Rogers v Rogers - [2005] NSWSC 807

CITATION:
Rogers v Rogers [2005] NSWSC 807

HEARING DATE(S): 5/8/05

JUDGMENT DATE :

5 August 2005

JUDGMENT OF:
Bell J at 1

DECISION:
Proceedings dismissed generally, pursuant to the provisions of Part 13 rule 5.

LEGISLATION CITED:
Limitation Act 1969
Supreme Court Rules 1970

CASES CITED:
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Hahn v Conley (1971) 126 CLR 276
Hillbrand v Penrith Council [2000] NSWSC 1058

PARTIES:
Grahame Andrew Rogers (Plaintiff)
Edward-Barrington Rogers (Defendant)

FILE NUMBER(S):
SC 20343/04

COUNSEL:
In person (Plaintiff)
No appearance (Defendant)

SOLICITORS:
In person (Plaintiff)
Marsdens Law Group (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 5 August 2005

20343/04 Grahame Andrew Rogers v Edward-Barrington Rogers
JUDGMENT

1 BELL J: These proceedings were commenced by statement of claim forwarded by post and received in the Registry on 27 September 2004. By this claim, the plaintiff asserted that between 1957 and 1973 the defendant, who is his father, had physically and psychologically abused him and that, as a result of this abuse, he had become a criminal, rather than a law-abiding citizen. He claimed $250,000 in damages.

2 By motion filed on 24 May 2005 the defendant sought orders, including that the plaintiff's claim be summarily dismissed. The motion came on for hearing before Studdert J. His Honour struck out the statement of claim on 22 April 2005. His Honour observed, at paragraph 16:

“Not without some hesitation I have concluded that the plaintiff should be given a further opportunity to replead his statement of claim and at the same time be given an opportunity to apply to the Court for an extension of time under the Limitation Act . Any such application would have to be supported by an affidavit addressing the gateway provisions to the grant of an extension of time. The plaintiff would have the extremely formidable task of establishing that this Court should now extend the time for bringing proceedings where the cause of action, if there be one, arose so many years ago.”

3 The orders that his Honour made included that the plaintiff have leave to file a further statement of claim within a period of twenty-eight days from 22 April 2005 and that any application pursuant to the Limitation Act 1969 and supporting affidavits be filed and served within twenty-eight days from that date. The motion was adjourned to 3 June 2005.

4 On 10 May 2005 the plaintiff filed a statement of claim pursuant to the grant of leave to which I have referred. He also filed a document titled "Application pursuant to the Limitation Act". In an affidavit he requested leave to bring a claim against his father, as set out in his statement of claim. He stated:

“It's true it has taken me some 30 years past the proper time for bringing my claim and I ask that the Court consider the circumstances set out here:

(1) because of my criminal…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Rogers v Rogers

Details

AGLC: Rogers v Rogers [2005] NSWSC 807
Case: [2005] NSWSC 807
Decision Date: 5 August 2005

CaseChat Overview and Summary

Grahame Andrew Rogers sought to claim damages from his father, Edward-Barrington Rogers, for alleged physical and psychological abuse that he suffered between 1957 and 1973. The case was initially heard in the Supreme Court of New South Wales, Common Law Division, where Justice Bell presided over the proceedings. The plaintiff sought $250,000 in damages. The defendant had previously moved to have the plaintiff's claim dismissed, and Justice Studdert had struck out the initial statement of claim, providing the plaintiff with an opportunity to replead and apply for an extension under the Limitation Act 1969. The plaintiff filed a new statement of claim and an application under the Limitation Act, but did not serve it on the defendant.

The court considered whether the plaintiff's claim was tenable, taking into account the expiry of the limitation period and the lack of a viable cause of action. Justice Bell held that the plaintiff's claim, to the extent it was based on his father's failure to provide a sound upbringing, was not tenable as the moral duties of conscientious parenthood do not provide a cause of action when neglected. Additionally, any claim of physical chastisement amounting to trespass to the person was statute-barred, as it was brought outside the limitation period. The court concluded that the plaintiff's claim was manifestly untenable and dismissed the proceedings generally, pursuant to the provisions of Part 13 rule 5 of the Supreme Court Rules 1970.

Orders