Simmons (a pseudonym) v Wheeler (a pseudonym) (No 2)
[2024] ACTSC 51
•29 February 2024
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 |
Cases Cited: | Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 |
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:
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.
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.
The plaintiffs are the second defendant’s stepsisters.
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.
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 imposes a three-year limitation period. The applications must be considered in the context of Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 and the requirements of s 5A of the Court Procedures Act 2004 (ACT).
The plaintiffs have opposed the granting of leave to amend because of the existence of s 11A of the same Queensland Act. That provision was inserted following the Royal Commission into Institutional Responses to Child Sexual Abuse, which removed any limitation period for “[a]n action for damages relating to the personal injury of a person resulting from the abuse of the person when the person was a child”. The term “abuse” is defined to mean:
(a)sexual abuse or serious physical abuse of the child; or
(b)psychological abuse of the child perpetrated in connection with sexual abuse or serious physical abuse of the child.
The plaintiffs’ contention is, therefore, that, because of the existence of s 11A, the claim that s 11 applies is manifestly hopeless and the court should not permit the amendment. On the other hand, the second defendant and the third defendant each contend that s 11A should be read down in a way that precludes its application to child‑on‑child physical or sexual abuse. As firmly pointed out by counsel for the plaintiffs, that is a contention which is difficult to square with the language of the provision, but the submission was developed by the second defendant by reference to the purpose of the provision and to extrinsic materials which reflect that purpose. The second defendant submitted that the language of the provision should not be interpreted in a way that meant, for example, that if two 10-year-olds had a school playground fight in 1970 in which one suffered some substantial injury, there should be no limitation on a potential claim so that it might be sued upon 50 or 60 years later.
Notwithstanding the enthusiasm with which the parties have approached the generation of affidavit material, the development of their arguments as to the proper interpretation of the provision, and the lack of a frank explanation from the solicitors for the second and third defendants as to how and why the issue came only to be raised at this stage of the proceedings, in my view this is a clear case in which the amendment should be permitted and the question of statutory interpretation determined in the context of findings of fact made at the trial. This is for six reasons.
First, although the defendants’ argument does not appear to be strong, it is not so obviously hopeless as to allow it to be disposed of in circumstances where it was not crystallised by pleadings and where the facts have not been found.
Second, the pleading of the limitation period will not affect the conduct of the trial. The plaintiffs will inevitably have to file a reply, pleading the material facts necessary for the application of s 11A and the application of that provision. Apart from that, the matter will be one which involves the determination of a question of law in the context of facts that have been found.
Third, the issue is one which is, or may be, fact dependent for the following reason. If the language of s 11A is taken at face value, then there is no limitation period and s 11 does not apply. However, one of the possibilities raised in the submissions is that s 11 may be able to apply to child-on-child assaults, but only where there is some abusive component in the form of a power imbalance. If that was the proper interpretation, then the application of s 11A would be dependent upon findings of fact made about the relationship between the children at the time. That would indicate that the matter is one which should not be disposed of in the abstract or on particular assumptions about the ultimate findings of fact.
Fourth, even though it is not proposed that the matter be determined as a separate question, practically speaking, a determination that the second and third defendants’ contention was unarguable and hence should not be permitted to be included by amendment would preclude them from running that argument. It would, therefore, be a matter which had the potential to generate an application for leave to appeal, and fragment and delay the ultimate determination of the proceedings.
Fifth, a hearing date has not yet been set, and the making of the amendment will not materially affect the preparation for, or timing of, a trial.
Sixth, even though the addition of a further issue in the proceedings may involve further stress for the plaintiffs, it will not delay the proceedings or significantly change the evidence at trial. The second and third defendants have indicated, by their counsel, that they will not lead additional expert evidence targeted at any issue arising from the application of s 11A, beyond that which is presently contemplated in any event (namely, examination of the plaintiffs by a psychologist or psychiatrist).
In those circumstances, it is appropriate to grant leave to amend the pleadings. In circumstances where I consider that a pragmatic approach consistent with getting to the substance of the case as soon as possible would have tended against the substantial investment of resources in an interlocutory dispute, I consider that the appropriate outcome in relation to costs is that the costs of this application be costs in the cause.
The orders of the Court are:
1.Leave is granted to the second defendant to file an amended defence in the form annexed to the affidavit of Nathan Andrew Job affirmed 16 October 2023 and marked NAJ-1.
2.Leave is granted to the third defendant to file an amended defence in the form annexed to the affidavit of Johannes Hermanus Jordaan sworn 10 November 2023 and marked JHJ-1.
3.The plaintiffs must file and serve any reply by 14 March 2024.
4.The defendants must file and serve any rejoinder to the plaintiffs’ reply by 28 March 2024.
5.The second and third defendants are to pay the costs of their respective applications in proceeding, but those costs are not to be assessed until the proceedings end.
6.Direct that each party to file and serve a Listing Hearing Questionnaire by close of business on Friday, 1 March 2024.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 26 March 2024 |
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