SW v State of New South Wales
[2010] NSWSC 966
•31 August 2010
CITATION: SW v State of New South Wales [2010] NSWSC 966 HEARING DATE(S): 25 November 2009, 26 November 2009, 27 November 2009
JUDGMENT DATE :
31 August 2010JUDGMENT OF: Johnson J at 1 DECISION: 1. The Plaintiff is granted leave nunc pro tunc under ss.4 and 5 Felons (Civil Proceedings) Act 1981 to institute proceedings against the Defendant.
2. The question posed for separate determination under rule 28.2 Uniform Civil Procedure Rules 2005 is as follows: “So far as the cause of action that the Plaintiff alleges is concerned, was the Plaintiff under a disability after attaining the age of 18 years, and, if so, did that disability last sufficiently long for these proceedings to have been brought within the applicable limitation period.”
In answer to that question, on the balance of probabilities, the Plaintiff was not under a disability after attaining the age of 18 years, but even if he was subject to some disability thereafter, the applicable limitation period expired at the latest in January 2003, so that the proceedings were not brought within the applicable limitation period.
3. The parties will be heard as to consequential orders, including costs, and with respect to the question of publication of names in the judgment where pseudonyms have been used.CATCHWORDS: PRACTICE AND PROCEDURE - application for leave under Felons (Civil Proceedings) Act 1981 - plaintiff serving sentences of imprisonment for serious indictable offences - claim for damages against State of New South Wales - plaintiff sexually abused as a minor - claim of negligent failure by YACS in approving plaintiff’s residence and employment with perpetrator - whether prima facie ground for action - faint reliance upon pleaded claim - principal reliance upon unpleaded claim arising from the evidence - leave granted - LIMITATION OF ACTIONS - sexual abuse of plaintiff between 1979 and 1983 - Statement of Claim filed in 2005 - determination of separate question - whether limitation period suspended by disability - mental condition and imprisonment - whether plaintiff incapable of or substantially impeded in management of his affairs in relation to cause of action against State of New South Wales - held limitation period expired before filing of Statement of Claim LEGISLATION CITED: Felons (Civil Proceedings) Act 1981
Adoption of Children Act 1965
Adoption Act 2000
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Limitation Act 1969
Crown Proceedings Act 1988
Child Welfare Act 1939
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005CATEGORY: Procedural and other rulings CASES CITED: R v D and E [2000] NSWSC 646; 26 Fam LR 310
DC v State of New South Wales [2010] NSWCA 15
State of New South Wales v Bennie [2005] NSWCA 172
Guthrie v Spence [2009] NSWCA 369
Jol v State of New South Wales (1998) 45 NSWLR 283
Vorhauer v NSW Minister for Health [2005] NSWSC 797
Ford v Simes [2009] NSWCA 351
Ciantar v State of New South Wales [2008] NSWSC 191
SB v State of New South Wales [2004] VSC 514; 13 VR 527
Brimson v Rocla Concrete Pipes Limited [1982] 2 NSWLR 937
Rosenberg v Percival [2001] HCA 18; 205 CLR 434
Shire of Gin Gin v Coombe [2009] WASCA 92; 52 MVR 382
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
TC v State of New South Wales [2001] NSWCA 380
Morris v State of New South Wales [2005] NSWDC 10
Kotulski v Attard [1981] 1 NSWLR 115
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256
D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; 223 CLR 1
Williams v Spautz [1992] HCA 34; 174 CLR 509
Karaagac v GRE Insurance Limited [1989] NSWCA 116PARTIES: SW (Plaintiff)
State of New South Wales (Defendant)FILE NUMBER(S): SC 2005/269258 COUNSEL: Mr DW Elliott (Plaintiff)
Mr CF Hodgson (Defendant)SOLICITORS: Gerard Malouf & Partners (Plaintiff)
Crown Solicitor's Office (Defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONJohnson J
31 August 2010
JUDGMENT2005/269258 SW v State of New South Wales
1 JOHNSON J: The Plaintiff, SW, applies for leave to bring proceedings against the Defendant, the State of New South Wales, asserting that the Defendant is liable to him for damages in negligence in circumstances where he suffered sexual abuse at the hands of a third party, LE, in the period 1979 to 1983. The Plaintiff alleges that the negligence of the Defendant, through the Department of Youth and Community Services (“YACS”), placed him and left him in a position where he was sexually abused by LE.
2 As the Plaintiff is serving a sentence of imprisonment following conviction for a serious indictable offence, leave to institute civil proceedings is required under the Felons (Civil Proceedings) Act 1981.
Use of Pseudonyms in Judgment
3 Reference will be made in this judgment to adoption proceedings in 1971 concerning the Plaintiff, together with Children’s Court proceedings concerning him in 1978, 1979, 1982 and 1983 and criminal proceedings against LE in and after March 1983 concerning sexual abuse of the Plaintiff.
4 In the course of preparing this judgment, I have considered whether the Plaintiff, his adopting parents, IW and KW, and LE should be identified. Adoption applications are heard in private and the Court usually imposes a restriction on publication of reasons for decision: R v D and E [2000] NSWSC 646; 26 Fam LR 310 at 311-312 [1]-[3]. Sections 53, 64 and 67 of the now repealed Adoption of Children Act 1965 (which governed the 1971 adoption proceedings) made special provision to restrict availability of information about adoption proceedings. Sections 180 and 180A Adoption Act 2000 restrict the publication of material identifying persons affected by an adoption application without authorisation of the Court. In addition, the provisions now contained in Division 3A of Part 2 of the Children (Criminal Proceedings) Act 1987 (ss.15A-15G), in effect, restrict publication of the name of a child offender or child victim: DC v State of New South Wales [2010] NSWCA 15 at [20]-[21]. As the judgment will reveal, the Plaintiff was a child offender. In addition, he was a child victim of sexual abuse. Further, s.578A Crimes Act 1900 prohibits the publication of anything identifying a victim of a prescribed sexual offence.
5 I have determined that judgment should be given using pseudonyms, without publication of the names of persons which may identify, or tend to identify, the Plaintiff and his adopting parents. Given the association between the Plaintiff and LE, publication of the name of LE may serve to identify the Plaintiff, so I have referred to LE by a pseudonym as well. After judgment is published in this form, I will give the parties an opportunity to make submissions as to whether any persons described by pseudonym should be identified.
Issues for Determination
6 The Plaintiff sought to commence the present proceedings by filing a Statement of Claim in this Court on 1 April 2005.
7 The proceedings have a protracted interlocutory history. There were numerous appearances before the Registrar between 2005 and 2008, with orders being made, and then extended, so that the matter was ready for hearing of the present application. On 30 September 2008, a three-day hearing was fixed to commence on 2 March 2009. On 5 February 2009, that listing was vacated, with further orders being made, including an order fixing the matter for a three-day hearing commencing on 14 April 2009. That hearing was vacated to allow the psychiatrist witnesses to confer and prepare a joint report in advance of concurrent evidence. A further hearing was fixed for 15 July 2009, but that date too was vacated with the hearing fixed to commence on 25 November 2009.
8 By his Second Amended Notice of Motion filed in Court on 26 November 2009, the Plaintiff:
(b) sought determination of a separate question as to whether he was under a disability, for the purposes of ss.11(3) and 52 Limitation Act 1969 , so as to suspend the operation of the relevant limitation period.
(a) sought leave under the Felons (Civil Proceedings) Act 1981 to commence these proceedings nunc pro tunc;
9 Mr Hodgson, counsel for the Defendant, submitted at the hearing and Mr Elliott, counsel for the Plaintiff, accepted that an application for separate determination under Rule 28.2 Uniform Civil Procedure Rules 2005 (“UCPR”) was the appropriate means to resolve the Plaintiff’s reliance upon ss.11(3) and 52 Limitation Act 1969, in accordance with the approach identified in State of New South Wales v Bennie [2005] NSWCA 172 at [10]-[15] and Guthrie v Spence [2009] NSWCA 369 at [16]-[22], [209].
10 On 26 November 2009, I made an order for separate determination of the question of whether the Plaintiff was under a disability for the purpose of ss.11(3) and 52 Limitation Act 1969 so as to suspend the operation of the relevant limitation period (T49, 26 November 2009). Accordingly, this judgment will determine that question together with the Plaintiff’s application for leave under the Felons (Civil Proceedings) Act 1981.
11 An alternative claim for relief, by way of an extension of time under s.60G Limitation Act 1969, is no longer pressed by the Plaintiff (T15, 25 November 2009).
Operation of Felons (Civil Proceedings) Act 1981
12 The Plaintiff is serving sentences of imprisonment for serious indictable offences, with the earliest date of eligibility for release on parole being 9 April 2018.
13 Accordingly, the Plaintiff may not institute any civil proceedings except by leave of the Court: s.4 Felons (Civil Proceedings) Act 1981. The Court shall not grant leave under s.4 to institute proceedings unless it is satisfied that the proceedings are not an abuse of process, and that there is prima facie ground for the proceedings: s.5 Felons (Civil Proceedings) Act 1981.
14 Leave under ss.4 and 5 Felons (Civil Proceedings) Act 1981 may be sought nunc pro tunc: Jol v State of New South Wales (1998) 45 NSWLR 283 at 290.
15 The commencement of the proceedings without a grant of leave does not render the proceedings a nullity. Rather, they suffer from an irregularity which the Court can, in an appropriate case, cure by grant of leave nunc pro tunc: Vorhauer v NSW Minister for Health [2005] NSWSC 797 at [24].
16 It is necessary to keep in mind the relevant statutory context. The Plaintiff is required to seek leave under ss.4 and 5 because of his status as a person serving a sentence of imprisonment having been convicted of a serious indictable offence. The purpose of the Act is to enable the Court to supervise proceedings by ensuring that they do not go forward to trial if they amount to an abuse of process or there is no prima facie ground for them: Jol v State of New South Wales at 290. As a matter of policy, the statutory gateway to be applied by the Court ought not be an overly demanding one. In Ford v Simes [2009] NSWCA 351, Bergin CJ in Eq (Tobias JA and Handley AJA agreeing) observed at [30]-[31] that the expression “prima facie ground” in s.5 (as it applied to an appeal) meant no more than a ground of appeal that is arguable or not totally hopeless. With respect to an application for leave to commence proceedings at first instance, using the language in Ford v Simes, it is necessary for the Court to be satisfied that the Plaintiff has an arguable case, and a case which is not totally hopeless, so that he should be allowed to bring the proceedings.
Sections 11(3) and 52 Limitation Act 1969
17 Section 11(3) Limitation Act 1969 provides:
- “(3) For the purposes of this Act a person is under a disability:
(b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:(a) while the person is under the age of eighteen years, or
(i) any disease or any impairment of his or her physical or mental condition,
(ii) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1958,
(iv) circumstances arising out of war or warlike operations.”(iii) war or warlike operations, or
18 As will be seen, a number of provisions in s.11(3) are relied upon by the Plaintiff in this application.
19 Section 52 Limitation Act 1969 provides for the suspension of a limitation period whilst a person is under a disability:
(1) Subject to subsections (2) and (3) and subject to section 53, where:“52 Disability
(a) a person has a cause of action,
(c) the person is under a disability,(b) the limitation period fixed by this Act for the cause of action has commenced to run, and
in that case:
(e) if, but for this paragraph, the limitation period would expire before the lapse of three years after:(d) the running of the limitation period is suspended for the duration of the disability, and
(ii) the date of the person’s death,(i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or
- (whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates.
(3) This section does not apply to a cause of action to recover a penalty or forfeiture or sum by way of penalty or forfeiture, except where the person having the cause of action is an aggrieved party.”
(2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period.
20 The proper construction and application of ss.11(3) and 52 to this case will be considered later in this judgment.
Evidence Adduced at the Present Hearing
21 A number of documents and reports were tendered in the Plaintiff’s case at the hearing of the application. Affidavits of the Plaintiff sworn 24 March 2005 and 1 July 2009 were read and the Plaintiff was cross-examined. In addition, an affidavit of Anthony Philip Thurn sworn 18 July 2008 was read, with the parties relying upon a number of documents annexed to that affidavit.
22 A number of documents and reports were tendered in the Defendant’s case. In addition, an affidavit of Paul Anthony Kenny sworn 23 September 2008 was read, with the parties relying upon a number of documents exhibited to that affidavit, a number of which were extracted and tendered separately (Exhibit 5).
23 The documents which accompanied the affidavits of Mr Thurn and Mr Kenny were voluminous. In accordance with the practice proposed by Grove J in Ciantar v State of New South Wales [2008] NSWSC 191 at [51], I requested counsel to identify, with precision, the documents which were actually relied upon at the hearing and counsel did so.
24 Reports of Dr Bruce Westmore, psychiatrist, were relied upon by the Plaintiff. The Defendant tendered reports of Dr Lisa Brown, psychiatrist. In accordance with directions of the Court, Dr Westmore and Dr Brown prepared a joint report dated 30 June 2009 (Exhibit B). Dr Westmore and Dr Brown gave evidence concurrently at the hearing before me (T68-96, 26 November 2009).
The Plaintiff’s Pleaded Claim
25 The Plaintiff was born on 5 March 1965. He seeks leave to sue the Defendant in relation to events which took place between 1978 and 5 March 1983, the day on which he turned 18 years of age.
Statement of Claim
26 By Statement of Claim filed 1 April 2005, the Plaintiff seeks to sue the Defendant pursuant to s.5(1) Crown Proceedings Act 1988 in its capacity as the Department of Community Services and its statutory predecessors from time to time (paragraph 1, Statement of Claim).
27 It is alleged that, in or about 1978, the Plaintiff was placed in the care of YACS by his parents and was made a ward of the State, with such wardship continuing until 5 March 1983 when the Plaintiff obtained the age of 18 years (paragraph 2, Statement of Claim).
28 By reason of such wardship, it is alleged that the Defendant owed the Plaintiff a duty of care (paragraph 3, Statement of Claim).
29 According to the Statement of Claim, in the period of wardship between 1978 and 5 March 1983, the Plaintiff’s legal guardian, LE, sexually abused and molested the Plaintiff, in addition to exposing the Plaintiff to both immoral and illegal acts (paragraph 4, Statement of Claim).
30 The following particulars of sexual abuse are provided (paragraph 4, Statement of Claim):
“(a) The Plaintiff was sexually assaulted by the legal guardian and other persons.
(b) The Plaintiff was frequently asked by the said guardian to participate in obscene photographs with other children.
(d) The Plaintiff participated in illicit drug taking at the behest of the guardian and also being supplied with drugs by the guardian, with the result that the Plaintiff became addicted.”(c) The Plaintiff was taken out to adult entertainment venues by the said guardian and was encouraged to perform sexual and other like favours for reward.
31 According to the Statement of Claim, in the period of wardship between 1978 to 5 March 1983, the Defendant failed in its duty to exercise reasonable care for the Plaintiff’s wellbeing, and thereby occasioned to the Plaintiff personal injury, loss and damage (paragraph 5, Statement of Claim).
32 The Statement of Claim provides the following particulars of the alleged breach of duty of care by the Defendant (paragraph 6, Statement of Claim):
“(a) Failure to ensure reasonable and safe supervision of the Plaintiff.
(b) Failure to ensure that the Plaintiffs legal guardian was a fit and proper person and would not physically and emotional [sic] abuse the Plaintiff during the period of wardship.
(c) Failure to ensure the Plaintiff was properly monitored.
(d) Failure to ensure the Plaintiff was provided with suitable care and accommodation so as not to be exposed to physical and emotional abuse by persons both known and unknown.
(e) Failure to ensure the Plaintiff received training in fundamental skills and supervised same so as to provide the Plaintiff with a responsible prospect of living independently following the termination of the wardship.
(f) Failure to take reasonable measures to prevent the Plaintiff from engaging in prostitution, drug abuse and criminal activities.
(g) Failure to properly supervise the Plaintiff during the evenings so as not to permit the Plaintiff to be accompanied to adult bars where abuse would take place.
(h) Failure to provide suitable and stable accommodation.
(i) Failure to check the Plaintiff's movements from time to time or at all.
(j) Failure to take reasonable measures for the supervision, care and safety of the Plaintiff so as to prevent sexual and drug abuse by his legal guardian and others.
(l) Res ipsa loquitur. ”(k) Failure to ensure the Plaintiff was brought up in a loving environment where the best interests of the Plaintiff were paramount.
33 The Statement of Claim alleges that, by reason of the Defendant’s breach of duty, the Plaintiff has suffered the following personal injury, loss and damage (paragraph 7, Statement of Claim):
“(a) Nervous shock.
(b) Depression.
(d) Traumatic and serious psychiatric and psychological injury and disturbance and sequelae.”(c) Anxiety.
34 According to the Statement of Claim, the Plaintiff was at all material times since 5 March 1983, suffering from a disability within the meaning of ss.11(3)(b) and 52 Limitation Act 1969 in that he has, for a continuous period in excess of 28 days or upwards, been incapable of or substantially impeded in the management of his affairs in relation to the cause of action, irrespective of whether the limitation period arises by reason of psychological injury and/or lawful restraint of his person (paragraph 5, Statement of Claim).
Defence
35 On 17 February 2006, the Defendant filed a Defence in the proceedings. Put broadly, the Defendant denies that it is liable to the Plaintiff. The Defendant expressly denies the matters contained in paragraphs 2 to 8 of the Statement of Claim.
36 With respect to paragraphs 2 and 4 of the Statement of Claim, the Defendant pleads expressly (paragraphs 3 and 5, Defence):
(b) By Court order on 26 April 1978 the plaintiff was committed to an institution on general terms and as a result was admitted to Tallimba Boys Home on 4 May 1978.“3(a) that the plaintiff was only a ward of the State for the period of 19 October 1967 until he was adopted by [IW] and [KW] on 7 October 1971 and was never a ward of the State thereafter.
- (c) On 15 December 1978 the plaintiff was discharged from Tallimba Boys Home into the care of his parents, [IW] and [KW].
- …
- 5. The defendant denies that the plaintiff was a ward of the State between 1978 to 5 March 1983, or otherwise apart from the period 19 October 1967 to 7 October 1971, denies that [LE] was the legal guardian of the plaintiff between 1978 to 5 March 1983 …” .
37 In answer to the whole of the Statement of Claim, the Defendant pleaded in the Defence that the claim was statute barred by reason of the Limitation Act 1969 (paragraph 10, Defence).
38 Further, the Defendant pleaded that the proceedings had been commenced contrary to s.4 Felons (Civil Proceedings) Act 1981 and were incompetent (paragraph 11, Defence).
Reply
39 On 18 August 2006, the Plaintiff filed a Reply which asserted that, at all material times since the matters complained of, the Plaintiff had been under a disability within the meaning of s.11(3) Limitation Act 1969, with the result that the limitation period had been suspended by operation of s.52 of that Act. The particulars of disability contained in the Reply were as follows:
“(1) Post Traumatic Stress Disorder and sequelae;
(2) Substance Abuse, Addiction and sequelae;
1983-1984;(3) Imprisonment for the following periods:
1987-1988;
1990-1993;
1995-1997;
1997-1999;
2000-2001;
August 2002 to date and continuing.”
Cross Claim
40 On 5 December 2008, the Defendant filed a Cross Claim against LE seeking indemnity or contribution from him for any verdict obtained by the Plaintiff against the Defendant. It appears that the Cross Claim has been served upon LE, although he has not appeared or participated in the proceedings.
Factual Matters
41 In approaching a summary of the facts, I bear in mind the nature of the Plaintiff’s pleaded claim against the Defendant, as well as the alternative and unpleaded case advanced at the hearing (to which reference will shortly be made). The Plaintiff is not seeking leave to sue LE. Rather, the Plaintiff seeks to make the Defendant liable with respect to the acts of LE committed against the Plaintiff. There is no question that LE did act improperly towards the Plaintiff, including the commission of sexual assaults against him. However, the question for decision is whether the Plaintiff ought have leave to proceed against the Defendant so that he may attempt to make good his claim against it.
42 As will be seen, a number of events may be readily established by reference to official contemporaneous documents.
Events Between 1965 and 1983
43 The Plaintiff was born on 5 March 1965. The evidence indicates that the Plaintiff’s natural mother surrendered him for adoption in October 1967.
44 On 19 October 1967, on the application of his mother, the Plaintiff was admitted to State control and thereby became a ward of the State (page 1023, Kenny affidavit).
45 On 6 July 1971, the Minister for Child Welfare and Social Welfare, Mr JL Waddy, as the guardian of the Plaintiff, consented to the making of an adoption order whereby the Plaintiff would be adopted by IW and KW (page 1019, Kenny affidavit).
46 On 14 October 1971, Helsham J made an order under the Adoption of Children Act 1965 whereby IW and KW were appointed the adopting parents of the Plaintiff within the meaning of that Act (pages 1012-1013, Kenny affidavit).
47 Thereafter, the Plaintiff (then aged six years) lived with his adopting parents in the northern beaches area of Sydney and took their surname. It may be taken that the legal relationship between the Minister for Child Welfare and Social Welfare (as guardian) and the Plaintiff (as a ward of the State) came to an end when the Plaintiff was adopted under the Adoption of Children Act 1965. The departmental records contain an entry that the Plaintiff was discharged from State control by way of an adoption order in October 1971 (pages 1023, 1032, Kenny Affidavit). The periodical reports on the Plaintiff as a ward (pages 1027-1075, Kenny affidavit) came to an end when the Plaintiff ceased to be a ward of the State upon his adoption.
48 Some years passed with the Plaintiff residing with his adopting parents, IW and KW.
49 On 26 April 1978, the Plaintiff (then aged 13 years) appeared before Mr G Glass, Special Magistrate, at the Yasmar Children’s Court on charges of break, enter and steal (three counts) and goods in custody. On each count, the Plaintiff was committed to an institution in general terms under the Child Welfare Act 1939. A recommendation was made that the Plaintiff be detained at Tallimba Boys Home (page 1081, Kenny affidavit).
50 A social worker’s report prepared for the Children’s Court appearance on 26 April 1978 is in evidence (pages 1083-1084, Kenny affidavit). The report recounts the difficulties which IW and KW had been experiencing with the Plaintiff.
51 On 15 December 1978, the Plaintiff was discharged to the care of his parents, IW and KW (pages 1078-1079, Kenny affidavit). It was recommended that the Plaintiff have contact with a YACS’ District Officer, Mr Watkins, to assist should things become difficult at home or at school (page 1079, Kenny affidavit). In his affidavit sworn 1 July 2009, the Plaintiff confirmed that Mr Watkins was a YACS’ case officer assigned to him after his release from Tallimba Boys Home (paragraph 8, SW affidavit).
52 On 18 January 1979, the Plaintiff appeared again at the Yasmar Children’s Court on a charge of being neglected. He was placed on 12 months’ probation to be of good behaviour and to attend school regularly and accept the supervision of a District Officer (page 1342, Kenny affidavit).
53 On 21 June 1982, the Plaintiff was arrested and charged with entering part of a building with intent to steal. By this time, it appears that the Plaintiff had met LE, who was born in January 1941 and was then about 41 years’ old. On 29 June 1982, 27 July 1982, and 24 August 1982, it appears from relevant Albion Street Children’s Court records that LE accompanied the Plaintiff to Court with respect to that charge (pages 1258-1260, Kenny affidavit).
54 On 24 August 1982, the Plaintiff was released on 12 months’ probation on condition that he be of good behaviour and accept the supervision and guidance of the Probation and Parole Service (page 1260, Kenny affidavit). I infer that the Plaintiff was placed under the supervision of the Probation and Parole Service on this occasion as he was almost 17 years and six months of age at that time.
55 The statement of facts presented to the Children’s Court, and the depositions taken in the Children’s Court for the purpose of the 24 August 1982 sentencing hearing, both record LE as being the “guardian” of the Plaintiff (pages 1259-1261, Kenny affidavit). However, the Plaintiff was the adopted son of IW and KW at that time. No order had been made which would have had the effect of making him a ward of the State.
56 The affidavit of the Plaintiff sworn 24 March 2005 included statements that LE was his “guardian” or “legal guardian”. Over objection, I admitted these parts of the affidavit as evidence of the Plaintiff’s belief, but not as to the truth of the fact.
57 A police report prepared by Constable Mark Messenger for the Plaintiff’s 29 June 1982 appearance at Albion Street Children’s Court is relied upon by the Plaintiff (page 1286, Kenny affidavit). Constable Messenger recounted the Plaintiff’s history and observed that, following the Plaintiff’s release at the age of 15 years and six months from Tallimba Boys Home, he “was placed into the custody of [LE] a recognised custodian of the Youth and Community Services, and he has been with [LE] up until this stage”.
58 A court report dated 15 July 1982 from YACS’ District Officer David Lindop was placed before the Albion Street Children’s Court (pages 1264-1265, Kenny affidavit). The report stated that, since leaving Tallimba Boys Home at the end of 1978, the Plaintiff had not lived with his adopting parents, but did see them from time to time. Since that date, he had been boarding with LE, a self-employed contract cleaner for whom the Plaintiff had worked from time to time. Mr Lindop recounted an occasion on 9 July 1982 (whist the Plaintiff was on bail for the purpose of his court appearance) when Mr Lindop, whilst driving to work, came across the Plaintiff staggering beside a building site apparently intoxicated or under the influence of a drug. Mr Lindop got the Plaintiff into his vehicle and, as the nearby Manly Drug Referral Centre was not open, took him back to the Plaintiff’s address and waited for LE to return home from work. It became clear to Mr Lindop that the Plaintiff had been sniffing lighter fluid. Upon LE’s arrival some time later, the Plaintiff became aggressive when questioned about sniffing lighter fluid and, at a later point, took a knife from the kitchen draw and started to threaten LE. He was eventually disarmed and calmed down. Mr Lindop left the Plaintiff with LE and consulted immediately with a drug and alcohol counsellor who had been assisting the Plaintiff. Mr Lindop then conveyed the Plaintiff to Manly Hospital. Mr Lindop stated that the Plaintiff “may in the past have been unfortunate enough to have emotional problems in the homes he was sent to, but in the last four years he has been in a fairly normal and stable environment and he knows there is no excuse for his breaking and entering” (page 1283, Kenny affidavit). Mr Lindop recommended that the Plaintiff receive a period of probation, and that he continue to be supervised by the Adult Probation and Parole Service when he turned 18 years.
59 The order of the Albion Street Children’s Court on 24 August 1982 that the Plaintiff be released on probation for 12 months, was made under the Child Welfare Act 1939 (pages 1269-1270, Kenny affidavit). As will be seen, Mr Elliott submitted that the making of an order placing the Plaintiff on probation under supervision of YACS and then the Probation and Parole Service, at a time when YACS was aware that the Plaintiff was residing with, and under the supervision of LE, assisted the Plaintiff on the present application.
60 On 28 September 1982, the Plaintiff appeared again at Albion Street, Children’s Court on a charge of stealing from a retail store, in relation to which he was fined $75.00 (page 1343, Kenny affidavit).
61 On 3 March 1983, the Plaintiff was arrested and charged with stealing. At this time, the Plaintiff was two days short of his 18th birthday. He appeared at the Albion Street Children’s Court on 4 March 1983 and admitted his guilt (page 1272, Kenny affidavit). The proceedings were adjourned and the Plaintiff was granted bail to appear again on 31 March 1983.
62 The police statement of facts stated that police had, on 3 March 1983, attended the address where the Plaintiff was residing with LE and “a large number of photographs depicting young male persons naked and in various stages of indecent acts were located”, with the Plaintiff’s photograph appearing “in a considerable number” of those photographs. The Plaintiff told police that LE had taken the photographs. The Plaintiff informed the police that LE was supplying the photographs for child pornography books. The Plaintiff informed police that “during the period of the last four to five years he has performed sexual acts with [LE] and has been present whilst [LE] performed similar acts on other young boys” (page 1277, Kenny affidavit). The police fact sheet recorded further that LE had been charged with serious indecent assaults upon the Plaintiff, and that YACS had been notified and were trying to locate suitable accommodation for the Plaintiff. Mr Elliott placed particular reliance upon this document, submitting that the Plaintiff had been sexually abused by LE over a number of years, whilst he had been residing with LE with YACS’ approval.
63 Ms Patricia Harris, Probation and Parole Officer, prepared a presentence report for the purpose of the Plaintiff’s court appearance on 31 March 1983 (pages 1278-1279, Kenny affidavit). Once again, Mr Elliott placed particular reliance upon the history contained in this report concerning the placement of the Plaintiff with LE with the approval of his parents and YACS. Relevant extracts are set out below:
- “ Social Background
- At the age of four, [SW] was adopted by [IW and KW] . Prior to this he had had two foster placements which according to his adopted mother [KW] , foundered because [SW] was difficult to manage.
- [IW and KW] , who are the proprietors of a small business have another son (to whom they are the natural parents) 15 months [older than SW] . According to [KW] , [SW] enjoyed a normal childhood and a close relationship with his older brother. She recalls that [SW] was a particularly good sportsman and feels that he could have developed into a champion swimmer. It appears that he was well catered for materially.
- When [SW] was approximately twelve years of age he began to rebel. His mother recalls that he became defiant and started to frequently run away from home. This behaviour continued and gradually worsened until finally at age fourteen he left home permanently. At this time he went to live with [LE] with the permission of both his parents and the New South Wales Department of Youth and Community Services. This arrangement continued until recently, when as a condition of his bail, he was prohibited from living with [LE] .
- …
- Whilst at school he came under the attention of the Department of Youth and Community Services and was institutionalised to Tallimba for approximately seven months. At age fourteen, [SW] was granted permission to leave school prior to the formal leaving age.
- [SW] has had a number of jobs, but has failed to maintain them for more than a few weeks. Even whilst working with [LE] (who had a small cleaning business), in a rather protected environment, he was unable to fulfil some basic requirements such as attending regularly and performing his work satisfactorily. His employment was terminated.
- At the initiative of [LE] and by order of the Court in October, 1982 , [SW] went to work on a farm situated in Queensland and owned by a friend of [LE] . The purpose of this trip was ostensibly to provide him with employment but perhaps primarily it was to remove him from the negative influence of his peers. He returned to Sydney in February this year seemingly refreshed and wiser. This effect was short term and he has not been in employment since. He presently claims to be seeking employment.”
64 On 31 March 1983, the Plaintiff was sentenced in the Albion Street Children’s Court on the charge of stealing, with sentence being deferred under s.558 Crimes Act 1900 upon the Plaintiff entering into a recognisance to be of good behaviour for 12 months and to accept the supervision of the Probation and Parole Service (page 1343, Kenny affidavit).
65 In his affidavit sworn 24 March 2005, the Plaintiff stated that he was subjected to sexual abuse at the hands of LE, including the performance of sexual acts with LE and the taking of pornographic photographs with other boys of a similar age who had fallen out with their parents and who had been drifting (paragraph 6, SW affidavit). The Plaintiff stated that LE took him to various bars in Kings Cross which he understood to have been popular amongst homosexual men, and that he would remain and meet older men and perform sexual acts at these places (paragraph 8, SW affidavit). In addition, the Plaintiff stated that LE would take him to people’s homes, where he would stay the night and perform sexual acts with older men in exchange for payment of money (paragraph 9, SW affidavit). The Plaintiff said that he began using heroin and other drugs such as speed, cocaine and LSD (paragraph 10, SW affidavit). The Plaintiff stated that, whilst he was staying with LE, YACS “rarely came to check up on me” and that he did not speak to them, but LE did (paragraph 11, SW affidavit).
66 The Plaintiff stated that, following the arrest of LE in March 1983, he was a witness in the trial against him and that he was subsequently asked to give evidence at the Police Royal Commission (paragraph 12, SW affidavit).
67 In his affidavit sworn 1 July 2009, the Plaintiff said that he had moved in with LE in 1980 and was first abused by him in about 1981 (paragraph 9, SW affidavit). At the time of his arrest on 21 June 1982, the Plaintiff states that he was inhaling lighter fluid and was being sexually abused by LE (paragraph 10, SW affidavit). The Plaintiff confirmed the incident described by Mr Lindop (see [58] above) in which he was intoxicated in public and had been taken by Mr Lindop back to LE’s place (paragraphs 13-14, SW affidavit).
68 In his affidavit sworn 1 July 2009, the Plaintiff says that he was very scared and confused at this time and was too embarrassed to tell anyone about the abuse by LE (paragraph 12, SW affidavit).
Events Between 1983 and 1997
69 The factual matters touched upon so far relate principally to the Plaintiff’s cause of action against the Defendant, and the evidence relied upon with respect to it. Clearly, that material relates to events up to March 1983, when the Plaintiff and LE were both arrested and charged in the circumstances set out at [61]-[62] above. At that time, police and other authorities learned of the sexual abuse of the Plaintiff by LE. The determination of the Plaintiff’s application for leave to commence proceedings under the Felons (Civil Proceedings) Act 1981 will require an assessment of the statutory questions under that Act. I will return to these issues later in the judgment.
70 It is necessary now to set out factual findings with respect to events which are relevant principally to the Plaintiff’s claim that the applicable limitation period has been suspended because of disability under ss.11(3) and 52 Limitation Act 1969.
71 It was common ground that, unless suspended by operation of law, the relevant limitation period would have expired on 5 March 1989, when the Plaintiff turned 24 years of age (T2, 25 November 2009).
72 A chronology of the Plaintiff’s incarceration was agreed between the parties (Exhibit C). That chronology reveals that, between 5 March 1983 when the Plaintiff turned 18 years, and 5 August 2009, he had been in custody for about 21 years and nine months from a total of about 26 years and six months. Given the submissions made with respect to disability, I should record these periods of incarceration as contained in Exhibit C, noting that there are several calculation errors, with the correct period noted in brackets:
73 The Plaintiff remains in custody, with his earliest release date being 9 April 2018.
74 The Plaintiff was interviewed on 6 November 1990 at Long Bay Correctional Centre by Anita Duffy, psychologist, for the purpose of pending sentencing proceedings. The report of Ms Duffy dated 7 November 1990 records the fact that the Plaintiff discussed the sexual assaults upon him by LE, and the taking of pornographic photographs by LE (Part of Exhibit A, pages 2, 4).
75 The Plaintiff was interviewed by Dr JR Strum, psychiatrist, on 21 September 1996 and 4 October 1996 for the purposes of pending court proceedings. The report of Dr Strum dated 11 October 1996 recounts the Plaintiff’s history, including the sexual assaults by LE and the taking of pornographic photographs (Part of Exhibit A, pages 2-4, 6).
76 In his affidavit sworn 1 July 2009, the Plaintiff said that he was contacted, in the mid-1990s, to give evidence at the Police Royal Commission with respect to his involvement with LE (paragraph 19, SW affidavit).
The Plaintiff Obtains Legal Advice in 1997 and Commences Court Proceedings in 2005
77 In his affidavit sworn 24 March 2005, the Plaintiff said that he had first consulted a solicitor during 1997 whilst he was serving a sentence, and that he had no idea that he may have some legal remedy against the Defendant until he spoke with Marissa Jank of Gerard Malouf & Partners, solicitors, who suggested that he may be able to claim compensation for sexual and emotional abuse suffered and for continuing problems (paragraph 21, SW affidavit). In his affidavit sworn 1 July 2009, the Plaintiff said that, prior to speaking to a solicitor, he first spoke to police from the Child Protection Unit, and one of the police officers suggested that he may have a case against LE and YACS for not intervening (paragraph 24, SW affidavit).
78 The Plaintiff stated that, since instructing his solicitors, he had left the day-to-day carriage of his case in the hands of the solicitor. After giving evidence at the Police Royal Commission, he was placed into protective custody and he did not wish to discuss his case with anyone or have anyone at the gaol find out about it (paragraph 25, SW affidavit). It was the Plaintiff’s belief that the processes of the Police Royal Commission had empowered him to pursue a claim for the wrongs that were committed against him in his youth (paragraph 27, SW affidavit).
79 The Plaintiff stated that he had tried to contact his solicitors from time to time by phone, correspondence and through other visitors who came to see him in gaol (paragraph 28, SW affidavit). In his affidavit sworn 24 March 2005, the Plaintiff said that he had been in and out of prison for most of his adult life, and had spent time in boys’ homes prior to that, and that it had been difficult for him to give instructions to his representatives because he had been moved around frequently to different correctional facilities (paragraph 22, SW affidavit).
80 On 21 January 1997, the Plaintiff gave telephone instructions to Gerard Malouf & Partners that he wished that firm to act for him in relation to assaults upon him whilst he was under the supervision and care of YACS. The Plaintiff informed his solicitor that he had prepared “a full dossier with regards to allegations brought forward by the royal commission” and that this would be presented to the solicitors shortly thereafter (Plaintiff, T39-41; page 103, Thurn affidavit). Mr Hodgson submitted that this was a significant event with respect to the claim of disability given that the Plaintiff, whilst in custody, had instructed his solicitor of the intended claim with an indication that significant supporting material was to be provided.
81 A document dated 12 September 1997, on the file of Gerard Malouf & Partners, contains written instructions from the Plaintiff to sue YACS with respect to assaults upon the Plaintiff by LE (Plaintiff, T54; Exhibit 4). Again, Mr Hodgson submitted that this document reflected clear instructions from the Plaintiff to bring proceedings, without sign of any inhibition to act adversely to the Defendant with respect to the misconduct of LE.
82 On 26 September 1997, the Plaintiff informed Ms Jank that he did not want her firm to act for him in his Royal Commission matters, but did want Gerard Malouf & Partners to act “in his State ward matter to make a claim against the State for negligence” (Plaintiff, T43-45; page 113, Thurn affidavit).
83 By 13 October 1997, the Plaintiff had provided to his solicitors a submission, together with reports from Ms Duffy, psychologist, dated 7 November 1990 and Dr Strum dated 11 October 1996 (Plaintiff, T41; Exhibit 3; page 115, Thurn affidavit). The Court submission (Exhibit 3) was prepared by the Plaintiff and recounted his life story, including sexual abuse by LE. Mr Hodgson submitted that this was significant as there was apparently no inhibition at this time upon the Plaintiff recounting events concerning LE, and providing instructions that proceedings ought be taken on his behalf against the Defendant. Counsel was briefed on 13 October 1997 to advise with respect to the matter (pages 115-116, Thurn affidavit).
84 In December 1997, the Plaintiff instructed Coleman & Greig, solicitors, to act on his behalf in a claim for damages against the Department of Corrective Services in relation to injuries sustained when he was bitten by a dog during a search in prison on 11 December 1997 (Plaintiff, T51-52; page 1240, Kenny affidavit). The Plaintiff informed his solicitor from Coleman & Greig on 18 December 1997 that he had another matter currently with Gerard Malouf & Partners concerning a claim against YACS (page 1213, Kenny affidavit).
85 In 1998, following a delay in provision of advice from counsel, fresh counsel was briefed to advise (page 117, Thurn affidavit).
86 By 22 September 1998, the Plaintiff was in custody at the Fulham Correctional Centre in Victoria and Gerard Malouf & Partners were so notified (page 122, Thurn affidavit).
87 During 1999, consideration was being given within the office of Gerard Malouf & Partners to visit the Plaintiff in his Victorian place of custody, but it does not appear that this happened (page 134ff, Thurn affidavit).
88 In January 2000, counsel was briefed by Gerard Malouf & Partners to prepare an affidavit and advice with respect to the Plaintiff’s claim against the Defendant (pages 164-165, Thurn affidavit).
89 It appears that a draft affidavit of the Plaintiff had been prepared, and was perused by him in the course of a conference with his counsel and solicitor at the Silverwater Correctional Centre on 3 May 2000 (page 181, Thurn affidavit).
90 On 27 September 2001, solicitors then acting for the Plaintiff in unrelated criminal proceedings wrote to Gerard Malouf & Partners requesting that they contact the Plaintiff with respect to his claim against the Defendant (Plaintiff, T53; page 197, Thurn affidavit).
91 On 26 May 2003, the Plaintiff was informed by letter from Gerard Malouf & Partners that Ms Jank was leaving the firm and that a new solicitor would have the carriage of his matter (Plaintiff, T53-54; pages 199-200, Thurn affidavit).
92 It was not until 1 April 2005, that the Statement of Claim was filed in the Court.
Submissions of Parties
Application for Leave Under Felons (Civil Proceedings) Act 1981
93 Counsel agreed that the determination of the application for leave to institute proceedings under ss.4 and 5 Felons (Civil Proceedings) Act 1981 turned upon the question of whether the Court is satisfied that there is prima facie ground for the proceedings. The Defendant did not contend that the proceedings constituted an abuse of process.
94 Mr Elliott submitted that there was prima facie ground for the proceedings. He acknowledged that it was unlikely that the Plaintiff could establish wardship as pleaded in the Statement of Claim, but submitted that the Court should look to the evidence to see the case that could be formulated ultimately as well as the case that is pleaded (T98, 27 November 2009). He submitted that, as there is a triable issue, the Court should be satisfied that there is prima facie ground for the proceedings.
95 Mr Elliott submitted that the documents and the Plaintiff’s evidence demonstrated a history of “practical involvement”, with the exercise of “practical control” and “practical supervision” over the Plaintiff by YACS’ officers, in the period between 1978 and 1983. In particular, he relied upon the documents written by Constable Messenger and Mr Lindop and the court records surrounding the 1982 and 1983 appearances of the Plaintiff in the Children’s Court (see [53]-[63] above). Although the documents did not demonstrate that the Plaintiff was a ward of the State during this period, Mr Elliott submitted that YACS’ officers were exercising control over him, and had played a part in the placement of the Plaintiff to live with LE (T104-107, 27 November 2009).
96 Mr Elliott submitted that there was prima facie ground for the proceedings and, if the Court concluded that the limitation period was suspended, there would “have to be some work on the pleadings to reflect the facts of the case” (T107.32, 27 November 2009).
97 In response to questions from the bench, Mr Elliott sought to formulate the Plaintiff’s case against the Defendant as one where, as the Plaintiff was a minor and had been receiving practical supervision from YACS, then YACS had a duty of care to satisfy itself that the Plaintiff was living in reasonable circumstances and was not exposed to the sort of risks that eventuated. He submitted that there was nothing to suggest that YACS took any steps to satisfy itself that there was an appropriate arrangement in place for the Plaintiff, although YACS was aware that the Plaintiff had left his parents’ home and was living with LE unsupervised in a flat. He pointed, in particular, to the events described by Mr Lindop in July 1982 as being indicative that something was “very wrong” (T109.24, 27 November 2009).
98 He submitted that there was a prima facie case that, by reason of its supervision and its particular knowledge of the Plaintiff, YACS owed the Plaintiff a duty of care to ensure that he was living in reasonable circumstances and was leading a reasonable life (T109-110, 27 November 2009).
99 Mr Elliott acknowledged that there did not seem to be any material, prior to March 1983, that indicated the sexual proclivities of LE. He acknowledged that LE had no convictions prior to March 1983. Mr Elliott submitted that the taking of photographs of boys may have been the subject of wider knowledge in the community, so that “basic detective work” by YACS would have revealed concerns about LE, but that there was no evidence of YACS ever attempting to take such action (T110.25, 27 November 2009). He contended that there was material, at least from 9 July 1982, that ought to have put YACS on the clearest notice of the Plaintiff’s vulnerability and that nothing was done by YACS with respect to an assessment of the suitability of LE as a provider to him of accommodation and employment (T110.26, 27 November 2009). In this way, Mr Elliott submitted that there was prima facie evidence of a breach of duty of care owed to the Plaintiff by YACS.
100 Mr Elliott submitted that all these matters could be fully explored at a final hearing, but that enough had been demonstrated to warrant a grant of leave to institute proceedings (T109, 27 November 2009).
101 In opposing the application for leave, Mr Hodgson emphasised that the evidence pointed to the Plaintiff being a ward of the State until the adoption order in October 1971, which saw State control come to an end (T135, 27 November 2009). Thereafter, he submitted that the Plaintiff was the responsibility of his adopting parents, IW and KW, and not the State (T136, 27 November 2009). Mr Hodgson submitted that the Plaintiff was under the control of the State whilst he was committed to an institution in 1978, but only during the currency of that committal, which is not relevant to the Plaintiff’s present claim (T135-137, 27 November 2009).
102 With respect to the period between 1979 and 1982, Mr Hodgson submitted that YACS had no right or control in relation to the Plaintiff and was not acting in loco parentis. IW and KW had control over the Plaintiff and it was a matter for them if they chose to allow the Plaintiff to live with LE. He emphasised that it was not alleged that YACS was aware of any of LE’s sexual activity prior to LE’s arrest on 3 March 1983, at which time the Plaintiff ceased to reside with LE (T137, 27 November 2009).
103 Mr Hodgson submitted that nothing flowed, with respect to tort liability, from the orders of the Children’s Court in 1979 and 1982 placing the Plaintiff on probation. He emphasised that this was not the Plaintiff’s pleaded case and that ought be the end of the application. He submitted that the Court should not approach the leave application upon the basis that the Plaintiff can assert that there is other evidence which could support a different case to that which was pleaded and which the Defendant has come to Court to meet. If the Plaintiff wished to formulate a different case to that which had been pleaded in the Statement of Claim, Mr Hodgson submitted that it was necessary that the Plaintiff formulate that case by way of an appropriate amendment and that this had not been done (T137-138, 27 November 2009).
104 Mr Hodgson submitted that the case as advanced by Mr Elliott in submissions, by reference to the evidence, was flawed because proximity alone does not itself give rise to a duty of care (T138, 27 November 2009). He submitted that the placing of the Plaintiff on probation, with associated YACS’ supervision, did not give rise to a duty of care of the type asserted in oral submissions for the Plaintiff. Mr Hodgson submitted that it was necessary to approach these issues, for the purpose of assessing the prima facie case test, by reference to standards and practices in the late 1970s and early 1980s, and not present-day standards and practices (T139, 27 November 2009).
105 With respect to Mr Elliott’s submission based upon Mr Lindop’s report, Mr Hodgson submitted that the involvement of Mr Lindop, at a time when the Plaintiff was not a ward of the State and had his own parents, did not convert into an obligation on the part of YACS to take positive steps to assess the suitability of LE to house and employ the Plaintiff (T140, 27 November 2009).
106 Insofar as a number of documents refer to LE as the Plaintiff’s “guardian”, Mr Hodgson submitted that the appropriate inference was that LE had informed police officers and others that that was his status, with that being of little weight in proceedings brought against YACS (T142-143, 27 November 2009).
107 Mr Hodgson submitted that the Plaintiff had not contended that any provision of the Child Welfare Act 1939 assisted him in his claim against the Defendant, with no submission being advanced for the Plaintiff that a power existed under that Act to assist an argument that a duty of care existed as between YACS and the Plaintiff (T143, 27 November 2009).
108 In response to Mr Elliott’s submission concerning practical control and practical supervision, Mr Hodgson submitted that YACS’ officers could not simply, without some basis, interfere in the life of a juvenile. He submitted that YACS’ officers were empowered to act by legislation and that the Plaintiff was in the same situation as any other juvenile who had parents.
109 Mr Hodgson submitted that, whilst in certain circumstances there may be a duty of care existing between the State and a ward, the duty arises because of that relationship and there is not a similar duty to the public at large: SB v State of New South Wales [2004] VSC 514; 13 VR 527 at 589 [294]-[296].
110 Mr Hodgson submitted that any duty of care after the Plaintiff was adopted by IW and KW would lie on them, not upon the State. He submitted that any duty said to arise from practical supervision of the Plaintiff by YACS did not exist at law, particularly in circumstances where there was no evidence that YACS was aware of any criminal activity by LE. In effect, Mr Hodgson submitted that even if a duty of care existed as between the Plaintiff and YACS at the relevant time, it would lie beyond that duty of care to expect YACS effectively to uncover acts being perpetrated by LE (T144, 27 November 2009).
111 Mr Hodgson submitted that the Plaintiff had failed to demonstrate prima facie ground for the proceedings as pleaded. Even if the Court permitted the Plaintiff to advance an unpleaded argument by reference to the evidence, he submitted that the Plaintiff had still failed to establish prima facie ground so that leave ought be refused under ss.4 and 5 of the Act.
Determination of Leave Application
112 There was no submission from the Defendant that the proceedings are an abuse of process so that leave under ss.4 and 5 ought be refused on that basis. The term “abuse of process” is used in many senses, including vexation, oppression and unfairness to the other party to litigation, the fact that the matter complained of may bring the administration of justice into disrepute, and improper purpose: Williams v Spautz [1992] HCA 34; 174 CLR 509 at 529, 543; D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; 223 CLR 1 at 28 [74]; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at 262 [1], 265 [9]. I express my satisfaction that the proceedings are not an abuse of process for the purpose of ss.4 and 5 of the Act. The real issue is whether the Court is satisfied that there is prima facie ground for the proceedings.
113 Resolution of a leave application under the Felons (Civil Proceedings) Act 1981 should ordinarily be a straightforward process. However, the present application is not straightforward. The Plaintiff does not press strongly his pleaded claim. He advances a different and unpleaded claim without any precise legal or factual analysis of the claim. As will be seen, claims of this type require some precision and a clear identification of the basis of the claim.
114 Section 4 of the Act requires leave with respect to the institution of “any civil proceedings in any court” and s.5 requires that the Court be satisfied that there is prima facie ground for “the proceedings”. The present proceedings are those encapsulated in the Statement of Claim. The focus of attention (at the outset at least) should be upon the Plaintiff’s pleaded claim as set out in the Statement of Claim.
115 The Defendant has submitted that there is no prima facie ground for the proceedings contained in the Statement of Claim, because the evidence refutes the Plaintiff’s pleaded case of wardship between 1978 and 1983. The Defendant pleaded this contention in the Defence filed in 2006. It was elaborated upon in Mr Hodgson’s written submissions dated 12 November 2009. Mr Elliott acknowledged this weakness in the Plaintiff’s pleaded case. Mr Elliott’s written submissions dated 22 July 2009 had responded to the pleaded Defence by saying that the Plaintiff “was under practical supervision by the Defendant nonetheless and considered he had been placed with [LE] and in any event had no alternative”. However, no amendment to the Statement of Claim has been formulated, with the Plaintiff pressing this aspect of the application in oral argument.
116 This is not a case where the Plaintiff’s application for leave has been brought on at short notice. As mentioned earlier (at [7]), the application has been listed for hearing previously and adjourned. In these circumstances, it is difficult to understand how the Plaintiff’s application for leave has been left to be argued upon this basis. Counsel for the Plaintiff faintly supports the pleaded claim, with the primary argument being directed to an unformulated case said to arise from the evidence. There is a great deal to be said for the application for leave to be determined by the Court upon the basis that the Plaintiff has identified a cause of action in the Statement of Claim which is unsupportable but that, even after this has been made clear to the Plaintiff’s solicitors, no application has been made to amend the Statement of Claim. The obligations upon litigants and their lawyers under s.56 Civil Procedure Act 2005 may support such an approach, particularly given the history of this litigation.
161 It is also readily understandable policy that not every matter that substantially impeded the plaintiff in dealing with the practical matters that needed to be attended to enable the action to be brought in time should justify an extension of time. Bad legal advice, an inattentive lawyer, or having other pressing family or business commitments could each provide a reason why the plaintiff was substantially impeded in bringing an action in time, but it would be understandable legislative policy not to allow those to provide a reason for automatic suspension of a limitation period. The same might also be the case for significant poverty. There may be a measure of arbitrariness in the circumstances listed in subparas (i)–(iv) as adequate ones to provide the reason why a substantial impediment in management of the relevant affairs is treated as suspending a limitation period, but that is the choice that the legislature has made.”160 In my view, that is the correct syntactical structure of section 11(3)(b). Its having that syntax enables one to advance from the conclusion reached by analysis of the meaning of ‘affairs’, namely that the shade of the meaning of ‘affairs’ in section 11(3)(b) is one that places particular weight on the activities in relation to the cause of action leading up to and ending with the institution of proceedings, and to conclude that the only ‘affairs’ that are referred to by section 11(3)(b) are those practical matters that lead up to and end with the institution of proceedings for the particular cause of action in question.
174 Campbell JA then turned, at [162], to the question of a reasonableness test relating to s.11(3)(b):
- “The question that must be answered, for the purpose of section 11(3)(b), is whether ‘the person’, ie the plaintiff, had been substantially impeded in the management of the relevant affairs by reason of one of the matters in subparas (i)–(iv). The notion that a particular person, A, has been impeded in doing X by Y has within it the notion that that Y has got in the way of A doing X and made it more difficult for A to do X. In deciding that question, it might be of assistance to consider how a reasonable person, who did not have to deal with Y, would have acted in seeking to do X. However, considering how the reasonable person would have acted is not the same as considering whether A has been impeded. Slattery J in Kotulski did not treat the ‘reasonableness’ test as anything more than a relevant matter to be considered. It is not even a relevant matter to be considered in the sense that proper consideration of the question would require the ‘reasonableness’ test to be considered. Slattery J in reaching his conclusion returned in the passage I have quoted at [127] above to the correct question posed by the statute, deciding of the plaintiff that she was substantially impaired, &c.”
175 In the course of applying the stated principles to the facts in Guthrie v Spence, Campbell JA observed at [194] that the task of deciding whether a plaintiff was under a disability within the meaning of the section is not the sort of matter that is capable of being solved by medical evidence alone, and that there are limits on the assistance which a Judge can derive from medical evidence. It is for the Judge to decide, on the basis of the totality of all the evidence, both lay and expert, whether the particular relevant test for incapacity has been satisfied (at [195]).
176 Campbell JA observed at [208] that the date when the plaintiff first approached his current lawyer had a clear and logical relationship to the test for disability in s.11(3)(b), in that it was the date on which he first actually took a practical step to seek damages concerning the assault.
Decision Concerning the Disability Question
177 The question whether the limitation period was suspended by way of disability arises for determination as a separate question. The onus lies upon the Plaintiff to establish, on the balance of probabilities, that he falls within the provisions in ss.11(3) and 52 Limitation Act 1969.
178 When, as here, the argument is that a claim has been brought within time because the Plaintiff was under a disability, no question of discretionary extension by leave arises: State of New South Wales v Bennie at [12]; Guthrie v Spence at [10]. The purpose of ss.11(3) and 52 is to identify circumstances in which it would always be just to allow a plaintiff a longer time within which to commence an action. This is a different purpose to the purpose of provisions of the Limitation Act 1969 that empower a Judge to grant a discretionary extension of time: Guthrie v Spence at [141].
179 As mentioned earlier (at [11]), the Plaintiff does not press his claim for a discretionary extension under s.60G of the Act. The sole question for decision is whether the Plaintiff has established disability so as to suspend the limitation period for the purposes of ss.11(3)(b) and 52 of the Act.
180 In Guthrie v Spence, Campbell JA observed, at [110]-[111], that s.11(3)(b) gives rise to the possibility that someone might be under a disability for one continuous period of 28 days or upwards, cease to be under that disability, and then come to be under a disability for another one or more continuous periods of 28 days of upwards. However, the contention in Guthrie v Spence was that the plaintiff had been under a disability continually from the time of his 18th birthday until a date sufficient for his action to have been brought in time. A similar submission has been made by Mr Elliott in this case, namely that the Plaintiff has been under a disability continually from the time of his 18th birthday on 5 March 1983 until the filing of the Statement of Claim in the Court on 1 April 2005.
181 The evidence of the psychiatrists is that the Plaintiff does not suffer from post-traumatic stress disorder. He satisfies the DSM IV requirements for antisocial personality disorder and polysubstance abuse/dependence (see [139] above). It is not contended that either or both of these conditions constitute a “mental condition” for the purpose of s.11(3)(b) of the Act.
182 The Plaintiff’s claim of disability is based upon the concept of ambivalence towards LE as a mental condition. The Court has been assisted by the evidence of Dr Westmore and Dr Brown.
183 Of course, it remains a matter for the Court to decide, on the totality of the evidence (both lay and expert) whether the particular legal test for disability has been satisfied: Guthrie v Spence at [195]. The question of whether the Plaintiff was substantially impeded, in the relevant sense, is a mixed question of fact and law, and may be demonstrated by inference as well as direct evidence: Guthrie v Spence at [197].
184 I accept that the Plaintiff’s ambivalence falls within the broad concept of “mental condition” in s.11(3)(b)(i) of the Act, which covers “the mind’s activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment”: Kotulski v Attard at 117-118; Guthrie v Spence at [125], [130].
185 I accept that the Plaintiff has been affected, to some degree, since the early 1980s, by ambivalence with respect to the taking of action against LE concerning sexual abuse of him. The Plaintiff’s ambivalence played a part in him not revealing to police and YACS prior to March 1983 what LE had been doing to him for some time. However, the Plaintiff told the police in March 1983 of LE’s abuse of him and he gave evidence in subsequent criminal proceedings against LE. I accept, as well, that the Plaintiff spoke to the Police Royal Commission in the mid-1990s with respect to the conduct of LE. He had no inhibitions in telling Ms Duffy about it in 1990 and likewise, Dr Strum in 1996. It remains the case, however, that the Plaintiff has not sought to bring civil proceedings for damages against LE.
186 Whether the Plaintiff has been “substantially” impeded is to be decided bearing in mind the context and purpose for which the Court is called to make the decision. Here, the purpose is to decide whether an “as-of-right suspension of a limitation period” will arise. As Campbell JA observed in Guthrie v Spence at [152], it needs to be an impediment that has interfered with the ability of the Plaintiff to commence the action within time to an extent that is sufficient to warrant the suspension of the limitation period.
187 Although the Plaintiff has had feelings of ambivalence towards LE since 1983 involving mixed emotions as described by Mr Brown and Dr Westmore, I do not accept that his ambivalent feelings have substantially impeded him in managing his affairs in relation to his cause of action against YACS and the Defendant. The relevant “affairs” are the Plaintiff’s affairs with respect to his cause of action specifically against the Defendant and YACS: Guthrie v Spence at [140], [154], [157], [160], [178].
188 Similarly, the cause of action to which s.11(3)(b) of the Act must apply in this case is the Plaintiff’s cause of action against the Defendant, on behalf of YACS: Guthrie v Spence at [139].
189 Managing affairs concerning the particular cause of action includes seeking advice about whether a civil remedy exists and, if the decision to commence proceedings is taken, engaging in the continuing process of co-operation, interaction and decision making that exists between lawyer and client in running any civil action: Guthrie v Spence at [140]. That is what the Plaintiff did in this case.
190 However, the evidence demonstrates clearly, in my view, that the Plaintiff has been prepared consistently since 1997 to bring proceedings against the Defendant for alleged negligence relating to LE’s sexual abuse of him between 1979 and 1983. The date (January 1997) on which the Plaintiff first approached his current lawyers, Gerard Malouf & Partners, to take civil action against the Defendant on his behalf, has a clear and logical relationship to the test of disability in s.11(3)(b) in that it is the date on which he first actually took a practical step to seek damages from the Defendant: Guthrie v Spence at [208].
191 I am not satisfied, on the balance of probabilities, that ambivalence on the Plaintiff’s part has substantially impeded him since March 1983 in the management of his affairs in respect of his cause of action against the Defendant. I accept the evidence of Dr Brown in this regard. In my view, the evidence of Dr Westmore has focused upon ambivalence against LE, and has not had appropriate regard to the relevant cause of action here, which is against the Defendant.
192 With respect to events since 1997, Dr Brown took into account the detailed documentary evidence revealing the Plaintiff’s actions to instruct his lawyers to bring proceedings against the Defendant. I accept the evidence of Dr Brown that, whatever had been the position before 1997, any ambivalence towards LE did not impede the Plaintiff in the management of his claim against the Defendant in and after 1997.
193 It may be that the Plaintiff’s involvement with the Police Royal Commission provided a context in which he decided in 1997 to give instructions to sue the Defendant, but I do not consider that any mental condition substantially impeded him from doing so before then.
194 The evidence indicates that another factor slowed down the process between 1997 and 2005, however that factor lay outside s.11(3)(b) of the Act, being the conduct of “inattentive lawyers” acting for the Plaintiff: Guthrie v Spence at [161].
195 The evidence reveals that the Plaintiff has been in custody, principally in New South Wales (but also, for a limited time in Victoria) for substantial periods since 1983. The evidence reveals that the Plaintiff has been able to instruct solicitors for civil and criminal proceedings at various times, in particular since 1997, including the giving of instructions to his current solicitors concerning the present litigation.
196 I accept that full-time imprisonment may fall within the term “restraint of his or her person” in s.11(3)(b)(ii) of the Act. In Karaagac v GRE Insurance Limited [1989] NSWCA 116, Meagher JA observed that being in prison “must, relevantly, constitute an impediment to the conducting of legal proceedings”, but that the relevant question under s.11(3) was whether imprisonment constituted a substantial impediment. In the same case, Clarke JA said that “mere impediment is not sufficient” and that proof of substantial impediment was required. As Rein SC DCJ (as his Honour then was) said in Morris v State of New South Wales at [15], in the case of a claimed s.11(3)(b) disability, it is a question of fact as to whether the person was substantially impeded in the management of his affairs.
197 Although there are practical disadvantages and a measure of inconvenience in the Plaintiff being in custody, I do not consider that the periods in custody constitute restraint of his person, giving rise to the requisite incapacity or substantial impeding in the management of his affairs in relation to the cause of action for the purpose of s.11(3)(b)(ii) of the Act.
198 Once again, it seems to me that the real problem was one of the Plaintiff’s inattentive lawyers. When in custody, the Plaintiff was housed in New South Wales prisons, except for one period when he was detained, to the knowledge of his lawyers, in a Victorian prison. The Plaintiff was ready, willing and able to give instructions (unimpeded by ambivalence), but the problem lay with his lawyers. That is not to say that there were not occasional periods when the Plaintiff was transferred between prisons or was held in a prison which was not ideal from the point of view of access to him by his lawyers. However, I am far from satisfied that these aspects gave rise to a substantial impediment to the Plaintiff managing his affairs in relation to his cause of action against the Defendant.
199 Mr Elliott submitted that the Plaintiff was subject to a disability continuously from 1983 to 1 April 2005. Mr Hodgson submitted that the Court would not be satisfied that the Plaintiff was subject to a disability after 1983 or, alternatively, if he was subject to a disability at all, he ceased to be relevantly subject to it in 1997.
200 I am not satisfied, on the balance of probabilities, that the Plaintiff’s mental condition (ambivalence) and his incarceration, taken together, constitute a disability within the meaning of s.11(3)(b) of the Act, in the sense that he was incapable of, or substantially impeded in, managing his affairs since March 1983 in relation to his cause of action against the Defendant.
201 Even if I accepted that the Plaintiff was subject to a disability prior to 1997, in the form of the mental condition of ambivalence, I am not satisfied that he was subject to a disability, within the meaning of s.11(3)(b), since 21 January 1997, when he approached his current solicitors to act for him in relation to his claim (see [80] above). On this basis, the limitation period would have expired, in any event, in January 2003 at the latest, leaving the Plaintiff’s claim statute-barred.
202 Accordingly, I am not satisfied that the Plaintiff has established that the limitation period was suspended for the purpose of s.52 of the Act. The separate question posed for determination should be answered in the negative. Given the broad manner in which the disability question was argued (see [154], [180] above), I propose to answer the separate question in a broad manner.
Conclusion
203 I am satisfied that there is prima facie ground for the proceedings brought by the Plaintiff, with the consequence that leave to institute proceedings will be granted nunc pro tunc under ss.4 and .5 Felons (Civil Proceedings) Act 1981.
204 However, I am not satisfied that the Plaintiff is a person under a disability within the meaning of ss.11(3)(b) and 52 Limitation Act 1969, with the consequence that the limitation period with respect to his cause of action expired, on any view of the matter, no later than January 2003.
Orders
205 I grant leave nunc pro tunc to the Plaintiff under ss.4 and 5 Felons (Civil Proceedings) Act 1981 to institute proceedings against the Defendant.
206 The question posed for separate determination under rule 28.2 UCPR is as follows:
- “So far as the cause of action that the Plaintiff alleges is concerned, was the Plaintiff under a disability after attaining the age of 18 years, and, if so, did that disability last sufficiently long for these proceedings to have been brought within the applicable limitation period.”
I answer the separate question in the following way: I am not satisfied, on the balance of probabilities, that the Plaintiff was under a disability after attaining the age of 18 years, but even if he was subject to some disability thereafter, the applicable limitation period expired at the latest in January 2003, so that the proceedings were not brought within the applicable limitation period.
207 I will hear counsel as to consequential orders, including costs, and with respect to the question of publication of names in the judgment where I have used pseudonyms.
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