BRIGGS v SEWELL

Court of Appeal (NSW)|2002-07-02|Before: Sheller JA, Hodgson JA

The application was brought by Notice of Motion, filed 4 September 2001, and was supported by two affidavits, one by Ms Sewell's solicitor dated 3 September 2001 and the other by Ms Sewell of 9 September 2001. 12 Ms Sewell's affidavit sought an extension of time to commence the proceedings to 7 November 2000. It referred to "the circumstances of the allegations, the subject of the claim", as being set out in statements made at Tweed Heads Police Station on 17 and 24 July 2000, together with a further statement made on 5 July 2000. 13 These statements provide, in some detail, allegations of sexual assault by Mr Briggs on Ms Sewell from 1980 to 1983, whilst she was a schoolgirl and ending when she was about age fifteen, at which time she was able, effectively, to resist him. The assaults were alleged to have taken place in the home when her mother was absent and she was in the care of her step-father, Mr Briggs. Ms Sewell further alleges that on Father's Day in 1987 she visited her mother in hospital, she having, at that stage, left home. Mr Briggs was present. There was an altercation in which she invited him to tell her mother of what had taken place between them. She alleges that, a few days after her mother came out of hospital, Mr Briggs confessed to her that he had molested Ms Sewell in the past. Ms Sewell was upset that her mother continued to reside with Mr Briggs after receiving this information, with the result that she, her mother, Mr Briggs and her brother all sought counselling from a priest of the Catholic Church. She said in her statement that "the counselling was to do with Darrel abusing me". 14 The statement indicates that thereafter her mother and Mr Briggs sought counselling from a psychiatrist, Dr Terry Cook. Her mother took her to see this doctor. She says that she discussed her step-father's abuse of her with him and started to consult the doctor regularly until she moved to Brisbane in 1990. Before that she had made a complaint about her step-father, on 25 May 1989 to the Child Mistreatment Unit, Parramatta Police. She provided a statement to an interviewing detective, the contents of which appear in her statement of 17 July 2000. The statement is a brief one but refers, in detail, to at least one allegation which is repeated in her later statement. In this statement of 25 May 1989 she indicates that she was not prepared to go to Court. 15 Her statement continues by indicating that since moving to Brisbane in 1990 she had had "counselling about the sexual abuse that Darrel gave me" from three named doctors in Queensland. She also states that on 16 June 1992 she wrote to a solicitor in Sydney, who was then acting for a woman who had become Mr Brigg's defacto wife, there having been a prior divorce from Ms Sewell's mother. It appears that there were proceedings in the Family Court to which this information could be relevant. The information was later contained in an affidavit which was part of the evidence placed before his Honour. It refers to the physical and sexual assaults allegedly made upon Ms Sewell by Mr Briggs, indicating that, although she was still suffering the effects of this abuse, she had not been prepared to take the matter to Court. 16 Her statement ends with an assertion that, because of the continuing effect upon her of Mr Briggs' actions, she believed it was time to make him "face up to what he did". 17 In her affidavit Ms Sewell speaks of her consultations with Dr Terry Cook from 1988 until 1994, after which she did not see him again until 22 August 2000 at which time she says that she "finally realised the full extent of the implications and consequences that the abuse and sexual assaults" had had upon her. 18 She then speaks of counselling she had received in Queensland from 1998 with Relationships Australia and also Dr Mariette Keane of Stafford City Medical Centre "over a ten year period". She states that "after a couple of months of intense counselling treatment with Robin Knowles from Relationships Australia she began to realise that all her problems were because of the abuse and sexual assaults" and that it was not until around April/May 1998 that she "realised the connection between my terrible mental state and the abuse and sexual assaults by the respondent/defendant." On 19 July 2000 she consulted Mrs Elyse White, her solicitor, in relation to the assaults. She had not discussed these matters with a solicitor before and, on this occasion, was advised of the limitation period of which she had previously been unaware. It may be noted that she made her statements to the police at this time. She further says that: "On 23 July 2000 I spent 8 hours putting together a Chronology and a set of circumstances outlining my experiences and feelings as a result of the abuse and sexual assaults by the Respondent/Defendant. It was only at the conclusion of the long period of time in front of the computer analysing my circumstances that I fully realised the precise implications to me and to my life as a result of the humiliation that the Respondent/Defendant subjected me to." 19 She asserts that when she attended the Tweed Heads Police Station on 17 and 24 July 2000 she then realised: "that the sexual assault had impacted on my life to such an extent that I was having difficulty in the following areas: (i) nightmares; (ii) relationships - difficulty forming and maintaining sexual relationships. (iii) chronic post traumatic stress disorder; (iv) anxiety; (v) stress; (vi) depression; (vii) irritability; (viii) flashbacks; (ix) suppression of memories; (x) avoidance of social situations; (xi) poor concentration; (xii) lack of enjoyment of sexual intercourse; (xiii) deterioration of relationships with family, particularly my mother; (xiv) abnormal protection of children; (xv) loss of enjoyment of life; (xvi) amnesia; (xvii) requirement for medication, including anti-depressants; (xviii) requirement of psycho-therapy treatment." 20 Her solicitor, Ms White made an affidavit which indicated that she had been consulted by Ms Sewell on 11 July 2000 in relation to the bringing of proceedings against Mr Briggs, and had advised her that those proceedings were statute-barred unless she were successful in having the limitation period extended by order of a Court. She annexed to her affidavit reports from Dr McClure, Consultant Psychiatrist, Dr Marriette Keane, Dr Terry Cook and Relationships Australia which set out the dates of consultations with Robin Knowles between 11 August 1998 and 2 August 2000. 21 Dr McClure diagnosed Ms Sewell as suffering from "Chronic Post Traumatic Stress Disorder", directly causally related to the assaults by Mr Briggs. She said: "It has been my experience that persons suffering from early-onset Post Traumatic Stress Disorder frequently remain silent about their experiences and often avoid - for 10 years, or more - reporting these experiences to the appropriate authorities. This is clearly occurring in your client's case." 22 Dr Keane, whose report was dated 4 February 2001, indicated that Ms Sewell had been her patient for over ten years and "had in excess of 30 consultations relating to her psychological state" in which she had disclosed a history of sexual abuse by her step-father which had taken place over a period of several years. She had referred Ms Sewell to a consultant psychiatrist for counselling. 23 Dr Cook's report is dated 30 August 2000. It relates that he first saw Ms Sewell on 26 October 1988 at her mother's request. He says: "Ms Sewell was distressed because her mother was remaining in a relationship with a man who had allegedly sexually abused her from the ages of 12 to 14 years. Ms Sewell presented with a mixed anxiety/depressive state with irritability that she related to ongoing anger as a result of the abuse. Ms Sewell felt that her ongoing symptoms had affected her relationships with others."

24 He saw Ms Sewell again on 16 March 1991. She presented with depression. She was experiencing relationship difficulties with her partner and "expressed continuing concerns relating to the experiences she had with her mother's former partner". She and her partner had sought marital therapy in Queensland "as a result of her difficulties." 25 From November 1992 until May 1999 Ms Sewell had seen the doctor on eight occasions. He says that over this period she had sought counselling over "relationship issues, ambivalence about relationship choices, sexual difficulties, direction in life, and so on." No medication was prescribed as these difficulties did not represent any major mental illness. Dr Cook concluded his report as follows:- "My involvement with Ms Sewell has been of a supportive nature only as it was believed that she would return to Queensland to involve herself in more involved counselling which would have involved addressing the sexual abuse issues from her past. My most recent contact with Ms Sewell was for a review on the 22nd August 2000. At this time she expressed a wish to resolve the residual anger which she had towards her mother's ex-partner by having him charged for the offences reportedly committed against her." 26 The letter from Relationships Australia, annexed to this affidavit, indicates that between August 1998 and August 2000 Ms Sewell sought counselling in Queensland, on a regular basis, on twenty-four occasions. 27 As already indicated, Mr Briggs placed no material before his Honour. However, Ms Sewell was cross-examined by counsel on his behalf. It is necessary now, to make brief reference to the course of the proceedings before his Honour. 28 At the outset of the hearing his Honour enquired as to the section of the Act under which the Notice of Motion was brought. He was told by counsel that it was the 1969 Limitation Act. It appears sufficiently from the course of the hearing that the specific sections involved were ss 60G and 60I. It was accepted that, although the assaults relied upon occurred before 1 September 1990 the operation of Schedule 5 to the Act bought the case within the potential scope of s 60G. I shall refer to these sections later. As the plaintiff was born on 7 July 1968 and turned eighteen on 7 July 1986, the limitation period expired on 7 July 1992. Her Statement of Claim, dated 2 November 2000 was, therefore significantly out of time. 29 In her oral evidence Ms Sewell, in chief, gave the following answers to the following questions:- "Q. At the time that you finished your statement to the police and signed it in July last year, you had mentioned prior to that that you had problems, behavioural and so on, in your family life. What was your understanding at that time of the connection between those problems that you were having and the complaint that you'd made? A. I believe all of my problems came out once I made the complaint. I realised that my problems with my family and my children were related back to my incidents when I was younger. Q. What incidents are you referring to particularly? A. Sexual assault, physical assault, mental abuse. Q. Involving the defendant you're talking about? A. Yes that's correct. Insecurity. Q. Prior to your giving that statement over that two day period had you appreciated that all those matters that you referred to were connected in your own mind with the previous assaults? A. No I had not." 30 This assertion was challenged in cross-examination. It was put to Ms Sewell that it was, in fact, untrue. It was put to her that as early as 1988, she had gone to psychological counsellors and made complaints in relation to her former step-father's actions. She agreed with this but maintained that it was not until she had actually made her statement that she had "ever discussed fully with any counsellor, lawyer or police the full depth of what had occurred" with her. She agreed however, that in 1988 she had, as a result of some assaults, ended up with some psychological symptoms for which she required counselling. 31 A large part of the cross-examination is, quite clearly, directed to an attack upon her ability to recollect and also upon her veracity. Faulty recollection of dates was a feature of this attack. 32 Also, cross-examination was directed to consultations with Dr Cook and other medical practitioners in the 1990's and her provision of information in the affidavit in the Family Court Proceedings involving Mr Briggs. This cross-examination was fairly general in its terms and would appear not to have been based upon any medical records available to the cross-examiner. 33 In re-examination, Ms Sewell stated that prior to seeing the psychiatrist, Dr McClure in August 2000, she had never been diagnosed as suffering from Post Traumatic Stress Disorder relating to Mr Briggs' alleged assaults upon her. 34 There is no record of counsels' addresses to his Honour but, as a result of questioning from the bench in the present application, it appears that those addresses covered all issues that could be raised under ss 60G and 60I of the Limitation Act 1969. 35 Before turning to his Honour's judgment, it is convenient to set out these sections together with some discussion as to their meaning and effect.

Section 60G(2) provides as follows:- "If any application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines." 37 Section 60I, so far as relevant, provides as follows:- " Matters to be considered by court (1) A court may not make an order under section 60G …unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i) - (iii). (2) ……….." 38 The present case raised a clear dispute as to whether Ms Sewell had brought herself within the provisions of s 60I;both as to whether she had failed to achieve the appropriate degree of awareness before the expiration of the limitation period on 7 July 1992 and as to whether, that degree of awareness having been achieved only at a later date, she had failed to apply for an extension of time to sue within three years of that date. If she failed in either respect, then the question, pursuant to s 60G(2), whether it was just and reasonable to extend the limitation period could not arise. The decision in Drayton Coal Pty Limited v Drain (CA 40418/95) provides guidance in the interpretation of this section. In that case Gleeson CJ said:- "2. The requirement, in s 60I(1)(a)(iii), that the plaintiff was, at a specified time, unaware of the connection between the plaintiff's personal injury and the defendant's act or omission, is not identical to a requirement (of a kind which might be inferred from s 60F) that the plaintiff was unaware of the cause of the injury. (The decision of Dedousis turned upon that difference). 3. Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. The legal complexion which may be put upon a set of facts or circumstances (eg actionable negligence), and the plaintiff's awareness of that legal complexion, is not what matters for the purpose of s 60I(1)." 39 In the same case, Gleeson CJ said that in resolving problems under the section it might be necessary for a Court to consider questions of degree. His Honour said:- "In the evaluation of a contention that a plaintiff was unaware of the connection between the plaintiff's injury and the defendant's act or omission, a court may well be confronted with a situation where, before and at the relevant time, the plaintiff was aware of some acts or omissions on the part of the defendant, and the connection between those acts or omissions and the plaintiff's injury, but not of other acts or omissions upon which reliance will be placed at a trial. The mere fact that a plaintiff's lawyers can think up some act or omission, upon which they will wish to place some reliance at a trial, which was not known to the plaintiff at the relevant time, does not automatically mean that the requirements of s 60I(1)(a)(iii) are satisfied. On the other hand, the decision in Dedousis establishes that unawareness of a material act or omission which constitutes a substantial ground upon which reliance will be placed is sufficient to satisfy s 60I(1)(a)(iii)." 40 In my opinion, a question of degree also arises where a plaintiff, although fully aware of the defendant's acts or omissions at the relevant time and of their connection with some personal injury to him or her is, nevertheless not aware of the full nature or extent of his or her personal injury connected with those acts or omissions. The benefit of the section will be available, provided that before the expiration of the relevant period, he or she had not become aware of additional matters of personal injury connected with the defendant's acts or omissions which, together with the aspects of injury already known, served to make up the full "nature or extent of personal injury suffered". Where this situation obtains, the three year limitation period stipulated in s 60I(1)(b) does not commence to run until the potential plaintiff becomes aware (or ought to become aware) of all the significant elements of his or her personal injury and of the connection of each of those elements with the relevant acts or omissions of the defendant. 41 Accordingly, in my view, the first question in the present case would be whether Ms Sewell had, before 7 July 1992, become aware, or ought to have become aware, of the full nature and extent of her personal injury and its connection, in all significant respects, with Mr Briggs' alleged assaults upon her in the years 1980 to 1983. This, necessarily, would be a difficult question, because the alleged injuries were psychological and psychiatric in nature with impact on many areas of her life. 42 If not, the next question would be whether, pursuant to s 60(1)(b), she had made her application for extension of time within three years of achieving the degree of awareness referred to. The answer to this question would require a finding as to the date by which that degree of awareness had been achieved or ought to have been achieved. 43 The judgment of the trial judge

His Honour, having set out the claims as made by Ms Sewell in her Statement of Claim, then turned to the evidence, affidavit and oral. He noted that the plaintiff's Notice of Motion was based upon s 60G(2) of the Limitation Act 1969 and "the so called gateway provisions in s 60I". In relation to the plaintiff's oral evidence he made the following comments: "The applicant was strenuously cross-examined about various aspects of history. As a consequence on that cross-examination, it could not be said other than that the applicant was vague and inconclusive about some aspects of that history as disclosed not only in her evidence but also in a statement which was made to the Police Department of recent times." 44 His Honour then referred to the plaintiff's having made first contact with Dr Cook around 26 October 1988 and that she had seen him from time to time thereafter. He does not refer to the gap in her consultations with Dr Cook resulting from her moving to Queensland. However, his Honour specifically refers to the following paragraph in Ms Sewell's affidavit: "I did not see Dr Cook again 22 August 2000 which was the time that I finally realised the full extent of the implications and consequences that the abuse and sexual assaults by the respondent/defendant had had on me." 45 His Honour then made reference to Ms Sewell's evidence as to her counselling from 1998 by Relationships Australia in Queensland as a result of which the applicant had said "I began to realise that all my problems were because of the abuse and sexual assaults I had been subjected to by the respondent." 46 His Honour then stated: "The applicant said and maintained under strenuous cross-examination that it was not until at least May 1998 that she realised the connection between her mental state and the abuse and sexual assaults by the respondent."

It may be noted that, as pointed out by counsel for Mr Briggs, this statement repeats the wording of a paragraph of Ms Sewell's affidavit but omits reference to her mental state as being "terrible" at that time. 47 His Honour then made reference to the applicant's consulting Mrs White on 19 July 2000, of her then being advised of the limitation period and the placing in train, thereafter, of the proceedings to extend time. With reference to her attendance at the Tweed Heads Police Station at this time his Honour said: "She gave a statement about the nature and extent of her problems. She said and I accept that it was only at the time that she divulged her history to the police that she realised the sexual assault had impacted upon her life and caused her psychological and psychiatric problems." 48 Later, after a discussion of the requirements of s 60I(1)(a)(i), (ii) & (iii), his Honour said: "In this case the evidence which I accept from the plaintiff is that as I have previously mentioned she was at the date of expiration of the time limit unaware of the connection between the personal injury and the defendant's act or omission. And I am also satisfied that the application has been made within three years of her becoming aware of it." 49 His Honour expanded upon this statement in the following paragraph: "It was suggested that the evidence which related to attendance on various medical practitioners in 1988 and counsellors subsequently, was evidence that more likely than not the applicant was aware of the connection between the personal injury and the defendant's act or omission; however I accept the evidence of the applicant that it was not until around about April or May that she realised the connection between her mental state and abuse and was not indeed until 19 July 2001 that she had discussed these matters with her solicitor and was aware of any limitation periods; therefore I am satisfied that the date upon which she became aware for the purposes of s 60G(3) was 19 July 2000." 50 It is accepted that the reference to "April or May" in this paragraph is a reference to those months in 1998. If his Honour was intending to convey that in those months Ms Sewell had achieved the state of awareness contemplated in s 60I(1), then the three year period in s 60I(b) had expired before she made application for the extension of time under s 60G, and she had lost the benefit of the section. It is also accepted by the parties that his Honour's reference to s 60G(3) was an error, in that his Honour intended to refer to s 60I(1)(a)(iii). 51 It appears that this passage represents his Honour's ultimate finding on the question of the applicant's entitlement to the benefit of s 60I. It, undoubtedly creates difficulties. It appears from it that his Honour has selected the 19 July 2000 as the commencing date for the running of the limitation period, on the basis that it was on that date that she received legal advice as to the existence of the limitation period and instructed her solicitor to take the subject proceedings. If this be so, then an inappropriate basis has been selected for the commencement of the period. The relevant date under s 60I is the date of awareness of the matters referred to in subsections (a), (b) and (c) and not of the existence of the limitation period referred to in the legislation. 52 It is, of course, possible, having regard to the other passages in the judgment which I have set out, that his Honour merely made a slip in this paragraph and, in fact, intended to refer to the other events around that date in July which may have stimulated the applicant's level of awareness. However, in a matter which is as critical as this is to the application, I have come, with some regret, to the conclusion that it would be inappropriate to seek to reconstruct his Honour's finding. Furthermore, a finding in Ms Sewell's favour would require reasons explaining why her level of awareness in May 1998 of the nature and extent of her injuries and their connection with the conduct complained of was not such as to defeat her application. 53 I consider that this is a matter of sufficient significance to warrant the granting of leave to appeal. I would propose that leave be granted and I would also propose that the appeal be upheld with costs and that the judgment and orders in the Court below be set aside. 54 The result

I have considered whether this Court might deal with the application itself. However, I have regretfully come to the conclusion that this should not be done. We do not have the benefit of hearing and seeing the applicant in the witness box. The validity of her recollections and her veracity are significant questions in the application not only of s 60I but also s 60G. In the circumstances, I would propose that the matter be returned to the District Court for rehearing. This removes the necessity of considering the claimant's application to introduce the fresh evidence referred to. That question is more properly to be considered by the trial judge. As there is to be a new hearing, I refrain from dealing with the arguments raised in relation to s 60G. Whatever the outcome of Ms Sewell's application to obtain the benefit of s 60I, there will remain very serious considerations as to whether it would be just and equitable to extend the time, having regard to the very significant period of time that has elapsed since the alleged assaults. The authorities clearly indicate the approach that must be taken in determining this issue, the onus of establishing which lies upon Ms Sewell, subject to an evidentiary onus on Mr Briggs to identify issues in the case and respects in which he claims those issues cannot now be fairly tried. 55 Accordingly, I propose the following additional orders:

That this application be remitted to the District Court to be heard and determined in accordance with these reasons and that the costs of the first application be determined by the judge hearing the remitted application.

The respondent to the appeal to have a certificate under the Suitors Fund Act, if otherwise entitled. ******************

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.

CITATION : BRIGGS v SEWELL [2002] NSWCA 182 FILE NUMBER(S) : CA 40936/01 HEARING DATE(S) : 14/06/02 JUDGMENT DATE : 2 July 2002

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