Taylor v State of Queensland
[2000] QSC 312
•13 September 2000
SUPREME COURT OF QUEENSLAND
CITATION: Taylor v State of Queensland [2000] QSC 312 PARTIES: KIM MAREE TAYLOR
(plaintiff)
v
STATE OF QUEENSLAND
(defendant)FILE NO/S: SC No 1550 of 1994
SC No 2081 of 1995DIVISION: Trial Division DELIVERED ON: 13 September 2000 DELIVERED AT: Brisbane HEARING DATE: 6 September 2000 JUDGE: Chief Justice ORDER: Application for extension of the limitations period in each action dismissed, with costs to be assessed. CATCHWORDS: LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF DECISIVE CHARACTER – plaintiff signed consent to the adoption of her child – plaintiff subsequently issued two writs against the defendant – plaintiff claims declaration that adoption was invalid and that plaintiff is the child’s guardian, an injunction, damages for personal injuries for negligence and breach of statutory or fiduciary duty – defendant relies on the plaintiff’s action being barred under the State of Limitations – plaintiff applies summarily for extension of limitations periods – whether material facts of a decisive character relating to the actions were not within the plaintiff’s means of knowledge prior to the requisite date in each action – whether facts on which the plaintiff relies were ‘reasonably ascertainable’ and ‘decisive’
Adoption of Children Act 1964
Limitation of Actions Act 1974, s 3(2), s 11, s 30(d)(ii), s 31(2)(a), s 31(2)(b)Attorney-General v Prince and Gardner [1998] 1 NZLR 262, referred to
Brisbane South Regional Health Authority v Taylor (1996-7) 186 CLR 541, referred to
Castlemaine Perkins Ltd v McPhee [1979] QdR 469, followed
Dick v University of Queensland [1999] QCA 474, referred to
Do Carmo v Ford Excavations Pty Ltd (1983-4) 154 CLR 234, referred to
Jaensch v Coffey (1983-4) 155 CLR 549, referred to
Sugden v Crawford [1989] 1 QdR 683, considered
Woodhead v Elbourne [2000] QSC 042, referred toCOUNSEL: L Boccabella, with CJ Forrest for the plaintiff
GJ Gibson QC, with KA McMillan for the defendant in SC No 1550 of 1994
JA McDougall for the defendant in SC No 2081 of 1995SOLICITORS: Conroy & Associates for the plaintiff
Crown Solicitor for the defendant in SC No 1550 of 1994
Corrs Chambers Westgarth for the defendant in SC No 2081 of 1995
de JERSEY CJ: The plaintiff gave birth to a son at Royal Women’s Hospital, Brisbane, on 25 April 1987. On 5 May 1987 she signed a form of consent to the adoption of the child. (She disputes the validity of that consent.) The child was adopted out under the then applicable Adoption of Children Act 1964.
The material before me indicates that twice before the birth, and three times subsequently, the last of them four days before the plaintiff signed that form of consent to adoption, the plaintiff saw Diane Clough, a social worker employed at the hospital, and received counselling from her. The adoption was handled on behalf of the State by an officer of the then styled Department of Family and Youth Services, Michelle Chapman.
On 30 September 1994 the plaintiff issued a writ against the State of Queensland (No 1550 of 1994), claiming a declaration that the adoption was invalid and that she, the plaintiff, was the guardian of the child, an injunction, and damages for personal injuries because of negligence, and breach of statutory or fiduciary duty. The statement of claim delivered on 29 July 1996 alleged breaches of duty in numerous respects, including failure to identify the plaintiff’s serious doubts about proceeding with an adoption and failure to advise her not to go ahead, failure to warn of adverse psychiatric prospects if she did go ahead, failing to provide complete information and proper counselling, failing to advise the plaintiff of her statutory rights, failing to implement her wish to revoke her consent, actively persuading her to adopt out the child, giving incorrect information, and many more particulars of which those are illustrations.
The State defended on 3 August 1998, after the provision of particulars, relying, among other matters, on the Statute of Limitations Act 1974, on the basis that the cause of action became barred three years after about the time of the adoption.
By an amended reply delivered on 30 June 1999, the plaintiff sought orders extending the limitations period. The plaintiff relied in the pleading on “material facts of a decisive character” (s 3(2) Limitation of Actions Act 1974) deriving from two sources – first, material obtained in about late March 1994 from one Malcolm Campbell, an officer of the Department of Family and Youth Services; and second, a medico legal report obtained in late November 1994 from a psychiatrist, Dr Rickarby. Those “material facts” were pleaded in the following way.
As to the information provided by Mr Campbell –
“The appended documents revealed to the plaintiff for the first time that:
(a) she had not been properly informed that to revoke an adoption order she had to do so in writing;
(b) that the relevant officer of the Department of Family and Youth Services ought to have ensured the plaintiff properly understood the consent being given for adoption;
(c) that the relevant officer of the Department of Family and Youth Services ought to have informed the plaintiff and given her advice about, there being a procedure for an adoption consent to be limited to a relative or nominated person adopting her child;
(d) that the relevant officer of the Department of Family and Youth Services ought to have discouraged the plaintiff from proceeding with the adoption in circumstances where the plaintiff was uncertain as to whether to proceed with the adoption;
(e) that the relevant officer of the Department of Family and Youth Services ought to have referred the plaintiff to community support agencies for independent and/or alternative advice in the circumstances where the plaintiff was uncertain as to whether to proceed with the adoption;
(f) that Michelle Chapman had mislead (sic) the plaintiff into believing that her child had been placed with adopting parents when in fact her child had not been so placed.”
In relation to the report of Dr Rickarby –
“(the report) provided a professional critique of:
(a) the way the adoption process was handled;
(b)her care and treatment by officers of the then Department of Family Services;
(c)the extent and depth of her psychiatric and psychological injury suffered.”
On 1 November 1995 the plaintiff issued another writ, number 2081 of 1995, claiming damages for personal injuries for negligence, and breach of statutory or fiduciary duty, in respect of the “counselling and psychological treatment” she received at the hospital. The defendant to this claim is, now, also, the State of Queensland. The statement of claim delivered on 25 July 1996 relates to the involvement of Diane Clough, and alleges breaches similar to, although not the same as, those alleged against the State in the earlier action based on the involvement of Michelle Chapman. By an amended defence delivered 8 October 1996 the State pleaded that the claims are time barred.
In an amended reply of 13 November 1998 the plaintiff sought extension of the limitations period, pleading as the relevant “material facts of a decisive character”, by reference to Dr Rickarby’s report of 24 November 1994,
“a the way the adoption process was handled;
bher care and treatment by officers of the then Department of Family Services;
cthe extent and depth of her psychiatric and psychological injury suffered.”
(being the same as those raised in the other action.)
The plaintiff now applies summarily for the requisite extension of the limitations periods. The State opposes the applications on various grounds. It countered separately with its own applications to strike out both proceedings on other bases. But because of short service, and the contention of Mr Boccabella, who appeared for the plaintiff, that he was not in a position to deal with those applications for that reason, I adjourned them to a date to be fixed. The applications which did proceed, for extension of the limitations periods, in both actions, were argued correctly on the assumption that the three year limitation period certainly applied to the claims in negligence and breach of statutory duty (s 11 Limitation of Actions Act) and probably also applied to the claims based on breach of alleged fiduciary duty (cf. Woodhead v Elbourne [2000] QSC 042, unreported decision of the Supreme Court per White J, judgment delivered 7 March 2000).
It is convenient to deal first with the application for extension brought in the action commenced by writ No 1550 of 1994. That writ was issued on 30 September 1994. To regularise the proceeding, the plaintiff would seek an extension of the limitation period to that date, 30 September 1994. She must therefore establish that “a material fact of a decisive character” relating to the right of action was not within (her) means of knowledge” (s 31(2)(a)) prior to 30 September 1993 (Castlemaine Perkins Ltd v McPhee [1979] QdR 469, 472). The plaintiff’s contention, as seen, is that the facts first disclosed in the material enclosed with Mr Campbell’s letter received in March 1994, and in Dr Rickarby’s report in November 1994, fell into that category. Mr Boccabella, in his written outline, submitted that the procedural manual “which stated that in the event a birth parent was wavering about adoption she should be counselled not to proceed with the adoption” was of particular relevance.
Mr Boccabella characterised the plaintiff’s case in this way:
“Prior to the freedom of information material and the report of Dr Rickarby (the plaintiff) could really only vent uneducated and probably unreasoned anger at her situation. But after the report of Dr Rickarby and the freedom of information material (the plaintiff) has the facts which identify the breach of duty and the negligence … (the plaintiff) outlines in her affidavit the progressive steps which converted her anger into knowledge of a cause of action.”
He referred particularly to Dick v University of Queensland [1999] QCA 474 and Do Carmo v Ford Excavations Pty Ltd (1983-4) 154 CLR 234, especially 255-260.
That characterisation is not justified, having regard to the factual material to which I am about to refer: that material discloses a close appreciation of the relevant issues from a much earlier stage.
The plaintiff has not satisfied me that material facts of a decisive character relevant to her right of action were not within her means of knowledge prior to 30 September 1993. That is because the facts on which she relies were reasonably ascertainable (s 30(d)(ii)), and were not in any case “decisive” (s 31(2)(a)) – allowing for the plaintiff’s existing base of knowledge of the relevant circumstances, these additional matters would not, for example, have converted “a possibility (of success) to a real likelihood” (Sugden v Crawford [1989] 1 QdR 683,686). The circumstances which lead me to these conclusions follow.
From soon after the adoption, the plaintiff felt aggrieved and gave close consideration to her position. For example in June 1987 she approached the Cairns Legal Aid Office about challenging it. In the following month she contacted the Council of Civil Liberties and was referred to a lawyer. Then in August 1987 she wrote to Michelle Chapman saying that “if feasible”, she intended “taking legal action” because the decision to adopt the child out was “not correct”.
In February 1988 she consulted the Darlinghurst Community Health Centre. That centre’s records make mention of the plaintiff’s wish to challenge the adoption in court, but her decision by 6 January 1989 to put legal action on hold with “psychiatric advice re (her) state of mind on record in case anything changes or if parents die – wants the child back”. The plaintiff’s consideration of her legal position was quite detailed and specific. (As emerges below, she knew in 1989 that she could sue.)
Of considerable significance is the circumstance that in December 1993 she wrote to her current solicitors raising specific heads of claim against Michelle Chapman, including the following: negligence in explaining the process of consent and adopting out of the child; negligence in explaining the process of revocation, prior to the signing of the consent and later during the revocation period, upon her attempting to revoke; proceeding with the adoption after the plaintiff had expressed serious reservations; negligently failing to inform the plaintiff comprehensively about the implications of her signing the consent; informing the plaintiff, when she requested revocation, that the child had already been placed with the other family.
Those matters are generally similar to the “material facts” on which the plaintiff now relies in support of this application, of which she claims to have learned only from March 1994.
I appreciate that the plaintiff wrote in these terms to her solicitors in December 1993, which is after the significant date, 30 September 1993. But as pointed out by Mr Gibson QC who appeared for the respondent, one should readily infer that this aggregation of views had been developing over a substantial prior time. Also highly significantly, the material from Mr Campbell arrived some four months later.
There is substantial other material written by the plaintiff, one infers prior to the end of September 1993, which shows a great depth of perception of the issues and reflection on her rights, sufficient to cause one seriously to doubt the assertion that she was not by the end of September 1993 in a position, acting reasonably, to mount comprehensively any claim which may have been open to her. I refer to the plaintiff’s letter addressed to “Stephanie”, concerning a public meeting on adoption held on 22 August 1993, and letters to “New Woman” magazine about its article entitled “Blood Ties” published in October 1993. In the former the plaintiff makes many allegations closely similar to the matters on which she relies to further this application.
The plaintiff refers, for example, to “neglect in informing (her) of the negative long term effects of relinquishment”; and failure to provide “written information on the legal implications and processes of relinquishment/adoption”; and asks “why is the birth mother not informed on how to revoke her agreement …”; adding “I am criticising both (Family and Community Services) and the social worker of neglect and abuse of myself and my son. During my supposed counselling I did not receive any advice on what my rights were. I was not told of the support networks …”
In that document the plaintiff also refers to having approached Legal Aid (which occurred in 1987), and having found out “two years later”, that is, in 1989, “that (she) could have taken legal action”. This relates, of course, to the significance of the information newly acquired later, in terms of enhancing already established prospects of success.
There is one further consideration. The plaintiff’s disastrous state of shock and grief would have been apparent to the health professionals she encountered over the years following the adoption and prior to September 1993. Dr Rickarby’s report of 24 November 1994 provides ample confirmation of that, and of the apparent relationship between her condition and the circumstances of the adoption as she perceived them. The plaintiff’s was not an abstruse condition which would have eluded a qualified professional. Accordingly, had she, with reasonable comprehensiveness, explored her condition, its relationship to the adoption, and the circumstances of that adoption, she would well prior to 1993 have been in a position to mount the claim she now seeks to pursue.
Hence my conclusions that the particular facts on which the plaintiff now seeks to rely were reasonably ascertainable well prior to 30 September 1993, and were not in any case “decisive” in the relevant sense.
It follows that the application should be dismissed. The respondent raised other grounds of opposition to which I should briefly refer.
1. As to the prospect of success of the claim in any event (s 31(2)(b)), the respondent submitted it was untenable, in light of the reasoning in Attorney-General v Prince and Gardner [1998] 1 NZLR 262. It is not necessary for me to resolve that question in these proceedings. It is a question of some complexity.
2. The respondent also relied on prejudice to the prospect of a fair trial, in the event that the limitations period were extended, referring to Brisbane South Regional Health Authority v Taylor (1996-7) 186 CLR 541, 552-3. The extent of delay since the adoption, some 13 years 4 months, taken with the likelihood of serious gaps in the recollection of conversations especially of critically important witnesses (cf. affidavit Michelle Chapman, especially paras 14-19, 22, 23 and 26), would on this ground alone warrant refusal of an extension.
I turn to the application brought in action No 2081 of 1995. That action was commenced on 1 November 1995. To succeed in her application for extension, the plaintiff must in this case show material facts of a decisive character relevant to her right of action which were not within her means of knowledge prior to 1 November 1994. The “facts” relied on were the same as those emerging from Dr Rickarby’s report as particularised in the earlier action. It follows therefore, for even stronger reasons in this case, that the application should be refused.
I mention that in her letter to her solicitors of 8 December 1993 referred to above, the plaintiff included a specific list of heads of claim against the hospital.
Mr McDougall, who appeared for the respondent in this application, made a number of submissions about the merits of the claim, including the suggested lack of a legally significant “trigger” for the psychiatric condition, having regard to Jaensch v Coffey (1983-4) 155 CLR 549, 566-7. Again there is no need to embark on such issues, issues of some complexity.
The application for extension of the limitations period is in each action dismissed, with costs to be assessed.
0
0
2