Anderson v State of NSW; Perri v State of NSW

The proceedings in the District Court summarised

1. The proceedings below were not commenced until 15 July 2021, being more than 10 years after the relevant events. Each plaintiff sought general damages, together with aggravated and exemplary damages. As noted, three causes of action were pleaded, being false imprisonment, assault (relating to the strip search) and battery (ultimately confined to the pat down search of each plaintiff that was carried out by the police when they were first arrested at the campus).
2. Although the State initially raised several matters in defence, ultimately the defence in both proceedings was simply that the claims were statute-barred under the Limitation Act. Significantly the State did not seek to argue that the relevant police actions were not tortious.
3. The primary judge's findings may be summarised as follows: 1. The events in question took place essentially as described by the applicants (PJ[21]), which in turn meant that tortious conduct on the part of the police officers did occur on 7 April 2011, namely: 1. The arrest at the University, the subsequent transport to Maroubra Police Station; and the detention there (false imprisonment); 2. The pat down search at the University (battery); and 3. The strip searches at Maroubra Police Station (assault). 1. The strip searches constituted an assault because each of the plaintiffs was put in fear of immediate physical contact with the police if they did not comply with police directions: PJ[9], [16]. 2. The strip searches did not constitute child sexual abuse within the meaning of s 6A of the Limitation Act: PJ[39]-[41]. Section 6A relevantly provided (emphasis in original): 6A No limitation period for child abuse actions (1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act. (2) In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age - (a) sexual abuse, (b) serious physical abuse, (c) any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse). (3) To remove doubt, connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age. … 1. In construing the phrase "sexual abuse" in s 6A(2)(a), the primary judge took into account the second reading speech relating to the amending bill that introduced that provision as well as the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse ("Royal Commission"). 2. In rejecting the claims that the strip searches constituted child sexual abuse, the primary judge reasoned as follows at PJ[40] and [41]: No doubt watching a child undress, or forcing him or her to do so, in certain circumstances may amount to a violation of the child's privacy, involving sexual abuse. However in my view not every case in which such behaviour occurred would necessarily do so. In my view a sexual connotation must be present before behaviour of this nature could constitute child sexual abuse. I believe that this is in fact clear from the extract from the Royal Commission report referring to "Violation of Privacy" to which the plaintiffs refer. What I believe the Royal Commission was considering in that paragraph was conduct which could be "described as voyeurism or peeping". These well-known forms of behaviour have clear sexual connotation. Here the strip searches, although clearly regrettable, had no such sexual connotation, and the plaintiffs did not suggest that they did. Thus, to my mind the strip-search did not constitute "child abuse" for the purposes of s 6A of the Limitation Act. 1. On the alternative position, namely that the causes of action were not discoverable (within the meaning of s 50D of the Limitation Act) until March 2021 when the plaintiffs were first in contact with their current solicitors, each of the plaintiffs ought reasonably to have known that the injuries in question were sufficiently serious to justify the bringing of an action before that time. In particular, neither plaintiff (through their "Capable Persons") had taken all reasonable steps, for the purposes of s 50D(2), in that neither had instructed solicitors in circumstances where the relevant Capable Persons for the plaintiffs knew of the desirability of retaining solicitors to advise in relation to legal matters: PJ[70], [86]-[89]. Section 50D, which provided for when a cause of action is "discoverable", relevantly provides (emphasis in original): 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts - (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. … 1. In the circumstances, the claims were discoverable prior to 15 July 2018 (the date 3 years before the proceedings were commenced) and as a result the proceedings were wholly barred by the Limitation Act: PJ[89]. 2. Dealing in the alternative with the award that would have been made if not precluded by the Limitation Act, damages for false imprisonment for each plaintiff would be assessed in the sum of $20,000, including aggravated damages: PJ[100]. 3. Damages for the assault (constituted by the strip search) for each plaintiff would be assessed in the sum of $20,000, including aggravated damages: PJ[101]. 4. It would not be appropriate to award exemplary damages: PJ[104]-[106].

The proceedings in this Court

1. It was common ground that the applicants require leave to appeal, having regard to s 127(2)(c)(ii) of the District Court Act 1973 (NSW) The respondent opposed the grant of leave to appeal in both cases.
2. It was also uncontroversial that leave to appeal will ordinarily only be granted where there are issues of principle, questions of general public importance or where it is reasonably clear that there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge erred (see, for example, Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69 and Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 at [12] per Bathurst CJ).
3. Mr Anderson's proposed grounds of appeal are: 1. The Court below erred in finding that the appellant's strip search did not constitute "child abuse" for the purposes of s 6A of the Limitation Act. 2. The Court below failed to take into account all of the circumstances in the appellant's case in determining whether reasonable steps had been taken by the appellant and the "Capable Persons" to ascertain the fact mentioned in s 50B(1)(c) of the Limitation Act (presumably the ground was meant to refer to s 50D(1)(c)). 3. The Court below erred in finding that the appellant and the Capable Persons ought to have known, prior to 15 July 2018, that the appellant's injury was sufficiently serious to justify the bringing of an action on the cause of action. 4. The Court below erred in finding that the advice provided to Gail Anderson by the legal centre she telephoned "muddied the waters as to the claim against police, but did no more than that".
4. The first three of those proposed grounds of appeal are also relied upon by Mr Perri, together with the following fourth ground (which reflects his different personal circumstances): 4. The Court below erred in finding that Elise Perri was in doubt about the distinction between "police matters" and "legal issues" in the context of taking action in relation to the strip searching of the appellant.
5. I will summarise and address the parties' primary submissions in the next section of these reasons for judgment.

Consideration and determination

1. Ground 1 in both proceedings raises the question of the proper construction of the expression "child abuse" in s 6A of the Limitation Act.
2. Grounds 2-3 raise matters concerning the application of s 50D of the Limitation Act. It is convenient to group these grounds. Ground 4 also raises matters concerning s 50D, specifically the relevance of the individual circumstances of each applicant to the issue of reasonable steps.

Section 6A of the Limitation Act and the meaning of child abuse: Proposed ground 1

1. It became apparent during the course of the hearing that there was no real dispute that, on a proper construction, the reference to "sexual abuse" as part of the definition of "child abuse" in s 6A(2) means conduct which has a sexual connotation.
2. There is no definition in the Limitation Act of sexual abuse, but a meaning that accords with conduct that has a sexual connotation is supported by the relevant extrinsic materials. As noted above, in concluding that a sexual connotation must exist before conduct can constitute child sexual abuse, the primary judge took into account at PJ[40] parts of the Royal Commission's Final Report in the chapter headed "Violation of Privacy". Having regard to the fact that the amendments to s 6A of the Limitation Act commenced on 17 March 2016 (i.e. prior to 15 December 2017, the date of publication of the Final Report by the Royal Commission) the relevant extrinsic materials are: Chapter 14 of the interim report published by the Royal Commission; a Discussion Paper entitled "Limitation periods in civil claims for child sexual abuse" dated January 2015 issued by the NSW government; and the second reading speech dated 16 February 2016 to the bill which introduced the amendments (the Limitation Amendment (Child Abuse) Act 2016 (NSW)).
3. In a glossary to the interim report, the Royal Commission defined "child sexual abuse" as follows: [A]ny act which exposes a child to, or involves a child in, sexual processes beyond his or her understanding or contrary to accepted community standards.
4. The Discussion Paper recorded in footnote 1 on page 3 that the term "child sexual abuse" included "conduct that would constitute sexual assault and sexual misconduct, including acts that would be classified as an indecent assault under the criminal law".
5. Finally, in the second reading speech to the bill, the then Attorney-General said the following: The definition in this bill is thus broad enough to cover the kinds of abuse associated with trauma, serious injury, and delayed disclosure, but not so broad as to cover trivial, accidental or other conduct that, on its own, is unlikely to cause trauma. To avoid being overly prescriptive, the bill does not exhaustively define what conduct constitutes "sexual abuse" or "serious physical abuse". Rather, the bill requires courts to determine whether or not abuse has occurred, having regard to the circumstances of each individual case and the ordinary meaning of the terms. The term "child abuse" should be interpreted in a beneficial manner.
6. These materials all support the position that for conduct to constitute child sexual abuse it must have a sexual connotation.
7. It also appears to be common ground that, whether or not conduct has a sexual connotation so as to constitute "sexual abuse", is essentially a question of fact. As was pointed out by the Court, this is important to the question of whether it is appropriate to grant leave. Perhaps recognising the difficulty which this presented for the leave applications, the applicants (who were both represented by Mr AC Canceri and Mr JE Doyon of counsel) submitted that leave should be granted, inter alia, in order to clarify that the test in determining whether conduct has some sexual connotation is an objective one. Mr Canceri described the applicants' "primary point in respect of s 6A" in the following terms: It is a question of fact as to whether the conduct and we say objectively viewed carried a sexual connotation and we say when objectively viewed, it does.
8. In oral address, Mr Canceri accepted the proposition that, while an objective test is appropriate, that is not to say that the subjective intentions of the perpetrator are irrelevant in all matters. He acknowledged that the requisite sexual connotation could be provided where it was plain that the perpetrator was motivated by sexual desire.
9. Whether or not the strip searches carried out here (which were not merely confined to requiring both the applicants to undress, but also to squat and handle their genitalia) involved a sexual connotation, was the very matter which the primary judge addressed and determined at PJ[40] and [41] (which are set out at [16(5)] above). The primary judge's reasons are consistent with an objective assessment having been applied to the events which occurred. No arguable error of law or fact has been demonstrated in his Honour's reasons.
10. This is not an appropriate case in which to grant leave to appeal in circumstances where the applicants' complaints relating to the primary judge's rejection of their claims (that the conduct of the police constituted "child sexual abuse") is fundamentally an unconvincing complaint about fact finding. No issue of general principle or general public importance is raised and no substantial injustice is identified.

Section 50D of the Limitation Act: Proposed grounds 2 and 3

1. It is convenient to address proposed grounds 2 and 3 together, which is how the applicants' cases were presented in their respective summaries of argument.
2. As noted above, the alternative case relied upon various provisions in the Limitation Act relating to the question of when the applicants' causes of action were discoverable. Section 50C(1)(a) relevantly provided that an action on a cause of action to which Div 6 of Pt 2 of the Limitation Act applied (which was the case here) is not maintainable if commenced after the expiration of the "3 year post discoverability limitation period". That expression refers to the period of 3 years commencing on the date on which the cause of action is discoverable by a plaintiff. Section 50D defined when a cause of action is "discoverable". It is the first date upon which the person knows or ought to know of each of the facts set out in 50D(1)(a) to (c) (which are set out at [16(6)] above). Sub-section 50D(2) provided that a person ought to know of a fact at a particular time if the fact would have been ascertained by the person had that person taken all reasonable steps before that time to ascertain the fact. In a case such as the present, where the applicants were minors at the time the relevant events occurred, s 50F(3) provided that facts that are known or ought to be known by a capable parent or guardian of the minor are taken to be the facts that are known or ought to be known by the minor.
3. Both applicants claimed that their causes of action were not discoverable before about March 2021 which meant that their proceedings had been commenced within the time period specified in s 50C(1)(a).
4. In the case of Mr Anderson, the primary judge identified Gail and, to a lesser extent, Melissa Anderson as the relevant "Capable Persons". For Mr Perri, Elise Perri was ultimately found to be the relevant "Capable Person" (in circumstances where Ms Josephine Perri, Mr Perri's grandmother, was not informed of the events until many years later: see PJ[75]).
5. The applicants do not dispute the primary judge's finding that a key question for the purposes of s 50D(1)(c) was when, as a reasonable step, the relevant Capable Persons would have instructed a solicitor and obtained legal advice as to the applicants' respective rights arising from the relevant events. In the case of Mr Anderson, the primary judge concluded at PJ[77]-[85] that both Gail and Melissa Anderson were aware of the significance of the events that had occurred and had doubts as to the legality of the actions of the police. The need to obtain legal advice if a matter were to be pursued against the police was "made evident".
6. In the case of Mr Perri, his Honour concluded at PJ[71]-[74] that a necessary step in order to satisfy the s 50D(1)(c) fact was retaining a solicitor to clarify the legal situation.
7. The applicants do not contend that the primary judge erred in his understanding of the relevant principles. This is unsurprising, given the primary judge's acknowledgment that those principles were authoritatively stated in State of New South Wales v Gillett [2012] NSWCA 83 (see PJ[43]).
8. The applicants' complaints focused on the primary judge's application of those principles to the circumstances and his Honour's fact finding, particularly those in relation to his conclusions at PJ[86] to [89] that the relevant Capable Persons ought to have known that the applicants' respective injuries were sufficiently serious to justify the bringing of an action, such that the cause of action was discoverable prior to 15 July 2018. The applicants contended that the critical question was whether the s 50D(1)(c) fact could have been ascertained by the relevant Capable Persons prior to 15 July 2018 had they taken all reasonable steps before that time to ascertain the fact. Each applicant complained that the primary judge had failed to take into account all of their respective relevant circumstances in determining whether reasonable steps had been taken.
9. For the following reasons none of these complaints warrants a grant of leave to appeal.
10. In Mr Anderson's summary of argument, reference was made to nine matters or circumstances which Mr Anderson claimed were not considered by the primary judge in determining whether reasonable steps had in fact been taken by him and the relevant Capable Persons to ascertain the fact in s 50D(1)(c). Most of those matters or circumstances related to the applicant as opposed to the relevant Capable Person (such as the claim that Mr Anderson possessed limited financial resources; the death of his father in 2010; that Mr Anderson had not unreasonably attempted to bury the relevant traumatic events; and that Mr Anderson had never had to pay for representation in criminal matters).
11. The difficulty with these claims, however, is that, as the primary judge correctly pointed out at PJ[51], the effect of s 50F(3) is that, where a minor is involved, the relevant focus is on facts that are known or ought to be known by a Capable Person (which are then taken to be facts that are known or ought to be known by the minor). Understandably, therefore, the primary judge stated at PJ[52] that it was necessary to examine the knowledge of each Capable Person from 7 April 2011 up until the date when each applicant turned 18. The primary judge then implemented that approach in relation to each of the applicants with reference to the matters set out in ss 50D(1)(a) to (c).
12. In the case of Mr Anderson, it is understandable that the primary judge focused the most attention on the reaction of both his Capable Persons (i.e. Gail and Melissa Anderson), including the fact that they were "horrified" when they found out what had occurred. His Honour then assessed the steps which each of them took in obtaining legal advice regarding the possibility of bringing a civil action against the police.
13. In the case of Ms Melissa Anderson, his Honour found at PJ[81] that she called the Aboriginal Legal Service and was advised that the ALS did not handle civil cases against the police. She then conveyed this to her mother. His Honour concluded that, accordingly, the distinction between criminal and civil matters had been brought to the attention of both those Capable Persons. The primary judge then turned to Ms Gail Anderson's evidence concerning the advice she obtained from the unidentified legal centre that a strip search could be justified if the police suspected that her grandson was carrying something dangerous, information which she passed on to her daughter, Melissa. Yet neither of them took the matter any further notwithstanding that in the case of Ms Gail Anderson, she still considered that what had been done to her grandson was wrong.
14. As to the claim that Mr Anderson buried his feelings about the relevant events, the evidence clearly indicated that he had told his grandmother at the police station what had occurred.
15. No sufficiently arguable error has been demonstrated in the primary judge's ultimate conclusion at PJ[85] that, in Mr Anderson's case, more was needed than just a phone call to a legal service "where a no doubt unspecific enquiry produced an unspecific reply".
16. In the case of Mr Perri, reference was made in his summary of argument to six circumstances confronting him and Ms Elise Perri. They included the death of his father in July 2010 and the institution of Family Court proceedings concerning his guardianship; the delay in telling Ms Josephine Perri about the April 2011 events so as to shield her from the associated trauma; the fact that the relevant torts were not as well known to the general public compared with the tort of negligence; the fact that Mr Perri had not unreasonably attempted to bury the trauma of the events; Mr Perri's evidence that he thought he was unable to bring a claim because the actions of the police were "the normal thing that happened"; and Ms Elise Perri's evidence regarding the distinction between a matter being "a legal issue" as opposed to a "police issue".
17. Many of those matters or circumstances relate to Mr Perri's position as opposed to that of Ms Elise Perri. As noted above, the primary judge correctly focused on the evidence relating directly to the knowledge and actions of Elise and Josephine Perri, not the applicant as he was a minor. The evidence also indicated that, when the incident occurred, Mr Perri was effectively being raised by his aunt, Elise Perri (a retired teacher and administrative assistant to her husband, who was a medical specialist. As to the claim that Mr Perri internalised his reaction to the relevant events, the evidence indicates that he described his experience to his aunt when she arrived to collect him from the police station.
18. The primary judge explained why he did not consider Ms Josephine Perri to be a relevant Capable Person (see at PJ[75]). This finding is not challenged. His Honour then explained at PJ[71]-[74] why he considered that Ms Elise Perri ought to have retained a solicitor in order that the s 50D(1)(c) fact could be established.
19. As is the case with Mr Anderson, to the extent that the primary judge failed explicitly to address the remaining circumstances identified above in respect of either of the applicants, none of those circumstances is of such weight and significance as to suggest that a different outcome might be possible. Accordingly, no substantive injustice has been demonstrated.
20. His Honour's reasons do not disclose any arguable error, either of law or fact, so as to warrant leave to appeal.
21. I turn now to consider proposed ground 4 in both cases.

Challenges to particular factual findings: Proposed ground 4

1. In relation to Mr Anderson, the primary judge found at PJ[84] that Ms Gail Anderson was advised in a telephone call to an undisclosed legal centre (which related solely to the strip search) that a strip search could be justified if the police suspected that her grandson was carrying something dangerous. His Honour stated that this advice "may have, at best, muddied the waters as to a claim against police, but it did no more than that".
2. It was contended that this finding was "against the incontrovertible fact established by the testimony". In support of this contention, the Court was taken to various parts of the transcript of Ms Gail Anderson's evidence concerning the advice she received from the unidentified legal centre. It was then submitted that the advice was wrong, but it was relied upon by Ms Gail Anderson.
3. As was pointed out by the Court in oral address, when regard is had to the whole of the relevant evidence, Ms Gail Anderson was aware (based on the advice she received from the police officer on 7 April 2011, as well as the advice from the legal centre) that the strip search was legal if there was a suspicion that the person detained was hiding something dangerous. Plainly, Mr Anderson's grandmother did not believe that the police were searching for something dangerous. Thus, she must have thought that what had occurred was wrong. Yet, despite this belief, she took no further steps to obtain appropriate legal advice.
4. For these reasons, contrary to Mr Anderson's claim, Ms Gail Anderson's evidence was not incontrovertible or inconsistent with the primary judge's view that the advice from the undisclosed legal centre "muddied the waters".
5. Turning to Mr Perri's complaint, the Court was taken by his counsel to various parts of the evidence given by his Capable Person, Ms Elise Perri. As the primary judge noted at PJ[73], Ms Perri said that she did not obtain legal advice at the time because she considered what had happened to her nephew to be "a police matter" not "a legal issue". His Honour added at PJ[74] that if Ms Perri was in any doubt about the distinction between "police matters" and "legal issues" she had every opportunity to seek legal advice to clarify the situation.
6. The Court was taken to various parts of Ms Perri's cross-examination in support of the contention that in fact Ms Perri believed there was a distinction between a police matter and a legal issue and had no doubt as to the distinction. The difficulty for Mr Perri lies in the fact that Ms Perri gave evidence that she had assisted her nephew to obtain legal representation for criminal matters from time to time and that she knew how to retain a lawyer if needed. When it was put to Ms Perri in cross-examination that she didn't seek advice from anybody about what her nephew had experienced on 7 April 2011, she responded: No, I didn't think it was a legal issue. I thought it was a police issue. I thought it would be the police that I would be complaining to.
7. This evidence is not inconsistent with the primary judge's statement at PJ[74] to which complaint is now made. The primary judge did not make a clear finding that Ms Perri had any doubt about the distinction. Rather his Honour's statement was expressed to be based on the premise that "if she was in any doubt about" that distinction.
8. In any event, even if there was some error in the primary judge's statement (contrary to what I have said above), the materiality of that error is problematic. This is because the primary judge made a separate finding at PJ[72] (which is unchallenged) that Ms Perri's decision not to take the matter further was quite deliberate because she perceived that "it might make things worse in some way" if the matter had been pursued.
9. I am not persuaded that the applicants should have leave to appeal in respect of proposed grounds 2-4.

Conclusion

1. For all these reasons, I propose that the applicants' respective summons seeking leave to appeal (both filed on 12 December 2022) be dismissed, with costs.

Amendments 12 July 2023 - Headnote typo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2023