Simmons (a pseudonym) v Wheeler (a pseudonym) (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Simmons (a pseudonym) v Wheeler (a pseudonym) (No 2)

Citation: 

[2024] ACTSC 51

Hearing Date: 

29 February 2024

Decision Date: 

29 February 2024

Before:

Mossop J

Decision: 

See [16]

Catchwords: 

PRACTICE AND PROCEDURE – JURISDICTION – Allegations of historic sexual and physical abuse – plaintiffs and second and third defendants all children at the time of alleged abuse – where alleged conduct said to have taken place entirely in Queensland – Queensland limitation laws apply as part of the substantive law of the location of the tort

PRACTICE AND PROCEDURE – LIMITATION – Limitation of time to bring claim – applications to amend defences to include defence of statutory limitation by s 11 of Limitation of Actions Act 1974 (QLD) – whether s 11A of same Act defeats defence of s 11 statutory limitation – question better answered at trial and not at preliminary stage – applications allowed

Legislation Cited: 

Court Procedures Act 2004 (ACT), s 5A
Limitation Act 1985 (ACT), s 56
Limitation of Actions Act 1974 (Qld), ss 11, 11A

Cases Cited: 

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Simmons (a pseudonym) v Wheeler (a pseudonym) [2023] ACTSC 191

Parties: 

Maddie Simmons (a pseudonym) (First Plaintiff)

Jenny Simmons (a pseudonym) (Second Plaintiff)

Geoffrey Wheeler (a pseudonym) (First Defendant)

Paul Mitchell Simmons (a pseudonym) (Second Defendant)

Jeremy Connor (a pseudonym) (Third Defendant)

Representation: 

Counsel

T Crispin ( Plaintiffs)

D Prail (First Defendant)

A Costin (Second Defendant)

W Sharwood (Third Defendant)

Solicitors

InPrivate Law ( Plaintiffs)

Prail Lawyers (First Defendant)

Somerville Laundry Lomax Solicitors (Second Defendant)

Taylor Rose (Third Defendant)

File Number:

SC 363 of 2022

MOSSOP J:

1. These proceedings are proceedings in tort which relate to allegations of sexual and physical assault alleged to have been committed between 1969 and 1980. All of the parties are, as a result of orders made by Curtin AJ, identified by pseudonyms: Simmons (a pseudonym) v Wheeler (a pseudonym) [2023] ACTSC 191.

2. The sexual and physical assaults alleged to have been inflicted on the first and second plaintiffs by the second and third defendants are alleged to have occurred between 1975 and 1980. In those years, the ages of the relevant parties were:

   (a)first plaintiff: 9-14 years;

   (b)second plaintiff: 8-13 years;

   (c)second defendant:10-15 years; and

   (d)third defendant: approximately 10-15 years.

3. The plaintiffs are the second defendant’s stepsisters.

4. It is common ground that the events alleged in the pleadings would have occurred in Queensland and, as a consequence, Queensland limitation laws will apply, as they are part of the substantive law of the place of the alleged tort: Limitation Act 1985 (ACT), s 56.

5. The second and third defendants have applied by applications in proceeding dated 16 October 2023 and 10 November 2023 for leave to amend their defences so as to plead s 11 of the Limitation of Actions Act 1974 (Qld). That is the generally applicable limitation provision relating to personal injury. It…