.
(b) Following the said incidents the plaintiff attempted to forget and ignore these events.
(c) The defendant was criminally prosecuted and pleaded guilty to two counts of unlawful sexual intercourse and was convicted of same on the 25th of November 1985 at which time the plaintiff was 11 years of age.
(d) The plaintiff was assessed by a psychiatrist Dr B Jha who provided a report dated the 16th of January 2006. Dr Jha held the view that the plaintiff’s emotional problems stem from the sexual abuse at the hands of her father. Dr Jha stated in the report that the plaintiff’s symptoms appear to be consistent with the sexual trauma and that they did not manifest for many years as she was able to suppress them. The plaintiff received a report on or shortly after the 18th of January 2006. Prior to that time the plaintiff did not know that Dr Jha was of the opinion that:
(i)The plaintiff’s experience of significant sexual abuse when aged between 4 and 11 years by the defendant was a significant factor in influencing the plaintiff’s development.
(ii)There is good evidence to support the hypothesis that the cause of the plaintiff’s emotional problems stem from the plaintiff’s sexual abuse when aged between 4 and 11 years.
(iii)That the sexual abuse had left the plaintiff low in self-esteem and confidence.
(iv) The plaintiff satisfied the diagnostic criteria associated with:
(A) Post traumatic stress disorder;
(B) Personality disorder;
(v)The plaintiff has had limited emotional resources and tendency to cope extremely poorly under any stress.
…
(e) The within proceedings are instituted within 12 months of the material facts referred to in paragraph d herein coming to the knowledge of the plaintiff.
It is clear that paras 6(a)-(c) are merely preamble. Paragraph 6(d) purports to set out facts material to the plaintiff’s case, but erroneously attributes to Dr Jha various opinions (italicised above) that are not in his report. The opinions expressed in his report were in fact:[14]
(i)That the plaintiff was “showing some features of Post Traumatic Stress Disorder with marked changes in her personality”;
(ii)That the plaintiff’s “symptoms appear to be quite consistent with sexual trauma, she experienced in childhood”;
(iii)That “her symptoms were not manifest for many years and she was able to suppress them”;
(iv)That “it is most likely that [the plaintiff] will be left with some residual disability of a permanent nature”;
(v)That “it is possible that with counselling & psychiatric treatment the intensity of her symptoms will be reduced … but she is likely to be tormented by the painful memories of sexual abuse …”.
[14] Dr Jha did not depart from or elaborate on those opinions in his evidence at trial.
I note that only the first and third of Dr Jha’s opinions have been specifically pleaded in para 6(d).
Application to further amend claim
The trial was conducted on 20 and 21 May 2009. As I have said, the plaintiff and Dr Jha gave evidence. The defendant did not. In the course of the trial the plaintiff was granted leave to amend the incident dates in the amended claim relating to the admitted sexual acts, so that they corresponded with the dates of the offences of unlawful sexual intercourse to which the defendant had pleaded guilty in 1985.
In the course of his closing submissions, Mr Algie argued, inter alia, that the plaintiff had failed to prove the facts said to be material to the plaintiff’s case, as particularised in para 6(d), because Dr Jha had never expressed, as earlier noted, a number of the opinions attributed to him. In his reply Mr Quinn, counsel for the plaintiff, stated that the plaintiff would consider making an application to amend paragraph 6(d) so that it accurately set out Dr Jha’s opinions. However, no formal application was made and I reserved judgment following the completion of counsel’s closing submissions.
On 12 June 2009, the plaintiff lodged an application for leave to file a further amended claim containing a new para 6(d) (set out below) that accurately summarised Dr Jha’s opinions:
(d)The plaintiff was assessed by a psychiatrist Dr B Jha who provided a report dated 16th of January 2006. The plaintiff received the report after 17th of January 2006. Prior to that time the plaintiff did not know that Dr Jha was of the opinion that:
(i) the plaintiff showed some features of Post Traumatic Stress Disorder with marked changes in her personality;
(ii) the plaintiff’s symptoms appeared to be consistent with the sexual trauma she experienced in childhood;
(iii) although her symptoms were not manifest for many years and she was able to suppress them, those symptoms were always present in her subconscious;
(iv) the plaintiff would be left with some residual disability of a permanent nature;
(v) the plaintiff is likely to be tormented by the painful memories of sexual abuse, particularly upon any contact with the defendant.
(e)The within proceedings are instituted within 12 months of the material facts referred to in paragraph d herein coming to the knowledge of the plaintiff.
The application was supported by the affidavit of Penelope Charlesworth, the plaintiff’s solicitor, sworn on 12 June 2009 which relevantly states:
14 On 21 May 2009, Counsel for the defendant raised issue for the first time with paragraph 6(d) and its relationship with the terms of Dr Jha’s report. In response, Counsel for the plaintiff indicated to the Court that the plaintiff would consider applying for leave to amend paragraph 6(d) to the extent that it did not properly correspond with the terms of Dr Jha’s report.
15The defendant received Dr Jha’s report on 28 March 2008, but did not point to any defect in respect of paragraph 6(d) of the Statement of Claim and its relationship with Dr Jha’s report at any time prior to the preliminary trial.
16I had not noticed any difference between the material facts and Dr Jha’s report. I had assumed that the matter had been properly pleaded from the outset and did not turn my mind to the terms of paragraph 6(d) and its relationship with Dr Jha’s report. The defendant had not through his defence or otherwise directed attention to the issue at any time. I was not aware of any difference between paragraph 6(d) and Dr Jha’s report until that issue arose during defence Counsel’s address at the preliminary trial.
17Immediately after the hearing, on Counsel’s advice, I then prepared in draft a Further Amended Statement of Claim addressing the issues raised by the defendant’s Counsel at the preliminary trial. Exhibited hereto and marked with the letters “PRC 2” is a copy of the proposed Further Amended Statement of Claim (FASC).
18The amendments sought to be made to paragraph 6(d) of the Amended Statement of Claim are directed at having the material facts there pleaded in respect of Dr Jha’s report better correspond with the terms of that report.
The application to further amend, and its relevance to the application for extension of time, came on for argument on 29 July 2009. Mr Algie opposed the application to further amend, contending that it would be unfair to allow the plaintiff to recast her pleadings after the evidence had been presented. Mr Algie submitted that he did not cross-examine Dr Jha with respect to the matters set out in the proposed amendment, because he did not consider them to be germane to the original application. I reserved my ruling which I now proceed to give.
I agree with Mr Quinn’s submission that the proposed amendment does not raise any matter unknown to the defendant and involves correcting drafting errors by the plaintiff’s solicitor. I do not accept that the defendant would be unfairly disadvantaged if I granted leave to amend. Defence counsel was aware from before the commencement of the trial that the application for an extension of time was based on the existence and contents of Dr Jha’s report.[15] It would be unfair to bind the plaintiff to a pleading which the defendant’s counsel obviously appreciated inaccurately set out Dr Jha’s opinions. The remarks of Jacobs J in State of South Australia v Streeter[16] are apposite:
That might well involve an unfair denial of justice to the [plaintiff] based on no more than a pleading defect, which the law ought not tolerate.
[15] See, eg, Defence counsel’s opening remarks: T 9.
[16] (1989) 154 LSJS 107.
In the circumstances the application for leave to amend paragraph 6(d) is granted.
In any event, as I earlier observed, the impugned pleading at least accurately states that Dr Jha reported “that the plaintiff’s symptoms appear to be consistent with the sexual trauma and that they did not manifest for many years as she was able to suppress them”. The defendant was aware that the plaintiff relied, at least in part, upon that opinion and conducted his case accordingly. Indeed, Mr Algie cross-examined Dr Jha as to whether the plaintiff’s alleged symptoms were necessarily the product of sexual abuse.[17] For reasons which I will canvass later, I am satisfied that Dr Jha’s opinion, on that topic alone, constitutes a fact material to the plaintiff’s case. Thus even if I had acceded to Mr Algie’s argument, and required the plaintiff to be bound by the impugned pleading, I would still have found on the basis that the plaintiff had ascertained a fact material to her case, namely the accurate opinion of Dr Jha.
EXTENSION OF TIME ISSUE
[17] T 71-75.
The applicable law
Section 36(1) of the LAA provides that an action for personal injuries “shall be commenced within three years after the cause of action accrued but not after”. The plaintiff, however, was a child at the time of the relevant events and, by force of s 45(1), had three years from the time of attaining her majority (10 April 1991) to institute an action against the defendant. In other words, her right to bring an action became statute-barred on 10 April 1994 when she turned 21. Accordingly the original claim which was instituted on 16 January 2007 was out of time by almost 12 years and nine months.
Section 48(1) of the LAA empowers the court to extend a period of limitation prescribed by the Act “to such an extent, and upon such terms (if any) as the justice of the case may require”. The discretionary power, however, cannot be exercised unless the threshold requirements of s 48(3) are satisfied. Section 48(3), (3a) and (3b) relevantly states:
(3) This section does not-
…
(b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied-
(i)that facts material to the plaintiff’s case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
…
and that in all the circumstances of the case it is just to grant the extension of time.
(3a)A fact is not to be regarded as material to the plaintiff’s case for the purposes of subsection (3)(b)(i) unless-
(a) it forms an essential element of the plaintiff’s cause of action; or
(b) it would have a major significance on an assessment of the plaintiff’s loss.
Example –
In a case involving personal injury, a fact might qualify as a fact material to the plaintiff’s case if it establishes –
(a) a substantial reduction of the plaintiff’s capacity to work; or
(b) that the plaintiff will require substantially more medical care than previously expected; or
(c) a significant loss of life expectation.
(3b)In determining whether it is, in all the circumstances of a case, just to grant an extension of time, the court should have regard to-
(a) the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial; and
(b) the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums; and
(c) the nature and extent of the plaintiff’s loss and the conduct of the parties generally; and
(d) any other relevant factor.
…
(italics are mine and identify the applicable parts of the provision)
Counsels’ arguments
Mr Quinn, for the plaintiff submitted that the discretion to extend time had been enlivened because facts material to the plaintiff’s case, namely, the existence and contents of Dr Jha’s report, were not ascertained by the plaintiff until some time after 16 January 2006 when the report was prepared and posted to her solicitors. Because the proceedings were instituted less than 12 months later on 16 January 2007, the threshold requirements of s 48(3)(b)(i) had been satisfied. Mr Quinn further submitted that in all of the circumstances of the case it would be just to grant the extension of time.
Mr Algie did not dispute that the report of Dr Jha and its contents had been ascertained by the plaintiff after the expiration period and within 12 months of the commencement of proceedings. However, he submitted that the discretion to extend time had not been enlivened because (1) the opinions pleaded by the plaintiff in para 6(d), as being material to the plaintiff’s case, had not been proved by the tender of Dr Jha’s report or his oral testimony and (2) the report and its contents did not, in any event, constitute material facts for the purposes of s 48. (The first of those arguments has, of course, fallen away by reason of the amendment to para 6(d) that I have permitted.) In the alternative, Mr Algie submitted that the residual discretion should not be exercised in the plaintiff’s favour.
An issue not raised by counsel
The admitted sexual acts were first alleged in the original claim filed on 16 January 2007 and the alleged sexual acts were first alleged in the amended claim filed on 5 June 2008. However, the arguments presented by counsel appear to have proceeded on the assumption that the commencement of proceedings relating to the alleged sexual acts can be related back to 16 January 2007, when the original claim was filed. No consideration was given to the question of whether the plaintiff was unable to satisfy the threshold requirements of s 48(3)(b)(i) in relation to the alleged sexual acts because the proceedings relating to them were instituted more than 12 months (almost two years and five months) after the plaintiff ascertained Dr Jha’s report. In my view, for the reasons which follow, those circumstances are fatal to the plaintiff’s application for an extension of time in relation to the alleged sexual acts.
Pursuant to s 36(1) of the LAA an action for damages in respect of personal injuries must be commenced within three years after the cause of action accrued. The LAA defines the word “action” to include “legal proceedings of all kinds” but fails to define the expression “cause of action”.[18] The expression, however, has been judicially defined as constituting “every fact which it would be necessary for the plaintiff to prove, if traversed, his right to a judgment of the Court”,[19] or putting it another way, as constituting “the essential ingredients in the title to the right which it is proposed to enforce”.[20]
[18] Limitation of Actions Act 1936 (SA) s 3(1).
[19] Read v Brown (1888) 22 QBD 128, 131 (Lord Esher MR).
[20] Williams v Milotin (1957) 97 CLR 465, 474; see also, Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159, [31][56][68][73].
In the present case each of the admitted and alleged sexual acts constitutes a species of the tort of trespass to the person, namely, battery. The wrong of battery involves an intentional touching or contact in one form or another of the plaintiff by the defendant without the plaintiff’s consent.[21] Such a tort is actionable per se without proof of damage. So the cause of action accrues at the time of the commission of the wrong.[22]
[21] Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, Lord Goff of Chieveley; Boughey v R (1986) 161 CLR 10, 25.
[22] See Williams v Milotin (1957) 97 CLR 465, 474; Dawson v Commonwealth (1994) 12 WAR 29, 30; Battiato v Lagana [1992] 2Qd R 234, 235.
In the present case, each of the sexual acts gave rise to a separate cause of action upon the defendant touching the plaintiff without her consent. The admitted and alleged sexual acts must, therefore, be treated as separate causes of action for the purposes of the LAA. To my mind, it follows that the actions relating to the alleged sexual acts commenced on 5 June 2008 when the amended claim was filed and not on 16 January 2007 when the original claim was filed.
The plaintiff’s evidence as to when she first ascertained the report of Dr Jha is somewhat ambiguous as previously noted. However, the evidence suggests that she must have seen the report shortly after her solicitors saw it in January 2006. In any event, it is perfectly clear that she would have seen the report before 16 January 2007 when the original claim was filed. It follows that the actions for the additional sexual acts were not instituted within 12 months of the plaintiff’s ascertainment of Dr Jha’s report and the plaintiff has failed to satisfy the requirements of s 43(3)(b)(i) that would qualify her for an extension of time in relation to the alleged sexual acts.
In reaching that conclusion I have considered whether the commencement of those actions can be related back to 16 January 2007 under Rule 54, which relevantly states:
(1) A party may amend a document filed by the party.
…(6) However, an amendment cannot be made without the Court’s permission or the consent of the other parties if the effect of the amendment is-
(a) …
(b) to add or substitute a cause of action that is statute barred; or
(c) ...(7) The Court’s power to grant permission for an amendment under subrule (6) is subject to the following qualifications-
(a)the Court may only grant permission for the addition or substitution of a cause of action that is statute barred if the new cause of action arises out of substantially the same facts as the original cause of action;
(b)…
Rule 54(7) operates independently of s 48 of the LAA and may be used to plead a new cause of action which would otherwise be statute barred. In Brook v Flinders University of South Australia[23] von Doussa J had occasion to consider the interaction between s 48 and r 53.03 (the present rule’s predecessor). His Honour said:[24]
In my opinion, r 53.03 operates as a power to relieve against a time bar which is quite distinct from the power in s48. Subject, to subs (3), s48(1) empowers the court in the exercise of its discretion to extend the time prescribed or limited for the institution of an action. The effect of an order made under s48 (1) is to extend in the particular case the relevant limitation period. In its application to statute–barred claims, s48 primarily addresses the predicament of a plaintiff who has not instituted proceedings before the claim became statute barred (see subs (4)), although it is clear that s48 may also be invoked to extend time in respect of a new cause of action which is to be added to an existing action: Crafter v Webster (supra).
On the other hand, r 53.03 is primarily intended to provide for a different situation. By its terms, it provides for cases where proceedings have been issued, and in their original form were issued within time, but the period of limitation has since expired. If an amendment sought under r 53.03 is granted, the rule contemplates that the amendment will relate back to the date on which the proceedings were first instituted (unless the court otherwise orders as a term imposed on the grant of leave). The newly named party, the new capacity in which a party brings or opposes the proceeding, or the new cause of action, introduced by the amendment will operate as if originally included in the proceedings when first instituted. The defendant is thereby deprived of the limitation defence which would have been open if the plaintiff had been required to issue fresh proceedings. Whether the ‘relation back’ theory is the correct legal basis or justification for the rule of practice in Weldon v Neal (supra) is open to considerable doubt: see Liff v Peasley [1980] 1 WLR 781; 1 All ER 623, but the analogues of r 53.03, and r 53.03 itself, clearly seem to assume that the ‘relation back’ theory is the true basis of the rule of practice which the rule is intended to modify: see Liff v Peasley, per Brandon LJ (at 803; 642).
The scheme of s 48 is to extend time for the institution of proceedings. The scheme of r 53.03 is to relate a new cause of action added to an existing action back to an earlier point of time which is within the limitation period. As the two schemes approach a perceived mischief in the law adjective in ways that are directly opposed, difficulty can be anticipated in any application or order which seeks to invoke both powers at the same time. This leads me to observe that it is desirable to recognise the distinct nature of these powers, and as far as possible in their application, to avoid any attempt to combine them.
[23] (1988) 47 SASR 119.
[24] Ibid, 122.
So, in an appropriate case, where a plaintiff has already instituted proceedings and wishes to add a new cause of action that is statute barred, r 54.7 may be invoked to relate the commencement of that cause of action back to a point in time within the limitation period, or which qualifies the plaintiff for an extension of time.[25]
[25] See also Danae Investment Trust plc v MacIntoshNominees Pty Ltd (1993) 61 SASR 341.
The records of the court reveal that the plaintiff has made no application for permission to bring the additional causes of action relating to the alleged sexual acts. In any event, it cannot be said that the new causes of action “arose out of substantially the same facts as the original causes of action” because on the plaintiff’s case, each of the alleged sexual acts is alleged to have occurred on a different occasion to each of the admitted sexual acts, separated in time by months and, in most cases, years. In those circumstances r 54.7 cannot be invoked.
The decision of Cox J in Swietlik v Central Linen Service[26] supports the conclusion which I have reached. In that case the plaintiff brought an action against his employer seeking damages for wrenching his back while lifting a heavy object at work. He contended that his employer had failed to provide a safe system of work. The plaintiff later sought to invoke r 53.03 for the purpose of adding a new cause of action that was statute barred. The new cause of action was based on a claim that the plaintiff had suffered a further back injury in similar circumstances. An appeal against a decision by a Master to allow the plaintiff to add the new cause of action was upheld by Cox J on the basis that despite their factual similarities, the two actions were founded on different happenings that occurred at different points in time.
[26] (1991) 56 SASR 569, 572-573.
After acknowledging that there may be borderline cases where there is room for disagreement Cox J said:
I suppose as clear a case as any of an adequate overlap, and no significant difference in any relevant respects between the two causes of action, is the decision of von Doussa J in Varcarella v McNicol (1986) 13 LSJS 128. Brickfield (supra) itself is another instance of a close correspondence between the two sets of facts alleged, but with the emphasis upon a different aspect of them in order to provide a second cause of action.
Another example would be that of a professional negligence cause against a solicitor. The first claim, let it be supposed, asserts the relationship between the plaintiff client and the defendant solicitor and goes on to allege circumstances which demonstrate a breach of duty in negligence against the defendant. Later, the plaintiff decides that it would be advisable to add a claim in contract as well. That would be a clear instance, at least on one view of what a new cause of action is under para (c), of a second claim arising out of the same or substantially the same facts as the first.
Karasaridis and a matter that I had to consider earlier this year, Trepic v ROH Industries Pty Ltd (unreported, Supreme Court, No 2890/91, 5 June 1991), are cases of a slightly different kind. In each of them the plaintiff originally selected a particular occasion for his cause of action, and then sought to expand the relevant period and circumstances in later asserting a second cause of action. There was much in common between the circumstances alleged in each instance. The main difference was with respect to the time factor in Karasaridis, and in the recent case with respect to both time and another, albeit different, alleged wrongful action on the part of the defendant that had the effect of exacerbating the situation.
At the other end of the spectrum, however, would be the case of a mere repetition of a breach of duty by one person against another with little or nothing else in common between the two incidents. If, for instance, a customer of a supermarket were to slip on the supermarket floor, and allege that the proprietor was negligent in failing to keep the floor clear of some hazardous article, I should think it very doubtful whether, without more (and that phrase important), the plaintiff could get leave to amend under r 53.03 by adding a claim that alleged another incident in the same supermarket 12 months earlier, say, when he slipped on some different article in a different part of the store, even though in a general sense the occupier’s duty of care to the customer was the same on each occasion. More would be needed than the coincidence of a second accident similar to the first. The new cause of action has to arise out of the same or substantially the same facts, and that is not the same as simply being a similar, even identical, happening to the first.
And that, I think, is the difficulty that faces the plaintiff in this case. His proposed amendment speaks of an “aggravation” of the original injury, but he is really setting up a fresh accident or incident that occurred, apparently, in a different section of the factory and under somewhat different unloading conditions from the first. The two causes of action have this in common, that both allege that the plaintiff was injured by being required to lift or otherwise manhandle laundry bags in circumstances that indicate a failure by the defendant to have proper regard for the plaintiff’s safety. The particulars given of the defendant’s breach of duty or breach of contract are, in many respects, much the same in each case. However, the second incident was a different happening on a different occasion from the first, and seems to rest upon a fundamentally different set of facts, notwithstanding that the master and servant were the same in each case and that there was a degree of similarity between the two incidents.
In my view the decision in Swietlik supports the view that I have reached here, namely, that because each of the alleged sexual acts and each of the admitted sexual acts involved different happenings on different occasions, the various causes of action cannot be said to have arisen out of substantially the same facts. That would be so even if the circumstances and nature of the sexual acts were very similar.
In the circumstances, r 54.7 and the principle of relation back cannot be invoked to assist the plaintiff. Accordingly, her application for an extension of time in relation to the alleged sexual acts must therefore fail.
The remaining causes of action
I turn then to the question of whether the plaintiff qualifies for an extension of time in relation to the two admitted sexual acts. The answer, of course, hinges on whether the existence and contents of Dr Jha’s report constitute facts material to her case in relation to those actions.
The meaning of “facts material to the plaintiff’s case”
Before the enactment of sub-s(3a) of s 48 the meaning of the expression was determined by judicial interpretation. In Lovett v Le Gall[27] the Full Court held that in order to satisfy the test the new facts must be of “such significance as to be able to influence the determination of the case”. However, the facts did not have to be decisive of the plaintiff’s decision to prosecute or proceed with the claim.
[27] (1975) 10 SASR 479, 483.
This definition was approved by the High Court in Sola Optical Australia Pty Ltd v Mills.[28] The court said:[29]
There is no warrant for writing into the Act a further qualification that, to attract the operation of s 48(3)(b)(i), there must be some interaction between the material fact and the plaintiff’s decision to sue. This is a broad general requirement that is capable of satisfaction by objective inquiry. To introduce notions, related to the decision to sue, that would require an examination of the subjective workings of the plaintiff’s mind would complicate the court’s task and impede rather than advance the purpose of the Act. A fact is material to the plaintiff’s case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to bring the action and is of sufficient importance to be likely to have a material bearing on the case. The Shorter Oxford English Dictionary defines the word “material”, inter alia, to mean “Of such significance as to be likely to influence the determination of a cause”.
[28] (1987) 163 CLR 628.
[29] Ibid, 636-637.
So materiality was established if the facts relied upon were shown by objective inquiry to have sufficient importance as to be likely to have a bearing on the case. Furthermore, the expression “facts material to the plaintiff’s case” encompassed the whole complex of evidence, law and argument to be advanced at the trial on the plaintiff’s behalf.[30]
[30] Lovett v Le Gall (1975) 10 SASR 479, 482 (Bray CJ), 485-486 (Wells J); Fersch v Power Water Authority (1990) 101 FLR 78, 82-83 (Asche CJ).
That test of materiality was not a difficult one to satisfy. The ease with which it could be satisfied prompted Cox J to say in Wright v Donatelli:[31]
Everyone now understands that the test for an ascertained material fact under s48 is extremely modest, even some would say to the point of absurdity. The solicitor must be bereft of all ingenuity and imagination who cannot practically in every case discover, or even create, some material fact that his out-of-time client can then ascertain within the limitation period in order to meet the first requirement of the statutory provision.
[31] (1995) 65 SASR 307, 310.
In Sola Optical the High Court acknowledged the modest nature of the test but considered that “the breadth of the residual discretion vested in the court provides an ample safeguard against abuse and provides that flexibility which will facilitate the achievement of the legislative purpose, namely a just result in a wide range of circumstances”. Similarly, in Finlay v Silcon Industrial Pty Ltd[32] Doyle CJ (with whom the other members of the Full Court agreed) observed that the “liberal approach to the meaning of s 48(3)(b)(i) … makes the exercise of the discretion all the more important”.
[32] (2003) 229 LSJS 14, [73].
The enactment of sub-s (3a) has rendered it more difficult for a plaintiff to obtain an extension of time on grounds of materiality. The sub section provides that a fact is not to be regarded as material to the plaintiff’s case unless “it forms an essential element of the plaintiff’s cause of action or would have a major significance on an assessment of the plaintiff’s loss”.
Subsections (3a) and (3b) were inserted by the Law Reform (Ipp Recommendations) Act 2004 (“the Ipp Recommendations Act”) which took effect on 1 May 2004. The Schedule to the amending legislation contains the following transitional provision:
1-Transitional Provision
(1)The amendments made by the Law Reform (Ipp Recommendations) Act 2004 (the Ipp Recommendations Act)… are intended to apply only prospectively.
(2)If a cause of action that is based wholly or partly on an event that occurred before the commencement of the Ipp Recommendations Act arises after the commencement of the Ipp Recommendations Act, it will be determined as if the amendments had not been enacted.
Example-
Suppose that A was exposed to asbestos in 1990 but a resultant illness was diagnosed until after the commencement of the Ipp Recommendations Act. An action is then brought in personal negligence in which damages are claimed for personal injury. The amendments would not affect the determination of liability or the assessment of damages.
…
Mr Algie argued that sub-s (3a) applied to the present case because cl 1 of the Transitional Provision stipulates that the amendments made by the Ipp Recommendations Act (“the Ipp amendments”) were intended to apply prospectively. Because the plaintiff’s actions were instituted after the amendments took effect on 1 May 2004, the amendments apply.
I reject this argument. In my opinion, the effect of cl 1 is that the Ipp amendments operate prospectively in relation to causes of action that arise or accrue after the amendments took effect. In other words, the Ipp amendments were not intended to apply to proceedings commenced after 1 May 2004 that related to causes of action that had arisen before that date. That was the approach taken by White J in Politarhis v Westpac Banking Corporation.[33] In my respectful opinion, that interpretation of cl 1 is correct and accords with the wording of cl 2 and its focus on “causes of action”. Indeed, it seems to me that if cl 1 was intended to apply to all actions instituted after the Ipp amendments came into force then cl 2 would be left with no work to do.
[33] (2008) 3 BFRA 360, [246]-[252]; see also Jones v Griggs [2007] SASC 394, [23] (Nyland J).
The combined effect of the two clauses in the Transitional Provision is that the amendments operate prospectively in relation to causes of action that have arisen after the date upon which the amendments took effect (cl 1) except where a cause of action is based wholly or partly on an event that occurred before the commencement of the Ipp amendments (cl 2), as illustrated by the example set out in the Transitional Provision.
As earlier observed, a cause of action in battery arises when the defendant intentionally applies force against the defendant without consent. It follows that in the present case, the relevant causes of action accrued before the Ipp amendments came into force and the issue of materiality must be determined without having regard to sub-s(3a).
Findings
I am satisfied that the existence and report of Dr Jha constitute facts material to the plaintiff’s case for the purposes of s 48. Although Dr Jha did not diagnose the plaintiff to be suffering from a psychiatric illness, his opinion (1) that the plaintiff was suffering from symptoms consistent with sexual trauma experienced as a child, (2) that she was displaying some features consistent with a Post Traumatic Stress Disorder and, (3) that she would most likely be left with some residual disability of a permanent nature, are matters of sufficient importance as to be likely to have a bearing on the plaintiff’s case, and in particular on the issue of damages.
The defendant has pleaded that before the plaintiff received Dr Jha’s report she was already aware of the matters canvassed in the report.[34] As I understand the defendant’s case this contention is based on the fact that the plaintiff was previously aware of her symptoms and, furthermore, believed, as a result of the counselling she received from Ms Wachla, that her symptoms were attributable to sexual abuse. I do not accept that those circumstances, and the fact that Dr Jha’s opinions are based on a history provided by the plaintiff, are fatal to the plaintiff’s reliance on his report.
[34] This particular argument was not pressed by Mr Algie in his closing argument.
In Sola Optical[35] the High Court had occasion to consider an analogous situation. The Court said:[36]
It was submitted that … the Court should have held that the fact found to have been ascertained by the respondent on 20 March 1985 was not a fact material to her case for the reason that [the surgeon] in his second report … was only putting a percentage on the disabilities which she had described and demonstrated to him and of which she must necessarily have been aware at the time of his second examination. But the second report was doing more than that. It was expressing a specialist medical opinion as to the effect of the disabilities upon the functional capacity of the respondent’s arm. The respondent certainly had knowledge of the physical disabilities that she suffered, but it was material to her case to learn that a medical assessment of the effect of those disabilities upon her capacity was expressed in terms of 80 per cent of loss of function. Such a fact was material to the issue of damages.
[35] (1987) 163 CLR 628.
[36] Ibid, 638.
Wright v Donatelli[37] and Forbes v Davies & Anor[38] are other decisions in which the courts have emphasised the distinction between a plaintiff’s knowledge of his or her symptoms and the plaintiff’s knowledge of a medical opinion as to what those symptoms indicate. In Wright v Donatelli, Lander J (with whom the other members of the Full Court agreed) said:[39]
True it is that Mr Cohen’s opinion is based almost entirely on what he was told by the appellant, but that is not unusual. Almost all opinions in medical reports depend to an extent upon the history given by the party, the subject of the report. Some depend more heavily on a history than others, but that depends upon the matters of which complaint is made. Whilst it may be that Mr Cohen’s opinion is in accord with the appellant’s own knowledge, that does not mean that Mr Cohen’s opinion is not a material fact. I think the learning of Mr Cohen’s opinion itself was the ascertainment of a material fact, because his opinion is evidence upon which the plaintiff would rely for the purpose of making out his case, and to that extent, it is material.
[37] (1995) 65 SASR 307.
[38] (1994) Aust.Torts Reports 81-279 (NTSC).
[39] Ibid, 321.
In the present case it was material to the plaintiff’s case to discover that a psychiatrist was of the opinion that the symptoms from which she suffered were, in fact, consistent with sexual abuse. Such an opinion, at least, negates the suggestion that the plaintiff’s symptoms were not consistent with such abuse. It is for that reason that I earlier remarked that I would have been prepared to find that Dr Jha’s report was material to the plaintiff’s case even if the plaintiff had been required to rely upon the material facts as initially pleaded in para 6(d). In any event, the report goes further. Plainly it was material to the plaintiff’s entitlement to damages and quantum that Dr Jha considered that she: (1) displayed features of a recognised mental illness (Post Traumatic Stress Disorder), (2) exhibited marked changes in her personality, and (3) was likely to suffer permanent residual disabilities.
I am satisfied that the existence and contents of Dr Jha’s report are facts material to the plaintiff’s case and that the proceedings in relation to the admitted sexual acts were instituted within 12 months of her ascertainment of those facts.
The discretion
I turn to the question of whether “in all the circumstances it would be just to grant the extension”.
Relevant principles
It is well established that the discretion to extend time, though informed by the policy of the legislation, is not fettered by any absolute or inflexible rules.[40] The relevant policy was explained in Brisbane South Regional Health Authority v Taylor[41] by Mc Hugh J:
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties …
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But is it not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them …
…
Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
(Footnotes omitted)
[40] Ulowski v Miller [1968] SASR 277, 280 (Bray CJ); Trevorrow v South Australia (No 5) (2007) 98 SASR 136, [924] (Gray J).
[41] (1996) 186 CLR 541.
In Ulowski v Miller[42] Bray CJ identified “five paramount matters” to be considered in the exercise of the discretion, namely, (1) the length of the delay, (2) the explanation for the delay, (3) the hardship to the plaintiff if the action is dismissed and the cause of the action left statute barred, (4) the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and (5) the conduct of the defendant in the litigation.
[42] [1968] SASR 277.
In Lovett v Le Gall[43] the trial judge White DCJ, whose judgment was affirmed by the Full Court, considered that the conduct of the plaintiff and the nature, importance and circumstances surrounding the ascertainment of the new additional facts could be added to Bray CJ’s list. In Trevorrow v South Australia (No 5)[44] Gray J considered that an analysis of all seven factors would assist the court to ascertain whether, in the interests of justice, an application for an extension of time should be granted.[45]
[43] (1975) 10 SASR 479.
[44] (2007) 98 SASR 136, [924]-[947].
[45] See also Forbes v Davies & Anor (1994) Aust. Torts Reports 81-279.
I turn to consider each of these factors.
Consideration
Length of the delay and the explanation for it
The length of the delay in the present case is obviously substantial. The plaintiff’s causes of action accrued on 10 April 1994. By the time the plaintiff instituted proceedings on 16 January 2007, a period of almost 12 years and nine months had elapsed. Nevertheless it must be remembered that the significance of delay must be assessed in the light of the other relevant factors. It has long been recognised that the courts should guard against too ready an assumption of prejudice to a defendant from a mere lapse of time.[46]
[46] Ulowski v Miller [1968] SASR 277, 281-283; Forbes v Davies & Anor (1994) Aust.Torts Reports 81-279.
As Cox J observed in Reeves v Leyland Motor Corporation of Australia (No 2):[47]
I realize that it is almost necessarily the case that any witness as to what was said or done in 1980, the time when this cause of action arose will have greater difficulty in recalling the relevant events or conversations the longer the time elapses before he gives evidence. However, that is a feature which is common to all these cases, and it is only where the delay is a very long one, or there are some special circumstances, that lapse of time should be taken by itself to establish such an obvious prejudice that the delinquent party should be denied the right to pursue his action… Indeed, the Victorian case of 1978 [Niemann v Electronic Industries Ltd] shows that a delay of 15 years from the time when the cause of action arose will not necessarily be fatal.
[47] (1984) 115 LSJS 62.
Mr Algie stressed in his closing submissions that the plaintiff was never expressly asked in the course of her evidence to offer an explanation for the delay. However, the reasonable inference to be drawn from her evidence, which I accept, is that she never contemplated instituting proceedings against the defendant until after she realised, due to the counselling she had received from Ms Wachla, that her symptoms were attributable to sexual abuse. Unless she appreciated the existence of that causal link she could not be expected to have acted sooner.[48] Furthermore, after her solicitors received the report from Dr Jha she was advised to proceed first with the application for criminal injuries compensation and then with the claim for common law damages. In those circumstances I do not believe that the delay is fatal.
Hardship to the plaintiff
[48] See Stubbing v Webb [1992] 2 QB 197, 207 [B]-[D] (Bingham LJ).
In my opinion, the loss of the two remaining causes of action may cause significant hardship to the plaintiff. It is true that the plaintiff has received criminal injuries compensation in the amount of $10,000 for the sexual acts which are the subject of the remaining causes of action. However, it must be acknowledged that a successful claim in the present proceedings is likely to result in the plaintiff being awarded a substantially greater amount. The damages sought by the plaintiff include special damages and an award of aggravated damages by reason of her age and relationship with the defendant.
Prejudice to the defendant
In cases involving a substantial delay, the quality of the evidence and the amount of evidence available to the parties is likely to diminish.[49] Nevertheless, in the present case, I do not believe that the defendant will suffer any real prejudice on the issue of liability because he admits the sexual acts which are the subject of the remaining causes of action.
[49] See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551-552 (Mc Hugh J).
But when one turns to the issue of damages the position is different. Were I to exercise my discretion favourably to the plaintiff and the plaintiff succeeded at trial, damages would need to be assessed for the psychological difficulties allegedly suffered by the plaintiff and any impairment of her income-earning capacity should that be an issue. It is plain that evidence of the plaintiff’s pre-existing psychological condition and residual earning capacity would be relevant to an assessment of damages under those heads.
This means that it would be necessary to have regard to what would have been the plaintiff’s psychological condition had the admitted sexual acts not occurred. As Mr Algie stressed, this would require investigation of other events and factors that may have caused or contributed to the plaintiff’s problems. As he put it, the defendant would be called upon “to embark upon a process of trawling through 20-odd years of [the plaintiff’s] psychological or emotional history to then look at all of the other things that could explain the problems she claims to now be having …”. It seems to me that this process would also require a thorough investigation of the alleged sexual assaults that are time barred and the impact they may have had on the plaintiff’s psychological condition and residual loss of earning capacity.
I accept that the defendant is likely to suffer difficulty in having to deal with issues of this nature after such a long delay. However, such prejudice while an important consideration is not decisive.
Conduct of the plaintiff and the defendant
In the present case there is no evidence that the parties engaged in any conduct relevant to the exercise of the discretion such as misleading the other party into allowing the time limit to expire.[50]
The nature and importance of the new material facts and the circumstances in which they were ascertained
[50] See Forbes v Davies & Anor (1994) Aust. Torts Reports 81-279 at 61, 405.
Dr Jha’s report does not assert that the plaintiff suffers from a specific mental illness and, in that sense, the report is not as strong as many psychiatric opinions and reports placed before the courts in support of an application for an extension of time. Nevertheless, it indicates that the plaintiff is suffering from symptoms of psychological and emotional disturbance consistent with sexual abuse. They are matters, which if proven, are likely to have a material bearing on the issue of damages. I am satisfied that these facts were not acquired in “untoward or suspicious circumstances”[51] or that they are “trumped up, frivolous or artificially manufactured”.[52]
[51] Lovett v Le Gall [1975] 10 SASR 479.
[52] Ibid.
Conclusion
As I have said, I accept that the defendant is likely to experience difficulty at trial in dealing with matters relevant to the issue of damages. On the other hand, he admits that he had sexual intercourse with his daughter on the two occasions in question and the plaintiff, in my opinion will suffer hardship if she is not allowed to continue with these proceedings. There is nothing untoward about her ascertainment of the facts material to her case and I am satisfied that the proceedings delay was due to her failure to appreciate the causal link between her symptoms and the sexual abuse she had suffered. In all of the circumstances I consider that it would be just to grant an extension of time in relation to the admitted sexual acts.
THE ESTOPPEL/ABUSE OF PROCESS ISSUE
This brings me to the defendant’s contention that the proceedings should be permanently stayed by reason of the plaintiff having obtained compensation under the CICA. In essence, the defendant’s alternative submissions are as follows:
(1)that the plaintiff in the present proceedings is attempting to litigate a claim that has merged into the orders made by the court in the criminal injuries compensation proceedings and that the present proceedings are, accordingly, res judicata;
(2) that the principle of Anshun estoppel applies because the plaintiff’s claims for common law damages and criminal injuries compensation ought reasonably to have been brought in the same proceedings;
(3) that the present proceedings ought to be stayed as an abuse of process by reason of the plaintiff having obtained criminal injuries compensation.
Before turning to consider the merits of those arguments it is appropriate to consider the key features of the scheme set up under the CICA.
Criminal Injuries Compensation Act
The CICA was repealed by the Victims of Crime Act 2001 (SA) which came into operation on 1 January 2003. By virtue of the transitional provisions contained in Schedule 1 of the Victims of Crimes Act 2001 (SA), the CICA continues to apply to applications for compensation in respect of injuries arising from offences committed before 1 January 2003.
Under the CICA, the victim of a criminal offence may apply to the District Court for compensation in respect of injury arising from a criminal offence.[53] Injury is defined as physical and mental injury and includes pregnancy, mental shock and nervous shock.[54] Where the victim dies as a result of the injury arising from the offence a person may apply to the court on behalf of the dependants of the deceased for compensation in respect of the financial loss that the dependants have suffered.[55] Where a person dies as a result of a murder or manslaughter certain persons may apply for compensation for grief suffered in consequence of the death.[56]
[53] Section 7(1).
[54] Section 4.
[55] Section 7(2).
[56] Section 7(2a).
The Court is empowered to make a variety of compensation orders. In relation to a victim seeking compensation for injury arising from an offence, the Court may order that the Crown pay the victim such an amount as the court thinks fit[57] but only in respect of non financial loss,[58] namely, for (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life and, (d) disfigurement.[59] Compensation for financial loss is restricted to persons who are financially dependent on a victim who dies as a result of injury arising from the offence.[60]
[57] Section 7(7)(a).
[58] Section 7(8).
[59] Section 3.
[60] Section 7(2).
In proceedings under the CICA, any fact to be proved by the claimant is sufficiently proved if established on the balance of probabilities. But no order for compensation may be made (except by consent) unless the commission of the offence to which the act relates has been proved beyond reasonable doubt and a causal connection between the commission of the offence and the injury or death to which the applicant relates has been established on the balance of probabilities.
In awarding compensation the Court is obliged to have regard to certain “rules”.[61] In relation to an application by a victim seeking compensation for injury, the total non financial loss is calculated by assigning a numerical value on a scale running from 0–50 (with the greater the severity of the loss being represented by higher numbers) and the amount to be awarded arrived at by multiplying the number assigned by $1,000. In the result the maximum amount of compensation that can be granted to a victim for injury is $50,000. In determining the amount of compensation to be awarded to the victim one must have regard to possible disentitling factors such as conduct on the part of the victim that contributed directly or indirectly to the commission of the offence.[62]
[61] Section 7(8).
[62] Section 7(9), (9a)-(9)(c), (10).
The Crown and the offender, where the offender’s identity is known, are parties to the proceedings.[63] All orders for compensation are made against the Crown[64] and must be satisfied by the Attorney General within 28 days of the day on which the order was made unless an appeal has been instituted to the Supreme Court.[65] However, the Attorney General may decline to satisfy an order, or may reduce the payment to be made, if it appears just to do so in view of other compensation that the claimant has received or would be likely to receive in respect of the injury or loss if he or she were to exhaust all available remedies.[66]
[63] Section 7(5).
[64] Section 7(7).
[65] Section 11(1).
[66] Section 11(2).
Where the Attorney General makes payment to a claimant, the Attorney General is subrogated, to the extent of the payment, to the rights of the claimant as against the offender for the injury in respect of which the payment was made.[67] The Attorney General may recover, as a debt, from the offender who has been convicted of an offence the amount paid to the claimant by way of compensation.[68]
[67] Section 11A(1).
[68] Section 11A(4).
Section 14 provides for the interaction between the CICA and other laws. The section relevantly states:
14 (1)Subject to subsection (2), this Act does not exclude or derogate from rights to damages or compensation that exist apart from this Act.
(2) Where a person recovers compensation under this Act, the amount of that compensation will be taken into account in assessing the damages or compensation for injury or loss in proceedings founded on rights that exist apart from this Act.
(3) …
The purpose of the CICA’s similar predecessor, the Criminal Injuries Compensation Act 1969, was discussed by Bray CJ in Re Poore; Re Scully.[69] The following remarks by his Honour are apposite to the CICA:
[T]he purpose of the legislation is to afford a quick remedy to the injured party in addition to his ordinary remedies, together with the recognition of an obligation on the part of the community in appropriate cases to see that those injured by violent crimes are not deprived of effective relief up to the statutory limit because of the impecuniosity of the wrongdoer. [70]
[69] (1973) 6 SASR 308.
[70] Ibid, 310-311
Similarly, in relation to comparable Victorian criminal injuries compensation legislation Anderson J in Fagan v Crimes Compensation Tribunal observed that the purpose of the legislation was:
… not to award damages of a kind comparable or analogous to damages which an injured, as a plaintiff, might seek to recover from a tortious wrongdoer, but to give to the victim some solatium by way of compensation out of the public purse for the injury sustained, whether or not the culprit is brought to book, and whether or not the culprit might otherwise be liable to the victim.[71]
[71] [1981] VR 887, 889.
Res Judicata
Pursuant to the principle of res judicata where an action has been brought and judgment entered in that action, no other proceedings can thereafter be maintained on the same cause of action.[72] The fundamental notion of the rule is that the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence.[73]
[72] Jackson v Goldmith (1950) 81 CLR 446 (Fullaghar J).
[73] Blair v Curran (1939) 62 CLR 464, 532 (Dixon J).
To establish this form of estoppel, the earlier judgment relied upon must have been a final judgment and there must be identity of parties and of subject matter or cause of action in the former and in the present proceedings.[74] The principle of res judicata estoppel is supported on two grounds: one of public policy, that it is in the interest that there should be an end to litigation, the other of hardship to the individual, in that no-one should be vexed twice for the same cause.[75]
[74] Carl Zeiss Stiftung v Rayner & Keeler (No 2) [1967] 1 AC 853, 909-910; Trawl Industries of Australia Pty Limited (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406, 412 (Gummow J).
[75] See Law Book Company, Laws of Australia [16.1.40], footnotes 5-7 and authorities cited therein.
The defendant’s contention that the present proceedings are res judicata must fail. The same factual matrix (the admitted sexual acts) may have generated both the claim for criminal injuries compensation and the claim for common law damages, but as the remarks in Re Poore and Fagan illustrate, the claims are quite different in purpose and character. The consent orders made by the court in the earlier proceedings did not involve a pronouncement on tortious liability or plaintiff’s entitlement to damages at common law. Furthermore, as earlier noted, awards that victims of crime may receive under the statutory scheme are constrained by the amounts prescribed by the legislation and do not extend to financial loss. No such limitations exist in relation to the plaintiff’s claim for common law damages.
Also, there is, in my view, no identity of parties. As required under the CICA, the criminal injuries compensation order was made against the Crown while the common law claim seeks damages from the defendant. It is true that the compensation paid by the Crown was recovered by the Attorney General from the defendant but that does not alter the nature of the order made by the Court.
But more than that the CICA expressly provides that it does not exclude or derogate from rights to damages or compensation that is otherwise available and that a claimant is entitled to pursue relief that exists independently of the Act. In accordance with the scheme set up under the CICA, if the plaintiff is successful in the present proceedings then the compensation she has already received must be taken into account in the assessment of damages so as to prevent double-dipping.
In the circumstances it cannot be said that the plaintiff’s current claim has merged into the consent orders made by the court or, putting it another way, that those orders have determined the issues raised in the claim.
Anshun estoppel
The principle of Anshun estoppel, which derives its name from the decision of the High Court in Port of Melbourne Authority v Anshun Pty Limited (‘Anshun’),[76]provides that a party may be estopped from raising a claim or defence if he or she, through negligence, inadvertence or even accident, has failed to raise that claim or defence in prior proceedings when, given the relevance of that claim or defence, and the identity between the parties, to the earlier proceedings, that failure was unreasonable.[77] The principle recognises that there may be a variety of circumstances where a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue and motives extraneous to the actual litigation.[78]
[76] (1981) 147 CLR 589.
[77] G E Dal Pont and DRC Chalmers, Equity and Trusts in Australia (3rd ed,1992) [10.30], fn 22 and authorities cited therein.
[78] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 602-603.
The likelihood that the omission to raise the claim or the defence will contribute to the existence of conflicting judgments is an important factor to consider when deciding whether the omission can found an estoppel.[79] Conflicting judgments include judgments which are contradictory, even if not pronounced on the same cause of action: “It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.”[80]
[79] Ibid, 603-604.
[80] Ibid.
In the present case, Mr Algie argued that the plaintiff could and should have brought the claims for common law damages and for criminal injuries compensation in the one proceeding thereby minimising costs, delay to both parties and the demands on court time. He submitted that the failure to do so was unreasonable and therefore gives rise to Anshun estoppel.
I reject that submission for the following reasons.
Pursuant to s 7 of the District Court Act 1991 (SA) the Court is divided into four Divisions (a) the Civil Division (b) the Criminal Division (c) the Criminal Injuries Division and (d) the Administrative and Disciplinary Division. The institution and prosecution of actions in the Civil Division are regulated by the District Court Civil Rules 2006 (SA). However, claims under the CICA and its successor the Victims of Crime Act 2001 (SA) are brought in the Criminal Injuries Division and are subject to different rules and under Parts II, III and V of the District Court (Criminal and Miscellaneous) Rules 1992 (SA). For example, under the District Court Civil Rules 2006 a defendant who proposes to resist a plaintiff’s claim must file a defence within 28 days after service of the plaintiff’s statement of claim (6R 92) while under the District Court (Criminal and Miscellaneous) Rules a defence must be filed within 21 days of receiving the originating process (r 7.07).
Due to the procedural dichotomy created by the Rules, Mr Algie’s argument would require the plaintiff to have conducted two separate actions simultaneously and to have obtained an order that the two separate actions be listed before the same judge at the same time. While an order of that nature could be obtained, such an approach could be a burdensome, time consuming and costly exercise for a plaintiff. On the other hand, there may be advantages to a plaintiff proceeding first with a criminal injuries compensation claim, not the least of which is that a successful claim may assist the plaintiff to fund a civil action. As the majority observed in Anshun “a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense”.
In any event, there is no guarantee that a court would allow a listing of the two actions before the same judge. The State, against whom a claim for criminal injuries must be brought, might oppose a joint listing of trials because it would be tied to proceedings that would focus primarily on a civil action in which it had no direct interest. The defendant might also oppose a joint trial. Indeed, there is no evidence before me in the present case as to what the defendant’s attitude would have been if the plaintiff had embarked on the course that Mr Algie contends she should have taken. In the circumstances one can well understand why the plaintiff was advised by her solicitors to proceed first with the compensation claim.
Furthermore, s 14(1) of the CICA acknowledges that a person who recovers compensation under the CICA is, nevertheless, entitled to pursue rights to damages that exist apart from the Act. In other words it contemplates that a person (1) may obtain compensation outside the CICA and (2) obtain such compensation before pursuing a common law claim. It is difficult to see how the plaintiff’s alleged failure to pursue a civil action at the same time as the criminal injuries claim can be regarded as unreasonable when all that she has done accords with the legislative scheme. Also there is no risk of inconsistent findings if the claim for common law damages proceeds.[81] The sexual acts are not in dispute and any award of damages the plaintiff receives must be assessed having regard to the compensation she has already received under the CICA.
[81] See Gilmour Holdings Pty Ltd v Brisbane City Council (1984) 52 LGRA 378.
The defendant’s Anshun estoppel must be rejected. The court, of course, has a residual discretion to stay proceedings on grounds of an abuse of process, however, I see no proper basis for invoking that power. Accordingly, the defendant’s application for a stay of proceedings must be dismissed.
Orders
1.Application for an extension of time in relation to the causes of action pleaded in paras 4A – 4MM (inclusive) of the amended claim is dismissed.
2.Application for an extension of time in relation to the two causes of action pleaded in para 4 of the amended claim is granted. Time to institute proceedings in respect of those causes of action is extended to 16 January 2007 when the original claim was filed.
3.I will hear the parties as to costs.
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