Webb v Andrews - [2006] QDC 413

DISTRICT COURT OF QUEENSLAND

CITATION:	Webb v Andrews [2006] QDC 413
PARTIES:	CHELSEA JYMICA WEBB (Applicant) AND NEIL REX ANDREWS (Respondent)
FILE NO/S:	316 of 2006
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Maroochydore
DELIVERED ON:	15 December 2006
DELIVERED AT:	Maroochydore
HEARING DATE:	8 December 2006
JUDGE:	Judge J.M. Robertson
ORDER:	(a) Pursuant to s. 31 of the Limitations of Actions Act 1974, the period of limitation with respect to the Applicant’s claim against the Respondent for damages for personal injuries sustained by the applicant be extended to 13 December 2006. (b) I will hear the parties regarding costs
CATCHWORDS:	Extension of time under s. 31 of the Limitations of Actions Act 1974 to claim damages for personal injuries; where applicant alleges she was sexually abused by respondent when she was a child, where there is evidence of injury as a result, where respondent pleaded guilty on 13 December 2005 to one count of indecently dealing with the applicant, where applicant asserts that this was a material fact of a decisive nature; test to be applied. *Cases cited:* Davison & Ors v State of Queensland [2006] HCA 21 SG v State of Queensland (No. 2) [2004] QCA 461 Pizer v Ansett Australia Limited [QCA] 298 Carter v The Sisters of Mercy of Rockhampton & Ors [2000] QSC 306 Carter v The Sisters of Mercy of Rockhampton & Ors [2001] QCA 335 *Legislation:* Limitation of Actions Act 1974, s. 31(2)(a) Personal Injuries Proceedings Act, ss. 30 and 31
COUNSEL:	P.B. de Plater (for the applicant) M.D. Alexander (for the respondent)
SOLICITORS:	Schultz Toomey O’Brien Lawyers (for the applicant) McCormacks Legal Practitioners (for the respondent)

Mrs Chelsea Webb alleges that between July 1976 and January 1978, when she was a child, she was unlawfully and sexually assaulted by her father Neil Andrews at the family home in Buderim. Mrs Webb was born on 8 May 1967 so at the relevant times she was aged between 9 and 10. She claims that as a result of the assault she has suffered personal injuries in the form of mental or nervous shock injuries.

On 13 December 2005, the defendant pleaded guilty in the Maroochydore District Court to one count of indecently dealing with the plaintiff during the relevant period.

The relevant time limit pursuant to the Limitation of Actions Act 1974 expired on 8 May 1988.

She has applied for an extension of that limitation period pursuant to s. 31 of the Limitations of Action Act 1974 until 13 December 2006.

She also applied pursuant to s. 43 of the Personal Injuries Proceedings Act that she have leave to start the proceedings despite non-compliance with Chapter 2 of Part 1 of the Personal Injuries Proceedings Act.

Both applications were heard on the 8 December 2006. No doubt as a result of the High Court’s decision in Davison & Ors v State of Queensland [2006] HCA 21 which decision was handed down on 17 May 2006, the defendant advanced no argument to…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Webb v Andrews

Details

AGLC: Webb v Andrews [2006] QDC 413
Case: [2006] QDC 413
Decision Date: 15 December 2006

CaseChat Overview and Summary

Webb sought an extension of time to bring a personal injury claim against Andrews, alleging sexual abuse from childhood. The respondent had pleaded guilty on 13 December 2005 to one count of indecently dealing with the applicant. The matter came before the court to determine whether the statutory limitation period could be extended under section 31 of the Limitation of Actions Act 1974. The key issue was whether the fact that Andrews pleaded guilty to the indecent act constituted a material fact of a decisive nature, which would justify extending the limitation period. The court had to assess this in light of previous cases and statutory provisions.

The court considered the criteria for extending the limitation period under section 31(2)(a) of the Limitation of Actions Act 1974, which requires a material fact of a decisive nature. The court referred to SG v State of Queensland (No. 2) and Carter v The Sisters of Mercy of Rockhampton & Ors, which established that the material fact must have a direct and significant impact on the plaintiff's ability to bring the claim within the limitation period. In this case, the fact that Andrews pleaded guilty to the indecent act was a decisive factor as it confirmed the abuse and justified the extension. The court found that the plea of guilty constituted a material fact of a decisive nature, warranting an extension of the limitation period.

Having found that the criteria for an extension under section 31(2)(a) of the Limitation of Actions Act 1974 were met, the court ordered that the limitation period be extended to 13 December 2006. This allowed Webb to bring the claim within the extended period. The court also noted that it would hear the parties regarding costs. The decision underscored the importance of recognising material facts of a decisive nature in extending limitation periods for personal injury claims.

Orders

Orders of the court

(a) Pursuant to s. 31 of the Limitations of Actions Act 1974, the period of limitation with respect to the Applicant’s claim against the Respondent for damages for personal injuries sustained by the applicant be extended to 13 December 2006.

(b) I will hear the parties regarding costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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