SMN v WEM - [2017] QSC 242

SUPREME COURT OF QUEENSLAND

CITATION:

SMN v WEM [2017] QSC 242

PARTIES:

SMN

(plaintiff)

v
WEM

(respondent)

FILE NO/S:

No S886 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

30 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2017

JUDGE:

Davis J

ORDERS:

1.    That the plaintiff have leave to proceed on all causes of action pleaded in the amended statement of claim.

2.    The defendant’s application to stay or dismiss the claim is dismissed.

3.    By 10 November 2017 the plaintiff file and serve a further amended statement of claim, such amendments to be limited to allegations relating to quantum.

4.    By 10 November 2017 the parties agree on a mediator for the claim.

5.    By 8 December 2017 the defendant file and serve a further amended defence.

6.    By 20 December 2017 the plaintiff file and serve a reply to any further amended defence.

7.    The plaintiff file and serve a statement of loss and damage within 28 days of the close of pleadings.

8.    Within seven days of service of the statement of loss and damage the defendant provide the plaintiff a list of three experts to assess the plaintiff for medico-legal purposes.

9.    The plaintiff pay the defendant’s costs of the application for leave to proceed and leave to amend the statement of claim on the standard basis.

10. There be no order as to costs of the defendant’s application to dismiss or stay the action.

11. The proceedings be transferred to the District Court at Brisbane.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – OUTSIDE OR INVOLVING LIMITATION PERIOD – where the plaintiff claimed for damages for alleged sexual assaults – where the plaintiff sought to include a new cause of action – where the statutory limitation period for that cause of action has been removed and the cause of action was no longer time-barred – whether leave to make an amendment under r 376(4) of the Uniform Civil Procedure Rules 1999 is required, and if so, whether leave should be granted

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DORMANT PROCEEDINGS – where there was no step taken in the proceeding for more than two years – where the plaintiff sought leave to proceed after eight years with no step in the proceeding – whether leave to proceed under r 389(2) of the Uniform Civil Procedure Rules 1999 should be granted

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where the plaintiff sought leave to proceed after eight years with no step in the proceeding – where the delay was not by fault of the defendant – where the defendant made an application to have the proceeding dismissed for want of prosecution – whether the proceeding should be dismissed under r 280 of the Uniform Civil Procedure Rules 1999 for want of prosecution

PROCEDURE – STATE…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading SMN v WEM

Details

AGLC: SMN v WEM [2017] QSC 242
Case: [2017] QSC 242
Decision Date: 30 October 2017

CaseChat Overview and Summary

The plaintiff, SMN, sought damages from the defendant, WEM, for alleged sexual assaults that occurred when she was a minor and he was her karate teacher. The defendant had previously pleaded guilty to related criminal charges. The plaintiff sought to amend her statement of claim to include additional allegations of sexual acts and to include a new cause of action for "vaginal injury," which had previously been time-barred but was no longer subject to a statutory limitation period. The defendant opposed the amendment and applied to dismiss the proceeding for want of prosecution, or alternatively to stay it, arguing the amendment was an abuse of process.

The court considered whether the plaintiff needed leave to amend her statement of claim under Rule 376(4) of the Uniform Civil Procedure Rules 1999, whether the proceeding should be dismissed for want of prosecution under Rule 280, and whether the proceeding should be stayed as an abuse of process under inherent jurisdiction. The court found that the plaintiff did not need leave to amend her statement of claim as the limitation period for the new cause of action had been removed. The court also found that the proceeding should not be dismissed for want of prosecution as the delay was not due to the defendant's fault, but the court ordered the parties to mediate and set a timetable for further amendments to the pleadings and expert reports. The proceeding was not stayed as an abuse of process.

The court dismissed the defendant's application to stay or dismiss the claim. It granted the plaintiff leave to proceed on all causes of action pleaded in the amended statement of claim. The court ordered the plaintiff to file and serve a further amended statement of claim by 10 November 2017, limited to allegations relating to quantum, and ordered the parties to agree on a mediator for the claim by that date. The defendant was to file and serve a further amended defence by 8 December 2017, and the plaintiff was to file and serve a reply to any further amended defence by 20 December 2017. The plaintiff was to file and serve a statement of loss and damage within 28 days of the close of pleadings. The defendant was to provide the plaintiff a list of three experts to assess the plaintiff for medico-legal purposes within seven days of service of the statement of loss and damage. The plaintiff was to pay the defendant's costs of the application for leave to proceed and leave to amend the statement of claim on the standard basis. The proceedings were transferred to the District Court at Brisbane.

Orders

Orders of the court

1. That the plaintiff have leave to proceed on all causes of action pleaded in the amended statement of claim.

2. The defendant’s application to stay or dismiss the claim is dismissed.

3. By 10 November 2017 the plaintiff file and serve a further amended statement of claim, such amendments to be limited to allegations relating to quantum.

4. By 10 November 2017 the parties agree on a mediator for the claim.

5. By 8 December 2017 the defendant file and serve a further amended defence.

6. By 20 December 2017 the plaintiff file and serve a reply to any further amended defence.

7. The plaintiff file and serve a statement of loss and damage within 28 days of the close of pleadings.

8. Within seven days of service of the statement of loss and damage the defendant provide the plaintiff a list of three experts to assess the plaintiff for medico-legal purposes.

9. The plaintiff pay the defendant’s costs of the application for leave to proceed and leave to amend the statement of claim on the standard basis.

10. There be no order as to costs of the defendant’s application to dismiss or stay the action.

11. The proceedings be transferred to the District Court at Brisbane.

Background

Background to the litigation

The defendant applies under r 280 of the Rules for the proceedings to be dismissed for want of prosecution, or alternatively, that the proceedings be permanently stayed.Background The plaintiff was born on 4 February 1985. She was therefore between the ages of 12 and 13 years in the relevant period, which was December 1997 to May 1998. Over that period the defendant was the plaintiff’s karate teacher and maintained an unlawful sexual relationship with her. While the fact that there were sexual acts performed by the defendant upon the plaintiff is not contested on the current pleadings, the extent and nature of the sexual acts are in contest. In due course, the defendant was charged with four offences against the Criminal Code 1899 (Qld); one of maintaining an unlawful sexual relationship with a child with a circumstance of aggravation[3] and three counts of unlawful carnal knowledge of a child under 16 years.[4][3] Criminal Code, s 229B.[4] Criminal Code, s 215. On 11 March 1999, the defendant pleaded guilty to the four charges and was sentenced to four years’ imprisonment on the charge of maintaining a sexual relationship with a child with a circumstance of aggravation, and three years’ imprisonment on each of the charges of unlawful carnal knowledge. Those sentences were ordered to be served concurrently and ordered to be suspended after the defendant had served a period of nine months’ imprisonment, for an operational period of five years.[5] [5] Penalties and Sentences Act 1992 (Qld) s 144. The allegations made in the original statement of claim essentially mirror the particulars of the offending of the defendant which was the subject of the charges on the indictment to which he pleaded guilty. The amended statement of claim contains allegations of many more sexual acts than were alleged in the original statement of claim. In particular, it is now alleged that intercourse occurred on approximately 20 occasions, that the defendant procured the plaintiff to perform oral sex on him, that he used threats and force against the plaintiff and that he took indecent photographs of her. In the original statement of claim there were allegations that the defendant touched the plaintiff on the breast and the vagina with his hands and had the plaintiff touch the defendant’s penis and masturbate him. The amended statement of claim alleges many more of those acts. As already observed, the amended statement of claim alleges not only, “psychiatric/psychological injuries” but also “vaginal injury”. An amended defence was filed on 6 November 2008, the effect of which was to make admissions consistently with the defendant’s pleas of guilty to the criminal charges. Save for the allegation that he took indecent photographs of the plaintiff, the defendant denied all the additional allegations in the amended statement of claim. He admitted the allegations of taking photographs. Quantum was also put in issue. The amended statement of claim could not have come as a great surprise to the defendant because on 8 April 2008 an order was made by her Honour Judge Clare in the District Court in favour of the plaintiff against the defendant for criminal compensation. On that application the further allegations were made.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	SMN v WEM [2017] QSC 242
PARTIES:	SMN (plaintiff) v WEM (respondent)
FILE NO/S:	No S886 of 2006
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	30 October 2017
DELIVERED AT:	Brisbane
HEARING DATE:	20 October 2017
JUDGE:	Davis J
ORDERS:	1. That the plaintiff have leave to proceed on all causes of action pleaded in the amended statement of claim. 2. The defendant’s application to stay or dismiss the claim is dismissed. 3. By 10 November 2017 the plaintiff file and serve a further amended statement of claim, such amendments to be limited to allegations relating to quantum. 4. By 10 November 2017 the parties agree on a mediator for the claim. 5. By 8 December 2017 the defendant file and serve a further amended defence. 6. By 20 December 2017 the plaintiff file and serve a reply to any further amended defence. 7. The plaintiff file and serve a statement of loss and damage within 28 days of the close of pleadings. 8. Within seven days of service of the statement of loss and damage the defendant provide the plaintiff a list of three experts to assess the plaintiff for medico-legal purposes. 9. The plaintiff pay the defendant’s costs of the application for leave to proceed and leave to amend the statement of claim on the standard basis. 10. There be no order as to costs of the defendant’s application to dismiss or stay the action. 11. The proceedings be transferred to the District Court at Brisbane.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – OUTSIDE OR INVOLVING LIMITATION PERIOD – where the plaintiff claimed for damages for alleged sexual assaults – where the plaintiff sought to include a new cause of action – where the statutory limitation period for that cause of action has been removed and the cause of action was no longer time-barred – whether leave to make an amendment under r 376(4) of the Uniform Civil Procedure Rules 1999 is required, and if so, whether leave should be granted PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DORMANT PROCEEDINGS – where there was no step taken in the proceeding for more than two years – where the plaintiff sought leave to proceed after eight years with no step in the proceeding – whether leave to proceed under r 389(2) of the Uniform Civil Procedure Rules 1999 should be granted PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where the plaintiff sought leave to proceed after eight years with no step in the proceeding – where the delay was not by fault of the defendant – where the defendant made an application to have the proceeding dismissed for want of prosecution – whether the proceeding should be dismissed under r 280 of the Uniform Civil Procedure Rules 1999 for want of prosecution PROCEDURE – STATE…