Rundle v Salvation Army (South Australia Property Trust)

[2007] NSWSC 443

CITATION:	Rundle v Salvation Army (South Australia Property Trust) & Anor [2007] NSWSC 443
HEARING DATE(S):	30 October 2006; 31 October 2006; 1 November 2006; 2 November 2006
JUDGMENT DATE :	7 May 2007
JURISDICTION:	Common Law Division
JUDGMENT OF:	Simpson J
DECISION:	(1) Pursuant to s48 of the Limitation of Actions Act 1936 (SA) the time for commencement of proceedings against the first defendant is extended to 25 March 2003; (2) The first defendant is to pay the plaintiff’s costs of the application.
CATCHWORDS:	LIMITATION OF ACTIONS – tort – personal injury – psychological/psychiatric injury arising from sexual abuse of plaintiff as a child in care of first defendant between 1960 and 1965 – plaintiff under disability until April 1971 – action statute barred – application for extension of time – application governed by SA legislation – amendments to legislation – whether amendments apply to proceedings already commenced – whether plaintiff had an accrued right – correct identification of right said to have accrued – whether material fact(s) not ascertained by plaintiff until within twelve months of institution of proceedings – whether any conduct of first defendant available to excuse plaintiff’s failure to institute proceedings within limitation period – what constitutes material fact – when plaintiff aware of material facts – whether it is just to grant extension of time – estoppel – whether failure of first defendant to particularise opposition to application relevant to justice of granting extension – Limitation of Actions Act 1936 (SA) s 48
LEGISLATION CITED:	Law Reform (Ipp Recommendations) Act 2004 Limitation of Actions Act 1936 (SA)
CASES CITED:	Boral Windows v Industry Research & Development Board [1998] FCA 455; 83 FCR 215 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 Ellis v Pell [2006] NSWSC 109 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 Laurie v Renad [1892] 3 Ch 402 Longman v The Queen [1989] HCA 60; 168 CLR 79 Maxwell v Murphy [1957] HCA 7; 96 CLR 261 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116 Re Rutledge [1973] VR 733 Reid v Reid (1886) 31 Ch D 402 Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; 163 CLR 628 The Commonwealth of Australia v Verwayen [1990] HCA 39; 170 CLR 394 Wright v Donatelli (1995) 65 SASR 307
PARTIES:	Graham Ross Rundle (Plaintiff) Salvation Army (South Australia Property Trust) (First Defendant) Keith Ellis (Second Defendant)
FILE NUMBER(S):	SC 20073/03
COUNSEL:	Dr AS Morrison SC/R Newell (Plaintiff) PR Garling SC/KA Rees (First Defendant)
SOLICITORS:	Conditsis & Associates (Plaintiff) Harris Hyde Page (First Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

7 May 2007

20073/03 Graham Ross Rundle v Salvation Army (South Australia Property Trust) & Anor

JUDGMENT: on application for extension of time

1 HER HONOUR: On 25 March 2003 the plaintiff, Graham Ross Rundle, filed in this court a statement of claim naming the “Salvation Army (South Australia Property Trust)” as first defendant, and Keith Ellis as second defendant. The present proceedings involve only the first defendant, although, in finding and recounting the relevant facts, it will be necessary at times to make reference to the allegations against the second defendant. It will be seen that the first defendant is named as a particular legal entity. It will be at times in this judgment necessary to refer to “the Salvation Army”, which is not, as I understand it, co-extensive with the first defendant. The evidence was unclear as to the precise legal status (if any) of “the Salvation Army”.

2 The plaintiff claims damages for personal injury he alleges he suffered as a result of breach of a duty of care owed to him by the first defendant between 1960 and 1965, while he was a child in its care in a facility it conducted in South Australia. Having regard to the dates of the alleged breaches of duty, the plaintiff, at the same time as he filed the statement of claim, also filed a notice of motion seeking an extension of time (to 25 March 2003) to commence the proceedings. It is that application that is the subject of the present judgment. It will be convenient to continue to refer to the first respondent to the notice of motion as the first defendant (to the proceedings).

3 Since the events giving rise to the claim allegedly occurred in South Australia it is (it is common ground) the law of South Australia that governs the application: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503. The first defendant has appeared by counsel to resist the application. The second defendant has not appeared or participated in the proceedings.

4 The relevant legislation is the Limitation of Actions Act 1936 (SA) (“the Act”). By s36(1) of the Act an action for personal injury must be commenced within three years of the date on which the cause of action arose; by s45, where the plaintiff is under a legal disability, that time is extended for the duration of the disability.

5 The plaintiff was born on 22 September 1952. On the facts asserted in the statement of claim (and not, for the purpose of this application, in issue) the cause of action pleaded arose over a period that began in 1960 and ended in 1965. By reason of the plaintiff’s age, and the definition of “disability”, he was, until 23 September 1973, under a disability. Accordingly, the limitation period would have expired on 23 September 1976. That is because until 1971 the age of majority in South Australia was 21. The plaintiff turned 21 on 23 September 1973. Any cause of action he then had would, as the law then stood, have become statute barred on 23 September 1976.

6 However, from 15 April 1971, the age of majority was reduced to 18. the amending legislation provided that a person between the ages of 18 and 21 at that time (as was the plaintiff) attained majority on that date – 15 April 1971. The limitation period thus expired on 15 April 1974.

7 S48 of the Act confers upon the court a power to extend the limitation period in the circumstances there specified. Until 1 May 2004 s48 was relevantly in the following terms:

“ 48 General power to extend periods of limitation

(1) Subject to this section, where an Act, Regulation, Rule or by-law prescribes or limits the time for -

(a) instituting an action;
(b) …
(c) …

a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.

(2) …

(3) This section does not -

(a) …;
(b) empower a court to extend the 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
(ii) that the plaintiff’s failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and other relevant circumstances,

and that in all the circumstances of the case it is just to grant the extension of time.”

8 On 1 May 2004 the section was amended by the insertion of sub-ss(3a) and (3b). Those sub-sections provide as follows:

“(3a) A fact is not be regarded as material to the plaintiff’s case for the purposes of sub-section (3)(b)(i) unless -

(a) it forms an essential element of the plaintiff’s cause of action; or
(b) it would have 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 expectation of life.
(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.”

9 These subsections quite radically restrict the approach to be taken to the determination of (i) whether a fact or facts not ascertained by the plaintiff within the limitation period is or are material to his/her case; and (ii) whether it is just to extend the time for commencing proceedings. The parties are at issue as to whether sub-ss(3a) and (3b) apply to the present application. I will deal with this in due course.

The statement of claim

10 The allegations of fact pleaded in the statement of claim are, essentially, as follows. In 1960, when he was eight years old, the plaintiff was placed by his father in the full-time care and custody of the first defendant. The first defendant placed him in a home called Eden Park, in South Australia. The second defendant was employed by the first defendant as a full-time carer and supervisor at the home. Several months after arriving at the home, the plaintiff was sexually assaulted by another boy who was a resident. The plaintiff brought this to the attention of the second defendant, who took no action. Thereafter, until 1965, the plaintiff was regularly sexually assaulted by other boys at the home. After a time, the second defendant himself began to assault the plaintiff, and did so frequently thereafter. As a consequence of the assaults, the plaintiff suffered (at the time) physical injury; and he also suffered, and continues to suffer, psychological and/or psychiatric injury.

11 The plaintiff pleads that, by its failure to supervise other boys in the home, its failure to investigate or take any action in relation to his report of sexual assault, and its failure to implement a system or strategy to protect the plaintiff, the first defendant was in breach of a duty it owed him to take reasonable care for his safety. He also pleads that the first defendant is vicariously liable for the assaults committed on him by the second defendant; that the first defendant was in a fiduciary relationship with him; and that, by its conduct (or by its omissions), the first defendant was in breach of that fiduciary duty. He claims damages.

12 For the plaintiff to succeed in the present application, it is necessary that he establish:

(i) that a fact or facts material to his case was or were not ascertained by him until on or after 25 March 2002 (that is, within 12 months of the filing of the statement of claim, although the identification of the date is complicated by negotiations between the parties, as a result of which the first defendant formally agreed to a cessation of the running of time); alternatively

(ii) that his failure to institute the action within the time specified (that is, by 15 April 1974) resulted from representations or conduct of the first defendant, or a person whom he reasonably believed to be acting on behalf of the first defendant; and, in either case

(iii) that in all the circumstances of the case it is just to grant the extension of time.

13 The plaintiff invokes both alternatives: he claims that certain facts material to his case were not ascertained by him until dates after the expiration of the limitation period, but within the period that may be allowed under s48 (as modified by the agreement between the parties); and, additionally, that his failure to institute the proceedings was brought about by representations or conduct of the first defendant (or a person he reasonably believed was acting on behalf of the first defendant). Sub-ss(3a) and (3b), if they apply, cast light upon the approach to determining whether any one or more of the facts the plaintiff claims not to have been ascertained by him until some point within that time properly qualifies as “material”; and upon the question whether it is just in all the circumstances to grant the extension of time sought.

14 As the focus on “the justice of the case” makes clear, the remedy is, even if the plaintiff establishes the requisite ignorance of material facts, discretionary. It is necessary to have regard to any prejudice that might accrue to the first defendant were the order made. The onus lies on the plaintiff to negative any such prejudice. After such a lapse of time it ought to be presumed that the first defendant will have suffered some prejudice by reason of the loss of possible witnesses, or faded recollections, or other circumstances. In fact, in this case, the first defendant has set out to make a positive case that it would be significantly prejudiced if, after 40 years, the plaintiff were permitted to bring the action.

15 It is convenient here to set out a little of the evidence, much of which is uncontroversial for this purpose and which supports the allegations made in the statement of claim. For the purpose of the present application I am satisfied of the following facts.

16 As mentioned above, the plaintiff was born on 23 September 1952. At the age of about eight years, he was surrendered by his father (whose wife had left him some years earlier) into the care of the first defendant. The first defendant placed him at Eden Park Boys’ Home at Mount Barker, South Australia. The second defendant, Keith Ellis, was an officer of the first defendant, employed at Eden Park as a full-time carer and supervisor of children accommodated at the home. About a month after his arrival, the plaintiff was sexually assaulted by one of the older boys, with sufficient force to cause him to bleed quite heavily. The bleeding continued for about a week. The plaintiff recounted this event to other children, but received no assistance or advice. He therefore reported the assault to the second defendant. The second defendant told him not to cry, and not to be stupid. He replaced the plaintiff’s clothing and told him to have a shower.

17 Thereafter, sexual assaults became a regular event, occurring at least once or twice weekly over a number of years. The plaintiff calculated that he suffered at least three hundred or four hundred such assaults, at the hands of nine boys (some of whom he named). The assaults took the form of anal penetration, forced masturbation, and forced oral sex.

18 For the next year, the plaintiff did not make any further report of the assaults. Eventually, however, at the instigation of another boy, he again reported, to the second defendant, what was happening. He received some comfort. After another, brutal, attack by one of the older boys, the plaintiff again consulted the second defendant. The second defendant responded by himself sexually abusing the plaintiff. He did this regularly over the ensuing year. Initially, the abuse perpetrated by the second defendant took the form of masturbation, but escalated to penile anal penetration. After these events, the second defendant accused the plaintiff of leading him on, and physically assaulted him with a strap. The plaintiff came to believe that the abuse was his fault. Over time, the nature of the abuse changed, becoming increasingly more severe.

19 When the plaintiff was about 11 or 12 (that is, in 1963 or 1964) he was taken, on three occasions, by the second defendant with three other boys to Adelaide to sell badges. The group stayed at the home of the second defendant’s mother. There, after the boys had gone to bed, the second defendant perpetrated further, and much more sustained, abuse upon the plaintiff. He forced the plaintiff to masturbate him, participate in oral sex, and digitally penetrate his anus. He had penile/anal penetration at least twice during the night.

20 The plaintiff began to run away from Eden Park. He was regularly returned either by police or older boys. He was physically punished, by another officer, and locked up for two to three days at a time, in what amounted to an isolation cell, without food or blankets. The sexual assaults by the second defendant continued (with a brief pause) until the plaintiff was about 12 years of age, and about to begin high school. The assaults ceased when the plaintiff was 13 years of age. Once the assaults ceased, the second defendant became very nasty towards the plaintiff, giving him unpleasant tasks, falsely reporting misconduct, and physically beating him. On occasions the plaintiff was bruised, bleeding and his eyes were blackened. The beating was brought to an end by another, new, officer, to whom the assaults had been reported by other children.

21 Eventually, at school after a beating, the plaintiff reported the assault to his soccer coach, who in turn reported it to Eden Park. The plaintiff was then beaten by another officer who held the rank of Brigadier.

22 The plaintiff became concerned about the welfare of younger children and this eventually led him into confrontation with a number of Aboriginal boys in the home. The plaintiff was injured, requiring medical treatment to suture a wound. This precipitated another beating, as punishment for the trouble caused.

23 The above account of the plaintiff’s days at Eden Park is largely drawn from a statement made by him on 9 May 2001. He swore an affidavit on 19 March 2003, giving some detail of his life after leaving Eden Park. Again for the purposes only of this application, I accept the plaintiff’s evidence (which was not, in any significant way, challenged). There was also affidavit evidence from the plaintiff’s solicitor (Ms Julia Slape) and further affidavits sworn by the plaintiff and others. The plaintiff’s further evidence deals with his post-Eden Park history. Other affidavit evidence deals with the history of the plaintiff’s claim, and negotiations between his solicitors and solicitors representing the first defendant. In evidence also were reports of Dr Jonathan Phillips, psychiatrist, and Mr John Taylor, psychologist.

24 The plaintiff left Eden Park at the age of 16 and joined a circus. He has not, until recently, discussed or disclosed his experiences. He was socially isolated. He felt shame, and, while he seems to have recognised that his behaviour was different from that of others, he did not understand why that was so.

25 He undertook a variety of forms of employment, most of which he lost due to absenteeism. He held one position at Gosford Hospital for ten years, but was subsequently demoted, for the same reason, absenteeism.

26 He experienced sleep disturbances, and nightmares, involving the Eden Park years. He was not conscious that he was not functioning normally. In 1971 and 1974, at the ages of 18 and 22, he made attempts on his own life, firstly by trying to shoot himself, and secondly by cutting his wrist.

27 He married in 1982, but for many years did not reveal details of his early life to his wife.

28 In 1996 the plaintiff met, by doing some building work for him, a social worker called Graham Jackson who was also a priest of the Church of England. In 1999 he consulted Mr Jackson professionally, to discuss his personal issues. It was not, however, until late 1999 that he felt able to raise the Eden Park events and then it was only in general terms.

29 In about May 2000 the plaintiff’s wife spoke of the plaintiff’s history to Ms Rosanna Jones, who had some contact or affiliation with the Salvation Army.

30 On 5 May 2000 Ms Jones wrote to Major Lingard, the public relations secretary for the Salvation Army. The purpose of her letter was to draw the Salvation Army’s attention to the history of abuse of the plaintiff (and others). She declined to identify the plaintiff, but did identify Eden Park. The main point of her letter was to encourage the Salvation Army to acknowledge publicly the kind of treatment the plaintiff had experienced. Her letter was passed to Lieutenant Colonel Brian Hood, who identified himself as “Secretary for Personnel”, and who responded to Ms Jones’ letter on 5 July 2000. Lieutenant Colonel Hood, in effect, informed Ms Jones that she had communicated with the wrong branch of the Salvation Army. He told her that the Salvation Army is organised into two territories – the eastern and the southern – and that while the two cooperated with, they were independent of, one another. He said that Eden Park was in the southern territory and that, as he was employed in the eastern territory, he was unable to pursue the matter. He undertook to forward the letter to the appropriate officer in the southern territory. He also advised Ms Jones of the Salvation Army’s then operative procedures for responding to complaints of mistreatment.

31 Eventually, on 11 August 2000, Mr Philip Brewin (a director in the Melbourne firm Nevett Ford, solicitors who represent the first defendant) wrote to Ms Jones on behalf of the Salvation Army. It is of some significance that he identified the entity on whose behalf he wrote as “the Salvation Army Southern Territory”. He informed Ms Jones that the firm’s instructions were to investigate the complaint:

“in a compassionate and caring manner and to provide practical help to persons who claim to have suffered abuse”.

He invited Ms Jones to pass his letter on to the plaintiff with a request that he contact the writer in order to enable arrangements to be made with a view to obtaining a detailed statement. (Of course, at this stage Mr Brewin had no way of knowing the identity of the person the subject of Ms Jones’ letter and therefore of communicating with him directly.)

32 Ms Jones, however, did not give the plaintiff Mr Brewin’s letter nor tell him about it. He was unaware of it until he found it in February 2001 whilst assisting Ms Jones to clean a room in her house.

33 A few weeks later (on 26 March) the plaintiff did telephone Mr Brewin. As a result of the conversation, Mr Brewin formed the view that the plaintiff “was intent on pursuing” a claim for compensation against “the Salvation Army”. On 30 March 2001 Mr Brewin wrote directly to the plaintiff, saying that “the Salvation Army” had asked him to obtain a detailed statement concerning the plaintiff’s experiences at Eden Park. He asked the plaintiff to contact Messrs Harris, Hyde and Page, Nevett Ford’s Sydney agents. He named Mr Jonathon Harris as the solicitor to contact. On 20 April 2001 Ms Annette Wilson, acting in substitution for Mr Harris, also wrote directly to the plaintiff, with a similar request to that of Mr Brewin. On 4 May 2001 the plaintiff met Ms Wilson in conference. He provided information which was transcribed into a statement, eventually dated 9 May 2001. The statement is that to which I have earlier referred and is the source of much of the factual history already recounted. One matter may here be noted. A draft of the statement was sent to the plaintiff for his confirmation. He made one amendment to the draft, by deleting two lines thereof. He did not delete the last line in the draft, which reads:

“I do believe I should be given some sort of monetary compensation.”

I flag this because it became a matter of some significance, particularly in the cross examination of the plaintiff, and also in the argument advanced on behalf of the first defendant.

34 At the conclusion of the conference on 4 May Ms Wilson suggested that the plaintiff should seek his own legal advice. This was the first such suggestion that had been made to the plaintiff. He had not previously realised that he may have any actionable legal rights. However, on 22 May Ms Wilson advised Mr Brewin that, in her view, the plaintiff was “looking for compensation”. The plaintiff, in conference with Ms Wilson, made reference to an organisation known as “Clan” which was exploring the possibility of “a class action” (presumably against “the Salvation Army”); the plaintiff said that, while he did not then wish to be involved, he did, nevertheless, believe that he should receive “monetary compensation”; and he asked her for advice about his “legal rights” (which she, unsurprisingly, declined to give).

35 On 25 May 2001 Mr Brewin again wrote to the plaintiff. After thanking the plaintiff for recounting his experiences, and recognising the distress it must have caused to him, Mr Brewin informed the plaintiff that he had asked “the Army” to set in train investigation of the allegations. Specifically in response to the plaintiff’s claim for compensation, Mr Brewin said that he would like to obtain reports of counsellors, medical practitioners or psychiatrists from whom the plaintiff had received counselling or treatment as a result of his Eden Park experiences. He enclosed authorities for the plaintiff to sign if he agreed to this.

36 On 20 June 2001 the plaintiff contacted his present solicitors and gave them a copy of the statement he had made to Ms Wilson.

37 There followed a volume of correspondence between solicitors. On 1 August 2001 Mr Jackson provided the plaintiff with a report. After setting out some preliminary history, Mr Jackson provided an assessment of the plaintiff’s then position. He recorded that the plaintiff had revealed an extensive and extreme history of sexual and physical abuse at Eden Park and reported:

“My observations of his affect during these interviews and during my informal sessions with him clearly indicate a person who has been deeply damaged by his life experiences. I am fully confident that the expression of his emotions was and remains genuine, and, if anything he is repressing and suppressing emotions. These expressions of emotions cover extreme anger, suicidal ideation and unrealistic personal guilt.
15. In addition to the emotions exhibited during his interview it is clear that he is suffering from a number of standard symptoms of Post-Traumatic Stress Disorder. …”

The plaintiff sent a copy of this report to Ms Wilson on 9 August 2001. He also advised her that he had consulted Dr Peter Kemp, a general practitioner, who had treated him for approximately ten years.

38 On 20 August 2001 Mr Brewin responded to the plaintiff’s letter of 9 August. He identified the subject matter of the letter as “the Salvation Army”. Significantly, he wrote:

“We have put your allegations to the officers named by you and also to Mr Ellis. We would like now to meet again with you in conference to discuss the various responses to your statements and also to the report of Mr Graham Jackson kindly provided to us by you.”

Mr Brewin confirmed that “the Salvation Army” would meet the reasonable costs of Mr Jackson’s report and also the plaintiff’s travelling costs for the meeting with Ms Wilson.

39 At the request of Mr Brewin, on 7 September 2001 a conference took place at the plaintiff’s home. Present were Mr Brewin, Mr Jackson and the plaintiff. At that conference Mr Brewin had in his possession and read from certain statements (which the plaintiff took to have been made by some of the officers at Eden Park at the time of his residency there). Mr Brewin said that these statements had been obtained for the purpose of investigating the plaintiff’s allegations. The plaintiff participated in the conference and answered questions that were put to him.

40 On 10 September 2001 and on 21 September 2001, again at the request of Mr Brewin on behalf of “the Salvation Army”, the plaintiff attended a meeting with Dr Doron Samuell, a psychiatrist. Dr Samuell then provided a report, dated 28 September 2001, to the plaintiff’s solicitors. Dr Samuell recounted, at some length, the plaintiff’s history, and his allegations. Acting on the assumption (as to which he did not imply doubt) that the allegations and history were accurate, Dr Samuell described the effects of the abuse as “protean”. He then set out the plaintiff’s symptomatology, and reported:

“Given Mr Rundle’s age when these traumas occurred it is reasonable to make a diagnosis of Post Traumatic Stress Disorder and Personality Disorder, not otherwise specified.
The Post Traumatic Stress Disorder manifests itself with frequent re-experience phenomena, avoidance phenomena and hyper-vigilance. This Post Traumatic Stress Disorder is chronic and severe. It is unlikely to respond to any significant treatment.
With respect to the Personality Disorder, not otherwise specified, given Mr Rundle’s age when this abuse occurred, it has indelibly changed the course of normal character development. Once again, this is unlikely to be responsive to treatment.
Mr Rundle is likely to experience most benefit from an acknowledgement, by both Sergeant Ellis and the Salvation Army, of the events that have transpired. Certainly, his social functioning is impaired on a full and permanent basis. His capacity for work is not fully impaired, and he is perhaps able to work at a level of 30-40% of what may be considered normal for a person in his circumstances who had not suffered the same extent of abuse.”

On 12 August 2002 Dr Samuell furnished a short supplementary report. It adds little to the original.

41 It was on reading Dr Samuell’s report that the plaintiff realised, for the first time, that there existed a link between his experiences at Eden Park and his subsequent, adult, behaviour, and that he was actually suffering a disability.

42 By September 2001, it is apparent, “the Salvation Army” and the plaintiff considered themselves to be in negotiations with respect to the plaintiff’s claim for compensation. For that purpose a “Deed of Confidentiality” was prepared, and eventually executed. (The evidence is quite unclear about the dates of its operation. The copy of the Deed that is in evidence is signed only by the plaintiff and not on behalf of the first defendant and is undated. On the plaintiff’s evidence, the Deed was returned signed by him, (with an amendment) to Nevett Ford on 19 October 2002. But a letter from Mr Brewin, accepting the amendment, is dated 15 January 2002). For present purposes, the most significant aspects of the Deed are: (i) that the Deed was expressed to have been made between the plaintiff and “the Salvation Army (Victoria) Property Trust (the Salvation Army)”; and (ii) that “the Salvation Army” agreed that it would not, in the event that negotiations did not result in a settlement of the plaintiff’s claim, invoke a defence under the Act “by reason only of time passing while negotiations are under way”. Negotiations did proceed. They did not result in a resolution of the plaintiff’s claims. The agreement represented by the Deed had the effect of suspending the running of the limitation period for a period from about 19 October 2001 (or alternatively 15 January 2002) until an (unspecified) date when negotiations ceased.

43 On 29 August 2002 an informal settlement conference took place in Sydney. It has, at times, been referred to as “a mediation”. It also did not result in resolution.

44 On 9 October 2002 the plaintiff’s solicitors wrote to Mr Brewin seeking certain information. This included the correct legal identification of the entity in whose custody and care the plaintiff was placed during his time at Eden Park. On 15 October Mr Brewin responded. He identified the “entity” as “the Salvation Army (South Australia) Property Trust”. He provided some additional information about the structure of the first defendant, which appears to be a statutory corporation. This was the first time the plaintiff knew of the correct nomination of the entity that had conducted Eden Park at the time of the plaintiff’s accommodation there.

45 I infer from these last two letters that, in about the middle of October 2002, the respective solicitors for the parties had concluded that informal resolution was unlikely, and that the plaintiff’s claim would proceed to litigation. There is, however, no clear evidence as to any date on which this occurred, and thus when the suspension of time provided for by the Deed came to an end.

46 The plaintiff, his solicitor Ms Slape, and counsel, conferred on 8 November 2002. It was recognised that, if the plaintiff were to proceed with a claim against the first defendant, an extension of the limitation period would be necessary. Counsel advised that additional evidence was required to support the application for extension of time. The steps recommended were taken. The statement of claim was filed, together with the application to extend time, on 25 March 2003.

47 Following service of the statement of claim, Ms Wilson began investigating the plaintiff’s allegations. On four occasions between April 2003 and February 2004 she requested further and better particulars of the claims. The information sought included the identities of various individuals mentioned by the plaintiff either in his statement of claim or affidavits; details of medical treatment sought or received by the plaintiff; details relevant to the history recounted by Dr Samuell in his reports; identification of a psychiatrist by whom the plaintiff claimed to have been treated; and details of the plaintiff’s employment history.

48 The plaintiff’s solicitors responded to each request, although they were not always able to provide the information sought. For example, the plaintiff was unable to remember the name of the psychiatrist, but said that he had practised from rooms in Mann Street, Gosford.

49 On 18 August 2003 a programme was televised on the ABC programme “Four Corners”. This was called “The Homies”. Its subject matter was victims of child abuse in Salvation Army children’s homes during the period 1950 – 1979. A spokesman for the Salvation Army, Mr John Dalziel, was interviewed. Mr Dalziel made some significant admissions of such abuse. Two questions and answers are said to be of considerable moment in relation to the present application. They were:

“Q: I know that your whole impetus is to help the victims and you have said that most eloquently, tell me then why were the Salvation Army’s lawyers telling the victims that the statute of limitations would be brought up by them to prevent the men pursuing their claims in the civil court?

A: That’s the first time I’ve heard that and they should not have said it because, as I have previously stated, we have no statute of limitations applying to victims of the Salvation Army.

Q: Your lawyers have quoted the statute of limitations in defence of the Salvation Army position.
A: Well, the Salvation Army makes it clear that we will never close the book on any one who has gone through our care as long as they live, and I believe we’ve demonstrated that with the people we’ve been helping.”

The significance sought to be placed on this on behalf of the plaintiff will be explored later.

50 On 29 August 2003 the plaintiff was psychiatrically examined by Dr Jonathan Phillips. Like Dr Samuell, Dr Phillips diagnosed Post-Traumatic Stress Disorder directly consequential upon the plaintiff’s experiences at Eden Park. He considered the plaintiff to be disabled by his symptoms, with exacerbation as a result of learning of the connection between his childhood experiences and his adult behavioural symptoms.

51 There was then considerable communication between solicitors including disputes over production of documents.

52 On 30 March 2005 Ms Slape wrote to Mr Brewin. She raised three matters. First, she sought an explanation for the first defendant’s opposition (which had, apparently, been communicated to her) to the hearing of the application for extension of time. Secondly, she contended that the first defendant was, on the basis of the High Court decision in The Commonwealth of Australia v Verwayen [1990] HCA 39; 170 CLR 394, estopped from relying upon the limitation period. Thirdly, she included the following paragraph:

“We refer you to the requirements on a respondent to an application for extension of time set out in Nowlan v Marson Transport [2001] NSWCA 364 at paras 22 – 32 and 43 – 46. You are required to specify the grounds of your opposition to our application for extension of time.

I note in this context that you have told us that you have statements from Major Allen Laurens and Major David Osborne. If you allege prejudice through delay it will be necessary for you to disclose the contents of those statements or we will ask the court to draw the obvious inference that no such prejudice exists.”

53 On 4 April Mr Doran (a solicitor employed by Nevett Ford) replied, explaining that the basis on which he opposed the hearing of the application was that criminal charges were pending against the second defendant. He therefore considered the references to Verwayen and Nowlan as “irrelevant and unnecessary”.

54 On 24 May Ms Slape telephoned Mr Doran. Inter alia, she asked Mr Doran when he would be in a position to provide details of his objection (if any) to the application for extension of time. Mr Doran initially replied by saying that he had not read the decision in Nowlan; he did not concede that it applied, given that the issue is under South Australian jurisdiction. He said he would need to read the decision and consult counsel. On 2 June Mr Doran replied in writing. Relevantly to this question, he wrote:

“With respect, your reliance on Nowlan appears to assume that the first defendant has not made plain its opposition to the extension of time application. We most strenuously reject that assumption as being correct.
The first defendant has filed and served seven affidavits in opposition to the application. Each of those affidavits sets out in detail the matters to which they are addressed. The plaintiff can be under no misapprehension as to the factual basis upon which the first defendant opposes an extension of time being granted.
Further, the decision in Nowlan turned on its facts and the comments of Heydon JA and Young CJ in Equity that you rely on are obiter dicta . You have not pointed to any rule of the Supreme Court or practice direction that requires the first defendant to state its objections to the extension of time application (see paragraph 32).
Finally, if it is a principle of the conduct of the extension of time applications for a statement of opposition to be given, it is only appropriate where it is not clear on the material filed what the grounds of the opposition are (see paragraph 44).
It follows therefore that the affidavits in opposition upon which the first defendant relies set out the scope of its opposition to the extension of time application so that the plaintiff cannot be said to be taken by surprise in how opposition to the application will be conducted at the hearing.”

55 Under the heading “Conclusion” Mr Doran wrote:

“1. Given the substance of its affidavits, there is no requirement for, or obligation on, the first defendant to state objections to the extension of time application. In short, any principle to be drawn from Nowlan does not apply to this proceeding.”

56 This drew a response from Ms Slape dated 6 June 2005. It is unnecessary to reproduce what Ms Slape said. It is sufficient to note that the issue was plainly joined between the legal representatives.

57 In 2004 a Commission of Inquiry was appointed in South Australia. The Commission was charged to inquire into allegations, inter alia, of sexual abuse of children in State care. The Inquiry opened on 9 December 2004. On 12 May 2004 the Commissioner furnished to the Governor of South Australia an interim report. (I mention this because the Report has been put in evidence on behalf of the plaintiff in these proceedings. Although the Inquiry was directed to children in State care Mr Brewin said that it also concerned children who were wards of the state but accommodated in religious institutions and that some former residents of Eden Park gave evidence. In any event, as no relevant finding or extract of the Report was identified, it is difficult to perceive its materiality to the present application.) It seems also that, in about 2003, the Senate appointed a Committee to enquire into the treatment of children in institutional care. In July 2003 the Salvation Army Australia Eastern and Southern Territories made a joint submission to the inquiry. This also was put in evidence on behalf of the plaintiff. Again, the basis upon which it is said to assist in resolution of the present dispute escapes me. The submissions contained little of real substance, at least that is relevant to the present proceedings.

The first defendant’s case

58 Mr Brewin, Ms Wilson and Mr Doran, and others, provided affidavits on behalf of the first defendant. Mr Brewin and Mr Doran gave oral evidence.

59 With respect to the second limb of s48(3)(b)(i), whether it is just to grant the extension, the first defendant sought to make a case of actual hardship. In short, its position was that, by reason of the passage of time since the events in question, it is unable adequately to investigate the plaintiff’s claims. A good deal of preliminary work has been undertaken in the investigation of claims generally, including that of the plaintiff.

60 Evidence was given of largely unsuccessful attempts to locate various of the individuals identified by the plaintiff. Some of these were other residents; others were staff members or Salvation Army officers. There was formal evidence (not surprisingly) that some have died.

61 The first defendant’s solicitors also focussed upon assertions made by the plaintiff of his chequered employment history, which, on his case, was (although previously unknown to him) a consequence of the psychiatric condition with which he has now been diagnosed; and of the suicide attempts in 1971 and 1974. In this respect, the plaintiff had advised the first defendant’s solicitors that he had consulted a psychiatrist in Mann Street Gosford. He was unable to give a name of the psychiatrist. The evidence of the first defendant was that they had made what attempts they reasonably could to identify and locate such a person, but without result. Accordingly, on the first defendant’s case, it would be unable to investigate the plaintiff’s allegations in this respect.

62 I am prepared to accept, even without the detailed evidence provided on behalf of the first defendant, that, after a lapse of 40 years, it would be difficult to locate relevant witnesses, and that any who would be able to be located would be likely to have, at most, sketchy and probably unreliable recollections.

63 The plaintiff’s solicitors themselves were able to locate some of the individuals named. However, there was no evidence that any of those located was able to elucidate the issues.

64 There was one worrying aspect of the evidence elicited on behalf of the first defendant upon which I must comment. Mr Doran swore an affidavit on 14 December 2005. The thrust of this affidavit was, in a careful and painstaking way, to detail some of the attempts that had been made to locate potential witnesses, or individuals who could provide information.

65 Mr Doran’s affidavit evidence concerning a Major Ian Huxley, an officer of the first defendant, was of some concern. Mr Doran deposed that Major Huxley had died on 11 September 2004. That, no doubt, was correct, and was established by a death certificate. However, to Mr Doran’s knowledge, a statement had been taken from Major Huxley before his death. He did not disclose this, leaving the impression that the first defendant was deprived of any opportunity to obtain information from this source.

66 More worryingly, in an affidavit sworn on 7 February 2006, Mr Doran made reference to a Dr Le Page. Dr Le Page was shown, by other evidence, to have been a psychiatrist who, during the relevant period, attended at Eden Park from time to time to care for some of the residents. Contact was made on behalf of the first defendant with Dr Le Page who, on 6 June 2003, wrote to Ms Wilson (in response to a subpoena) saying that he did not have in his possession any relevant documentation in relation to the plaintiff. Later, in October 2005, Mr Doran wrote to Dr Le Page, and subsequently spoke to him by telephone. Again, it was made clear that he was unable to provide any relevant documentation, although he had arranged for some searches to be made. All this was included in Mr Doran’s affidavit. What is worrying about this is that, in cross examination, Mr Doran agreed that he knew that Dr Le Page had only treated residents who had been referred through a particular clinic. He was not a general consultant to Eden Park. He had never treated the plaintiff.

67 Mr Doran’s affidavit evidence, in this respect, was plainly intended to create the impression that the first defendant had been prejudiced by the inability to obtain documentary material from Dr Le Page. That was, in my opinion, a misleading impression, in the light of the knowledge that Dr Le Page had never been involved in the plaintiff’s treatment. That is, the effluxion of time was, in this respect, entirely incidental. Contrary to the impression given, it did not work any prejudice to the first defendant. Both Mr Brewin and Mr Doran were cross-examined about this. I found the answers of each on this issue to be less than satisfactory.

68 In cross-examination of these two witnesses it became clear that the contents of their affidavits presented something of a one-sided account of the results of their endeavours. While they emphasised those inquiries that had yielded no or little useful information they did not disclose that they had in fact been able to obtain some significant information. Following cross-examination a somewhat different picture emerged. The solicitors had, for example, obtained statements from a number of officers or former officers of the Salvation Army who had been engaged at Eden Park. One, at least, had given a good deal of detailed information about the conduct of the second defendant, including acceptance of the possibility that the plaintiff may have been physically ill-treated by him.

Material facts: s48(3)(b)(i)

69 When pressed senior counsel for the plaintiff identified a number of what he contended were material facts unascertained by the plaintiff until after 25 March 2002. These were:

(i) that Dr Samuell assessed the plaintiff’s capacity for work to have been reduced, by reason of his psychiatric disability, by 60-70 percent;

(ii) that the correct identification of the entity responsible for the plaintiff’s case at Eden Park, for the purpose of bringing proceedings, was the Salvation Army (South Australian Property Trust);

(iii) features of the plaintiff’s psychological makeup described by Mr Jackson as–

· social isolation

· high levels of shame

· difficulty of developing normal relationships

· very low self-esteem

· extreme difficulty in relating to people

· innate suspicion and defensiveness especially towards men

· lack of follow up services

· need for cognitive behavioural therapy

· need for continuing counselling;

(iv) the failure of the informal settlement conference on 29 August 2002.

70 Whether any one or more of these qualifies as a “material fact” within the meaning of s48(3)(b)(i) may depend, in part at least, upon whether or not the later-introduced sub-ss(3a) and (3b) apply. It is therefore necessary now to consider that question. These subsections were introduced into the Act with effect from 1 May 2004, that is, after the statement of claim was filed. Initially, counsel for the first defendant conceded that they do not have retrospective effect and therefore do not apply in this case. However, on further reflection, counsel retracted that concession, and argued that sub-ss(3a) and (3b) are applicable to the determination of the plaintiff’s claim for extension of time.

71 S48 in its unamended form was considered by the High Court in Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; 163 CLR 628. The High Court held:

“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 justify bringing the action and is of sufficient importance to be likely to have a 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’. Although a definition attributed to the sixteenth century, in our opinion it provides an apt guide to the intention of the legislature in choosing to refer, without any elaboration, to ‘facts material to the plaintiff's case’.”

72 The Court rejected the proposition that, in order for an unascertained fact to be “material” for the purposes of the sub-section, it was necessary that it have some bearing upon the plaintiff’s decision to bring proceedings. There are thus two components to the determination of materiality of a fact: (i) it is relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action; and (ii) it is of sufficient importance to have a bearing on the case.

73 Sub-ss(3a) and (3b) were introduced into the Act by the Law Reform (Ipp Recommendations) Act 2004. Schedule 1 of that Act includes the following clear statement:

“(1) The amendments made by the Law Reform (Ipp Recommendations) Act 2004 … 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 is not diagnosed until after the commencement of the Ipp Recommendations Act. An action is then brought in negligence in which damages are claimed for personal injury. The amendments made by the Ipp Recommendations Act would not affect the determination of liability or the assessment of damages.”

74 Clause (2) is not material to the plaintiff’s claim. It is concerned with the circumstance where the events that give rise to a cause of action predate 1 May 2004, but damage resulting therefrom is not suffered, or is not known to have been suffered, until after that date. That is plainly not the present case. However cl (1) is applicable, and is, in my opinion, in clear terms. On behalf of the first defendant, reliance was placed upon the corollary to a presumption of statutory interpretation to the effect that, in general, a statute will not be construed as taking away or altering the incidence of accrued rights the title to which consists in facts or events which have occurred before its enactment; see, for example, Reid v Reid (1886) 31 Ch D 402; Laurie v Renad [1892] 3 Ch 402; Maxwell v Murphy [1957] HCA 7; 96 CLR 261; Re Rutledge [1973] VR 733; Boral Windows v Industry Research & Development Board [1998] FCA 455; 83 FCR 215. The asserted corollary is that the principle has no application in the absence of “accrued rights”.

75 The argument advanced on behalf of the first defendant was that the general principle did not here apply since the plaintiff had no accrued right that was affected by the changes wrought to the interpretation of “material fact” or to the justice of granting the extension of time sought by sub-ss(3a) and (3b). The argument was put in the following way:

“Rather, the plaintiff’s problem is that, until the court grants him an extension of time in which to sue the first defendant, he has no right to take such action at all.”

76 There is a fallacy in this argument. It misconceives the relevant “accrued right”. It is true that, as at 1 May 2004, the plaintiff did not have any accrued right to take action against the first defendant; what he did have, however, was an accrued right to make an application for extension of time in accordance with the statutory law as it then stood – that is, the construction of “material fact” and the justice of granting an extension as explained in Sola Optical, unmodified by the introduction of sub-ss(3a) and (3b).

77 Accordingly, the principle of statutory construction recognised on behalf of the first defendant continues to apply for the plaintiff’s benefit.

78 I propose to determine the application on the basis that “material fact” is to be construed in accordance with Sola Optical, without reference to sub-s(3a) and that whether it is just to grant the extension is to be determined without reference to the gloss imposed by sub-s(3b).

79 The test of materiality so imposed has been described as “extremely modest, even some would say to the point of absurdity”: Wright v Donatelli (1995) 65 SASR 307.

80 The last of the so-called “material facts” propounded on behalf of the plaintiff can be despatched promptly. It concerns the failure of the informal settlement conference which took place on 29 August 2002. When asked to explain the basis on which it is claimed that the failure of a settlement conference could be a material fact for the purposes of s48, senior counsel replied:

“Because anything which is material to either the appropriateness of commencing litigation or a fact which assists in establishing any of the matters necessary to establish can be, under the Sola Optical test, a material fact. It is a very undemanding test … The fact that the plaintiff is unable to resolve his unlitigated claim is a matter which is material to the commencement of litigation.”

81 This is a distortion of the approach to the construction of “material fact” set out in Sola Optical, expressly relied upon on behalf of the plaintiff. I repeat, in Sola Optical, a fact was said to material 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 justify bringing the cause the action and is of sufficient importance to be likely to have a bearing on the case.”

82 The failure of the mediation is not relevant to any issue to be proved if the plaintiff is to succeed in obtaining an award of damages; and it is not capable of having any bearing on the case which the plaintiff seeks to bring.

83 I reject the failure of the mediation/settlement conference as a “material fact”.

84 It is otherwise, however, in relation to the other “material facts” propounded on behalf of the plaintiff. Most importantly, Dr Samuell’s assessment of the plaintiff’s reduced capacity for work is, within the principles stated in Sola Optical, a relevant “material fact”. It is, indeed, a fact of precisely the same kind as the High Court held to be a “material fact” in that case.

85 So also is the correct identification of the first defendant. It is fundamental to the plaintiff’s case to prove that the entity he names as defendant is in fact the entity responsible for the wrongs he asserts. It is an essential matter to be proved by or on behalf of the plaintiff. It is not to the point that the plaintiff (or his solicitors) could earlier have ascertained that information: s48(3)(b)(i) is concerned only with what was in fact unascertained by the plaintiff. It contains no reference to constructive knowledge.

86 Counsel for the first defendant submitted (and I accept) that the failure of the mediation conference fails to meet the criteria of “material facts”. They made the same submission in respect of the contents of Mr Jackson’s reports, contending that the plaintiff gave no evidence about the reports except to record the fact that he had received them. This is, in my opinion, rather too literal, or compartmentalised, an approach to the evidence.

87 In para 29 of his first affidavit the plaintiff said, in reference to Dr Samuell’s first report:

“This was the first time I had any knowledge or basic understanding of the link between Eden Park and my behaviour and that I was actually suffering a disability.”

88 Dr Samuell’s first report (28 September 2001) postdates Mr Jackson’s first report (1 August 2001) by almost two months. If, prior to receiving Dr Samuell’s report, the plaintiff lacked an understanding of the link between his mental state and his treatment at Eden Park, or the existence of a disability (which was emotional or psychological, not physical), then it is a fair inference that he also lacked an understanding of the substance of Mr Jackson’s report. It is not necessary for the plaintiff explicitly to say, in reference to Mr Jackson’s report, that he did not know (in the sense that he had not articulated in his own mind) that he suffered from social isolation, high levels of shame, and the other matters catalogued by senior counsel for the plaintiff. What matters is that he was not aware that his personality and character features amounted to a disability; nor that there was a link between that disability and his experiences at Eden Park. Those are material facts and facts of which I am prepared to infer the plaintiff was not aware.

89 I am satisfied that these are “material facts” for the purpose of s48(3)(b)(i).

90 The written submissions advanced on behalf of the first defendant purported to challenge the materiality of the various facts propounded on behalf of the plaintiff. However, on analysis, the real challenge generally appears to be to the time at which the facts were ascertained by the plaintiff. Counsel for the first defendant made the following submission:

“21 It is submitted that whether the remaining facts are ‘material’ must be considered in the context of the plaintiff’s clear understanding of the effect of his experiences at Eden Park on him and an abiding intention, from early 2001, to seek compensation from the Army in respect of those experiences.”

91 They then set out a sequence of events which included the fact that the plaintiff had had nightmares, approximately once weekly, about the assaults, from 1964; that he had contacted the Salvation Army several times in about 1971 to complain about his experiences at Eden Park; that, in 1992, he had told his wife about some of the incidents; that in March 1999, he began to consult Dr Kemp in relation to sleeping difficulties resulting from “dreams re boys home”; that during 1999, he began to talk to Mr Jackson about the sexual assaults.

92 These can have no bearing upon whether the facts asserted are or are not “material”. They are, rather, a challenge to the date upon which he ascertained the material facts. But no clear argument was directed to this.

When did the plaintiff ascertain the material facts?

93 The assessment of this question is complicated by the completely unclear way in which the evidence concerning the operation of the Deed was left. As best I can determine, the Deed suspending the running of time came into operation either on 19 October 2001, or on 15 January 2002. When negotiations ceased, bringing to an end that suspension, is quite undefined, but was probably in about the middle of October 2002.

94 The correct identification of the first defendant is clearly a material fact which is not ascertained by the plaintiff until a time within 12 months prior to the filing of the statement of claim. That, alone, is sufficient to bring him within s48(3)(b)(i).

95 Counsel for the first defendant made no point concerning the operation of the Deed although, in written submissions, they assumed that it operated from 15 January 2002 to 29 August 2002. It was, no doubt, because of the operation of the Deed that they focussed upon materiality rather than the dates on which the plaintiff ascertained the material facts.

96 The other material facts upon which reliance is placed – identification of his psychiatric condition, and the extent of its impact upon his normal functioning – came within his knowledge on receipt of the report of Mr Jackson (on or shortly after 1 August 2001) and that of Dr Samuell (on or shortly after 28 September 2001). Apart from the operation of the Deed, these would not qualify as relevantly unascertained facts, because they came within the plaintiff’s knowledge more than 12 months prior to the issue of the statement of claim. However, by reason of the operation of the Deed, the clock on the limitation period was not ticking; accordingly, these, too, are material facts not ascertained by the plaintiff until the relevant time.

97 It was in this context that counsel for the first defendant placed great weight upon Mr Brewin’s opinion (and that of Ms Wilson) that, as early as the May 2001 conference, the plaintiff intended to seek compensation, or held the view that he ought to be monetarily compensated. This is, in my opinion, immaterial to the question of material facts, and to the time in which the plaintiff ascertained them.

98 The mere fact (if it be the fact) that the plaintiff had a view that he ought to be compensated for his treatment while at Eden Park does not bear upon his knowledge of any material fact, nor the timing of that knowledge. It does no more than show that the plaintiff had a sense of grievance which he thought should be resolved by monetary compensation. S48(3)(b)(ii) does not avail the plaintiff.

Conduct of the first defendant: s48(3)(b)(ii)

99 As mentioned above, counsel for the plaintiff also purported to rely upon s48(3)(b)(ii) – that the plaintiff’s failure to institute proceedings within the limitation period was brought about by representations or conduct of the first defendant, or some person he reasonably believed to be acting on its behalf.

100 No argument, written or oral, was directed to supporting that claim.

101 In opening, and during the course of the evidence, senior counsel identified the basis upon which reliance was placed on sub-para (ii) as the Deed that suspended the running of the limitation period, and the settlement negotiations.

102 Recourse to the terms of s48(3)(b)(ii) establishes that the provision is not and cannot be activated by those circumstances. Sub-para (ii) excuses, in appropriate circumstances, the failure of a plaintiff to institute the action within the limitation period, by reason of reliance upon conduct of or on behalf of the defendant. Axiomatically, that conduct must have occurred during the limitation period. The limitation period in this case expired on 15 April 1974. There is no evidence of conduct by or reasonably attributable to the first defendant prior to that date that could conceivably have had any bearing on the plaintiff’s failure to institute action on or before that date.

Is it just to grant an extension of time?

103 The starting point in any contemporary consideration of the discretion to extend a limitation period is the decision of the High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541. The effect of the various judgments is encapsulated in that of Dawson J, in the following passage:

“The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing. The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation.”

104 Toohey and Gummow JJ emphasised that the discretion is a discretion to grant, not a discretion to refuse, the extension, and that the onus lies upon the applicant. Their Honours also held, however, that an evidentiary onus lies upon their prospective defendant to raise any consideration telling against the exercise of the discretion.

105 Their Honours then identified “the real question” as:

“… whether the delay has made the chances of a fair trial unlikely.”

If the delay has not made the chances of a fair trial unlikely, then, their Honours held, there is no reason why the discretion should not be exercised in favour of the respondent.

106 It was in the judgment of McHugh J that the most powerful analysis of the legislation appears. Having held, in concurrence with the other members of the Court, that the applicant retains the onus of persuading the Court that justice requires the exercise of the discretion in his or her favour, his Honour said:

“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. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo [(1972) 407 US 514 at 532] ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”

107 Brisbane South was decided in respect of the Queensland counterpart of s48, which is not in identical terms, but which similarly confers, in the event that foundational matters (ignorance of material facts of a decisive character) are made out, a general discretion to extend the limitation period.

108 It is a case that has been applied many times. I was referred, by both parties, to a number of occasions on which the question has come before courts of this and other states. But these represent no more than the application of now established principles to a particular fact situation. They do not further elucidate the principles stated in Brisbane South.

109 For example, particular reliance was placed on behalf of the plaintiff on the decision of Patten AJ in Ellis v Pell [2006] NSWSC 109. On examination, however, there is no statement of principle in Ellis that casts any additional light on Brisbane South. Patten AJ analysed the evidence of prejudice in that case and concluded, on the facts of the case, that a fair trial could be held, even if it were less than perfect.

110 Ellis is certainly not authority for the proposition (as was put by counsel for the plaintiff) that a failure by the potential defendant to investigate a potential plaintiff’s complaints overcomes prejudice that arises subsequently. That submission was put in this context. In Ellis the applicant complained of having been sexually assaulted by a priest of the Roman Catholic Church between 1974 and 1979, when he was 13 to 18 years of age. He made his first complaint to the Church in June 2002. it was not investigated until at least a year later. In 1994 the priest had suffered a cerebral stroke. Following the stroke his cognitive function was impaired. By June 2003 he was not able to give instructions to the solicitors representing the Church, handling the investigation of Mr Ellis’ complaint. He died in October 2004. Prima facie, such a circumstance would be of significant weight in the evaluation of prejudice. However, by reason of other evidence, Patten AJ concluded that the Church had long before had the opportunity of investigating allegations of a similar kind against the priest. That, as I read Patten AJ’s judgment, was a factor in the overall assessment of whether it was just to grant the extension sought. In the result, his Honour did extend the time, and it is, no doubt, for that reason that heavy reliance was placed upon the decision on behalf of the present plaintiff.

111 In any event, the submission to which I referred (that a failure to investigate overcomes evidence of prejudice) depends upon the drawing of an analogy between the present case and that of Ellis. That analogy is not available. Despite my concerns, earlier expressed, about the candour (or lack of it) of some of the evidence, the first defendant has adduced a considerable body of evidence to show that it has undertaken quite extensive investigations. It has sought (with limited success only) to follow up individuals named by the plaintiff; it has sought to locate the psychiatrist, not named by the plaintiff, by whom he asserts he was treated; it has unsuccessfully sought the records of the high school attended by the plaintiff; it has unsuccessfully sought information (other than from the plaintiff) confirming his employment history. These are not insignificant matters.

112 I accept that if an extension of time is granted, the first defendant will be hampered in the extent to which it will be able to meet the plaintiff’s claims – both as to events at Eden Park, and as to his post Eden Park history going to the extent of disability (if any) and to the quantification of damages.

113 However, I also bear in mind the rather different picture that emerged following the cross-examination of Messrs Brewin and Doran.

114 In cases of sexual assault, the problems faced by the first defendant are not unfamiliar. Persons are regularly accused, in the criminal jurisdiction, of sexual assault or other misconduct many years after the events alleged. The delay in bringing proceedings and the consequent impairment of the person accused to marshal evidence in defence is not seen as a reason to prevent the prosecution proceeding. Instead, the criminal law has devised a means of redressing the unfairness. Juries routinely are directed, explicitly, of the difficulties cast in the way of the accused by reason of the delay in pursuing the prosecution: see Longman v The Queen [1989] HCA 60; 168 CLR 79.

115 If a jury can be entrusted, in weighing evidence in a criminal trial in the light of these considerations, then surely a judge sitting alone in a civil trial can be expected to undertake the same tasks. Indeed, one would expect that it would be almost instinctive. The inability of the first defendant to obtain material for cross-examination, or to adduce evidence in response to the evidence called on behalf of the plaintiff, would be factors relevant to the assessment of credibility, and to the weight to be given to any item of evidence, and, ultimately, to whether the plaintiff has established that justice favours the granting of the extension.

116 I do not suggest that analogy with criminal trials constitute a complete answer to the prejudice alleged to have been suffered by the first defendant. But potential amelioration of prejudice is one consideration to be taken into account in determining the overall justice of granting or refusing the extension sought.

117 It is also necessary to analyse with some particularity what the first defendant claims to have lost.

118 Counsel for the first defendant submitted that it was prejudiced in three specific ways:

(i) in relation to determining whether the alleged abuse occurred. It will be remembered that the plaintiff alleged abuse of two kinds – at the hands of other residents (some of which he claimed to have disclosed to the second defendant); and at the hands of the second defendant himself;

(ii) in relation to the absence of records relating to his medical or psychological condition in the intervening years – for example, his consultation with a “Mann Street Gosford” psychiatrist;

(ii) in relation to the absence of records of his psychiatric history.

119 The first of these is, in my view, somewhat disingenuous. I was told, without dissent, that the second defendant faced criminal charges in South Australia, and that they were due to be tried in November 2006. The allegations made by plaintiff constitute the basis of some of those charges. And in a letter to the plaintiff of 20 August 2001 (see [38]) above) Mr Brewin said that his allegations had been put to the second defendant and others.

120 There was no evidence of what the second defendant, or others, had said to Mr Brewin.

121 It is likely that there will be significant material available to the first defendant arising out of the investigation and prosecution of the criminal charges.

122 The asserted prejudice arising in the categories numbered (ii) and (iii) above, are, in my opinion, really of the same ilk. I accept that, in some circumstances, a complete psychiatric history may cast considerable light, and even considerable doubt, upon assertions made by a plaintiff. However the psychiatric profession is practised in evaluating histories recounted by patients or potential plaintiffs. The absence of such records is not, in my opinion, sufficient of itself, or in combination with any other matters, to enable a conclusion that a trial of the plaintiff’s allegations could or would not be fair.

123 Having regard to the investigations undertaken by “the Salvation Army” for the purposes of the South Australian Commission of Inquiry and the Senate Committee Inquiry, and to the more complete picture of the results of inquiries made on behalf of the first defendant that emerged after cross-examination, I am satisfied that the prejudice to the first defendant is not nearly as great as the solicitors would have had me believe. Having said that, I accept, as I have already mentioned, that a degree of prejudice is inevitable. The real question is, as posed by Toohey and Gummow JJ in Brisbane South, whether the delay has made the chances of a fair trial unlikely.

124 I conclude that it has not. In my opinion, the first defendant will not be precluded from mounting an adequate defence to the plaintiff’s claim. I accordingly propose to grant the extension sought.

125 There remain two further matters.

Estoppel

126 On behalf of the plaintiff, a further matter was raised. It was that, by reason of the statements made by Mr Dalziel in the Four Corners programme, extracted above, the first defendant is estopped from relying upon the limitation defence. This submission can be disposed of quickly. It was based upon the decision of the High Court in The Commonwealth of Australia v Verwayen [1990] HCA 39; 170 CLR 394, which was said to be relevantly indistinguishable from the present case. That I do not accept. There are very significant distinguishing features between the factual bases of the two cases.

127 There were, indeed, significant divergences in the approach taken by the members of the Court to the determination of the issues. Those divergences need not detain me at present.

128 Verwayen concerned the notorious collision in 1964 between two Australian Navy ships, the Melbourne and the Voyager. Mr Verwayen was one of many who sought to claim damages for personal injury he alleged he suffered as a result of the collision. He did not commence proceedings until many years after the expiration of the relevant limitation period (under Victorian legislation). The solicitors who acted for him also represented many other claimants. They corresponded with solicitors for the Commonwealth and with the then Minister for Defence. In relation to a different claimant, both the solicitors and the Minister had given written assurances that, in this case, the limitation defence would not be invoked. Before issuing Mr Verwayen’s writ, the solicitors sought an assurance that, in his case also, the defence would not be invoked. Before receiving a reply, they issued the writ. Subsequently, the assurance was given. The Commonwealth filed a defence to Mr Verwayen’s claim. It did not then raise the limitation defence. It was not until 18 months after the writ was issued, and 14 months after the defence was filed, that an amended defence, pleading expiration of the limitation period, was filed.

129 In those circumstances, three members of the High Court held that the doctrine of estoppel operated to preclude the Commonwealth’s reliance upon the defence. Two members of the Court (Toohey and Gaudron JJ) held that the Commonwealth had waived its right to rely upon the defence and was bound by that waiver.

130 In the decision of Mason CJ, Brennan, Deane, Dawson and McHugh JJ, the concept of reliance upon a representation as fundamental was central to the establishment of an estoppel: this is so even where, as in the case of Mason CJ and Brennan and McHugh JJ, the application of the stated principles would have resulted in a different outcome, the rejection of an estoppel.

131 Deane and Dawson JJ each inferred that Mr Verwayen had in fact relied upon the representations made to him by the Commonwealth, notwithstanding that his writ had been filed before the written assurances were given. Deane J concluded that Mr Verwayen had prepared and prosecuted his action, had expended both time and money thereon; had subjected himself to the stress, anxiety and inconvenience inevitably associated in the pursuit of the proceedings.

132 Dawson J concluded to similar effect: he held that the Commonwealth had continued to encourage Mr Verwayen in his belief that there would be no insistence upon the statute by its joining with him in applications for an expedited hearing upon the question of damages only. Indeed, his Honour held that:

“There can be no question that [Mr Verwayen] acted upon the assumption that [the Commonwealth] would not exercise its right to claim that the action was statute barred”

133 The facts in the present case do not support a parallel conclusion. There is, indeed, no evidence that the plaintiff ever became aware of Mr Dalziel’s statements; there is no evidence that he in any way relied upon them, either in commencing or in pursuing his claim or his application; there is no evidence that, apart from these statements by Mr Dalziel, either the plaintiff or his solicitors were ever led to into a belief that the first defendant would not invoke the limitation defence. I reject the submission that the first defendant is estopped from asserting a defence under the Act.

The decision in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116

134 Counsel for the plaintiff placed heavy reliance upon the decision of the Court of Appeal in Nowlan v Marson Transport Pty Ltd. It was in anticipation of that submission that the correspondence of Ms Slape seeking explication of the basis of the first defendant’s opposition to the extension of time was written. In my opinion the reliance upon the decision is misconceived. It has had no bearing upon my conclusion that the extension of time should be granted.

135 Nowlan was a case in which an applicant (Mr Nowlan) had sought an extension of time for commencing proceedings under the Motor Accidents Act 1988. He failed at first instance.

136 In allowing an appeal, Heydon JA, with whom Mason P and Young CJ in Eq agreed, said:

“Where the respondent to an application fails to signal a prima facie case of prejudice, either by evidence to be tendered by the respondent, or by an indication that some part of the applicant's evidence will be relied on to raise a prima facie case of prejudice, it will not be possible for the applicant to deal with the point satisfactorily. Here the respondent was able to point to material in the applicant's evidence raising the possibility of prejudice … But that possibility was capable of being rebutted by evidence. The fact that that possibility was not availed of by the applicant in view of the respondent's failure to give prior notice of the point successfully taken creates an injustice justifying reception of the evidence in this Court.”

137 Heydon JA was critical of the approach taken to the application, as was Young CJ in Eq who said:

“In a culture where the plaintiff may be ambushed, it is incumbent on the plaintiff's solicitors to minimise that possibility by seeking to confine the defendant by forcing the defendant to state what his or her grounds of opposition to the plaintiff's motion are. Ordinarily, if this is not clear on the material filed, a letter should be written to the defendant's solicitors in good time before the motion is heard and complaints made to the judge if no reasonable response is received.”

138 The circumstances of the two cases are not comparable. In Nowlan the plaintiff had no notice, and no way of knowing, what point was to be taken against him arising out of his own evidence. It was that of which the Court was critical.

139 Here the affidavit evidence filed on behalf of the first defendant made it perfectly plain, as the solicitors for the first defendant said, what the basis of the opposition was. It is not necessary for solicitors then to spell out, in some other format, what has already been spelled out in affidavit evidence. There is, here, no question of ambush.

140 In any event, failure to spell out a basis for opposition does not go to any relevant question for decision. The remedy for a failure to comply with what is required by Nowlan is to seek, prior to hearing, orders for compliance.

141 As I have indicated, the decision in Nowlan has no played no part in the conclusion I have reached.

142 The orders I make are:

(1) Pursuant to s48 of the Limitation of Actions Act 1936 (SA) the time for commencement of proceedings against the first defendant is extended to 25 March 2003;

(2) The first defendant is to pay the plaintiff’s costs of the application.

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