Eijkman v Magann; McGloin v Magann; Trustees of the Roman Catholic Church of the Diocese of Parramatta v Magann

(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)." 11 Mr Magann did not contend that, at any time material to his application, he was unaware that personal injury had been suffered (s 60I(1)((a)(i)), or that he was unaware of the connection between his personal injury and the defendants' acts or omissions (s 60I(1)(a)(iii)). 12 The first issue for the judge was whether Mr Magann was unaware of the nature or extent of personal injury suffered (s 60I(1)(a)(ii)), at the expiration of the various limitation periods or at a time before that expiration when proceedings might reasonably have been instituted. The second issue was whether Mr Magann had become aware or ought to have become aware of the nature or extent of personal injury suffered more than three years before he made his application (s 60I(1)(b)), that is, prior to 7 January 2001. The third issue was whether, in the exercise of the discretion under s 60G(2), it was just and reasonable to order that the limitation periods be extended until the commencement of the proceedings on 19 May 2003 (or possibly until the filing of the proposed amended statement of claim, although it was not suggested that the later time was of significance). 13 The judge gave his decision on 12 November 2004. 14 The judge found that Mr Magann was aware of the nature of his injury "from at least the time the alleged abuse by [Father McGloin and Mr Eijkman] ceased", that is, from at least the end of 1991. That finding was not in issue in this Court. Whether Mr Magann was aware of the extent of his injury was a separate matter (The Commonwealth of Australia v Dinnison (1995) 56 FCR at 403; The State of New South Wales v Young [2004] NSWCA 204 at [13]). His Honour found that he was not so aware until October 2002, when he became aware upon reading the report of a psychologist, Ms Judith Carroll. 15 The judge said he was satisfied that the application was made "three years after the applicant became aware (or ought to have become aware) of all 3 matters set out in s 60I(a)(i) - (iii), that is October 2002", no doubt meaning within three years. 16 Then addressing whether he should exercise the discretion under s 60G(2), the judge referred to a number of matters including that he considered that the lapse of time was not such that the defendants could not have a fair trial and, with reservations, that he accepted Mr Magann's explanation for the delay. He concluded that the appellant had established "grounds" for grant of "the indulgence under s 60G of the Act". 17 The judge made "orders in accordance with paragraph 1 of the amended notice of motion". No one contested that any necessary plurality should be accommodated. 18 At the end of his reasons, and before making the orders, his Honour added - "Paragraph 9 and 17 of the Applicant's amended statement of claim plead fiduciary duty and damage due to breach which was denied both as to the existence of such a duty and the Applicant's circumstances as to breach. It seems to me this is a question of both fact and law that should be left to the trial judge, I having granted leave to the Applicant under s 60G."

The issues on appeal 19 Each of the issues before the judge was raised on appeal. The appellants (as I will proleptically describe them) submitted that his Honour had applied a wrong test in determining whether Mr Magann was aware of the extent of his injury, and that in any event he had erred in finding that Mr Magann was not aware of the extent of his injury until October 2002. They submitted that he had failed to consider s 60I(1)(b) of the Act and had erred in failing to find that Mr Magann ought to have been aware of the extent of his injury prior to 7 January 2001. They submitted that he had erred in the exercise of his discretion under s 60G of the Act. They submitted as well that his Honour had erred in "failing to determine that [Mr Magann] should not be permitted to circumvent a limitation defence by raising an allegation of breach of fiduciary duty".

Breach of fiduciary duty 20 It is convenient to deal with this last matter before going further. The submission is misconceived, but the explanation of why that is so needs some reference to the course of the application in the District Court. 21 Initially it was said that the judge failed to deal with the submission that he "should disregard [Mr Magann's] reliance on alleged breaches of fiduciary duty … in determining whether an extension of time should be granted … ". The judge did disregard it, in that he left the claims for breach of fiduciary duty for the trial judge. Perhaps "disregard" meant something like "treat as without foundation", because the submission on appeal became, in substance, that the judge should have struck out the claims for breach of fiduciary duty, and even if he should not have this Court should strike them out if it granted leave to appeal and upheld the appeals. The appellants relied in this respect on Williams v Minister, Aboriginal Land Rights Act 1983 (No 2) (1999) 25 Fam LR 86 and Woodhead v Elbourne (2001) 1 Qd R 220. In the former case Abadee J observed at 240 that fiduciary duties "should not be found, additional to common law duties, merely for forensic purposes in order to avoid or circumvent limitation periods … ". In the latter case at 231 White J agreed with those sentiments. 22 Mr Eijkman had filed a notice of motion seeking to strike out the claim against him for breach of fiduciary duty. The application was not listed for hearing before the judge. At the commencement of the hearing counsel for Mr Magann, Mr D J Russell SC, told the judge of it, and said that it was not necessary that it be dealt with "at this stage". 23 Counsel for Mr Eijkman, Mr I Harrison SC, sought to read in his case an affidavit of his solicitor, Mr Gregory Walsh. The transcript records - "RUSSEL [sic]: This goes to the other motion I mentioned in opening yesterday, which is moving to strike out parts of our pleading. HARRISON: Can I indicate that it will also go to this: part of the allegation that is made in the amended statement of claim is that there was a breach of fiduciary duty, on the part of the third defendant at least, which led to the same damage as is alleged to have been occasioned by the other causes of action pleaded. If there were an argument available, legally we contend that there is not, but if there was an argument available that the statute of limitations did not apply to breach of fiduciary duties, this evidence goes to establishing that at the time of the two isolated incidents complained of against the third defendant, that they were not incidents that occurred in the context of, or when there existed a fiduciary relationship between the plaintiff and the third defendant. Striking it out would only be relevant if your Honour were otherwise minded to grant leave to proceed on the other claims. It is a matter of no consequence to us, I suspect, nor is it to my learned friend, in which order it is dealt with. I simply thought it appropriate to read this evidence now. HIS HONOUR: This wasn't to be before me, this motion on the fiduciary duty. It was not going to be decided by me. HARRISON: No, but this goes to defence of the application. This is an application to extend time. We defend that, in part by saying it doesn't get through the gateway. Alternatively, if that doesn't get through the gateway but there is a residue of a claim being fiduciary obligation claim, it doesn't succeed because there was no fiduciary obligation, it's not a motion to strike out; although the same evidence would support that. HIS HONOUR: Yes, all right. On that basis it seems to me it will have to go in and I will have to deal with it. Whatever I decide will determine what happens to it." 24 This is not easy to understand, but it was not pursuing the application to strike out the claim against Mr Eijkman for breach of fiduciary duty. 25 In due course the parties came to their submissions. There were written outlines of submissions; they were not in the appeal papers, and what was said in them about the claim for breach of fiduciary duty, if anything, is not known. 26 The waters became muddy. Mr Eijkman's oral submissions included a submission to the effect that there was no relevant fiduciary duty, and that even if there was the judge should not "come to the view that the limitation statute could be circumvented in that way by attempting to conform a tortious claim as one arising from a fiduciary relationship". How this was material to the "defence of the application" is not easy to see; the judge said at one point, with respect rather Delphically, that "even though I'm not dealing specifically with this motion, of the third defendant, I'm dealing with a fiduciary relationship argument in the course of dealing with subs (2) of 60I(1) [sic: no doubt s 60I(1)(a)(ii)]". 27 Father McGloin also put an oral submission to the effect that there was no relevant fiduciary duty and the limitation periods should not be circumvented. The Church did not. 28 Mr Magann said in his submissions in response that he did not need an extension of time for "an equitable claim for equitable damages". The transcript records (Mr M L (Mark) Williams SC was counsel for Father McGloin and Mr M B (Michael) Williams SC was counsel for the Church) - "HIS HONOUR: No, that was no doubt the purpose of the other motion that has been brought, but I understood that I was to look at this matter. RUSSEL: No, your Honour is not dealing with the other motion. Mr Harrison particularly tendered his affidavit about breach of fiduciary duty to argue, as I understood it, that it would be futile to grant an extension of time because we couldn't succeed on breach of fiduciary duty. HIS HONOUR: Am I to look at the fiduciary duty question or not? RUSSEL: In my submission you don't need to. Mr Harrison and the others say yes. HIS HONOUR: Just say that I reach the conclusion that your client fails, doesn't get through I , for example, gets through I , but fails on G, you say I don't go on to look at the fiduciary breach? RUSSEL: That's right. HIS HONOUR: That comes back for another occasion. RUSSEL: Exactly right, with respect. HIS HONOUR: Well why have I heard all this argument? RUSSEL: I'm bemused as to why your Honour has, but that's the submission I make. HIS HONOUR: What do you say, Mr Williams and Mr Williams? ML WILLIAMS: I understood Mr Harrison was going to argue the point here and I just raised with my learned friend at the morning tea adjournment that I would be probably seeking leave to file a motion to strike out the fiduciary duty claim here now. HIS HONOUR: Just say I don't grant leave, as I understand the rules now, it's a very odd situation, the statement of claim still stays on foot. My orders are not that I strike the statement of claim out. So one assumes the statement of claim stays and then another judge looks at the fiduciary duty claim. ML WILLIAMS: That's why, it having been raised by the third defendant and I admit not raised by us before today, it seemed to us the most expeditious way of dealing with it was for your Honour to grant us leave to file a motion out of time seeking to strike out the fiduciary point, your Honour having heard the point; having heard the evidence about it, we maintain the submissions about it. HIS HONOUR: Mr Russel doesn't want me to do that. RUSSEL: Can I suggest we proceed step by step. If your Honour grants leave to my client to bring his claim in tort, then we will have an extension of time for that and we would also have a claim for breach of fiduciary duty on foot, because it was in our original pleading. Whether that succeeds or fails on the fact [sic] is then a matter for the trial. If your Honour refused extension of time, as your Honour puts to Mr Mark Williams, the statement of claim will remain on foot. Your Honour doesn't strike it out, but every defendant will, I anticipate, then put on a defence pleading the provisions of the Limitation Act. I don't have an extension of time, so at a trial I must fail, if I was foolish enough to run the tort point at a trial or what would likely happen, I suppose, is someone will ask me to either abandon the tort claim or someone will put on a motion to strike out those parts of the statement of claim for tort. That will leave me with the option of running a fiduciary duty claim at trial and someone may wish to pursue a motion in due course to strike that out as legally hopeless, but your Honour is not dealing with such a motion here. … In any event, no one is presently moving before your Honour to strike out breach of fiduciary duty. Of course the plaintiff would have to take advice, if he doesn't get an extension of time for tort, as to whether he chances his arm by running a breach of fiduciary duty claim. HIS HONOUR: Yes, very well." 29 The submissions in reply took the matter no further. 30 The muddied waters may have involved an attempt to draw the judge into consideration of striking out the claims for breach of fiduciary duty. The attempt was resisted by Mr Magann, and in the paragraph at the end of his reasons the judge correctly declined to deal with that matter: correctly because it was not before him and Mr Magann had not been called on to defend the claims for breach of fiduciary duty. As a practical matter, because he considered that the limitation periods should be extended the judge also was well entitled to say that the claim for breach of fiduciary duty was best left for the trial, although that would have not precluded Mr Eijkman from pursuing his notice of motion or the other defendants from bringing similar applications to strike out the claims for breach of fiduciary duty. 31 It would not be appropriate for this Court to enter upon striking out the claims for reach of fiduciary duty. That is not before us, and again Mr Magann has not been called upon to defend the claims.

Facts 32 It will be necessary to supplement these facts in some respects when dealing with the particular issues. It should be remembered that the evidence in the application does not necessarily represent the position as it might be found at a trial. 33 The evidence in the application was fragmented, some being admitted only against particular defendants or subject to an order limiting the use which could be made of it. It was not suggested that the consideration of this Court was affected by the differential admission or use - indeed, no mention of it was made in submissions. 34 Mr Magann was born on 16 June 1971. The majority of his family attended the Holy Family Parish church at Emerton. He was christened at the church, and became an altar boy at the age of 11. 35 Father McGloin became the parish priest in 1984. At the end of 1986 he went to a parish at Springwood. Mr Magann left school at the end of 1987, and two or three years later lived for a time at the parish house at Springwood and then at a house owned by Father McGloin at Kurrajong. He would go with Father McGloin to a caravan he owned at a caravan park at Kiama. According to Mr Magann, over the whole of this period until he left the parish house at Springwood at the age of about 20 there were occasions of sexual abuse, the general nature of which he described although he could not recall or detail all the occasions. Some of his evidence indicated continuance until about his 21st birthday. 36 Mr Eijkman became the assistant priest at the Holy Family Parish church in 1987. He visited Mr Magann's home on occasions, and according to Mr Magann became a trusted friend of the family and himself. According to Mr Magann, the first occasion of sexual abuse occurred in 1987. Mr Eijkman then moved to a different parish at Toongabbie, where Mr Magann would visit him (and sometimes stay) at the presbytery. In February 1989 Mr Eijkman left the priesthood and moved to Talong near Goulburn. Mr Magann visited him there, and the second occasion of sexual abuse occurred in that year. 37 Mr Magann said that in 1993 he told Father Bill Wright, then the parish priest at the Holy Family Parish church, that he had been sexually abused by Father McGloin and Mr Eijkman. From the judge's finding as to knowledge of the nature of his injury, amply supported in the evidence, from prior to this time Mr Magann was undergoing the emotional disturbance which was later diagnosed as a psychiatric condition and which he attributed to the sexual abuse. Mr Magann variously said that he told Father Wright in June 1993, July 1993 and November 1993. He said that Father Wright promptly took him to see Father Brian Lucas at the Church offices in Sydney, and then to see Bishop Bede Heather at Blacktown. Mr Magann told Bishop Heather of the abuse; he said that Bishop Heather told him that he should report Mr Eijkman to the police because Mr Eijkman was no longer a priest, and that "[t]he church will look after McGloyn". 38 Bishop Heather had retired; he gave evidence that he had no recollection of the meeting with Mr Magann. He had made some notes. They dated the meeting at 26 March 1994, and Mr Magann's recollection of the time must (understandably) have been astray. The notes indicated that Mr Magann had spoken to Father Lucas of emotional and psychological abuse and "I've lost ten years of my life", and that Bishop Heather's impression was that Mr Magann was "very mixed up and confused" and "schizophrenic". I will return to Father Wright and the meeting with Bishop Heather in connection with Mr Magann consulting a solicitor in 1994. 39 Mr Magann went to the police and made a statement dated 6 July 1994 concerning the abuse by Mr Eijkman. According to Mr Magann, the police subsequently told him that they had interviewed Mr Eijkman and the matter would be referred to the Director of Public Prosecutions. The evidence disclosed no more than that, at an unknown time, the DPP "dropped the case". Mr Magann did not hear further from Bishop Heather. 40 From March 1993 to January 1996 Mr Magann consulted Dr P K Brownlie on a number of occasions. The occasions were not necessarily all in connection with his emotional disturbance, but he was not sleeping and was prescribed an anti-depressant. He agreed that Dr Brownlie told him that he was suffering from depression "of some sort", but said that he did not tell Dr Brownlie about the sexual abuse. Asked why he did not, although he had told a man on the train and a girl at the rowing club and had told Father Wright, Father Lucas and Bishop Heather, he said - "A. I really can't answer that, that's my - I don't know why I didn't tell him. I do remember there was time there where I wanted to tell him, but I just didn't tell him." 41 Dr John Morrissey gave evidence of treating Mr Magann in early 1994, when he was at St John of God Hospital at Richmond as part of his psychiatric training as a registrar. The hospital records no longer existed, but Health Commission records showed five consultations. Some were the day after the same records showed consultations with Dr Brownlie. Dr Morrissey said - "Q. What do you recall about your consultations with Mr Magann? A. Not a great deal, other than that I can recall seeing him more than once. I can recall the issues that were present, related to depressive symptoms and alcohol misuse and that he also voiced allegations relating to past sexual abuse. Q. Did he say by whom the past sexual abuse? A. He did. It was by - I don't know whether it was by a member or members of the clergy and that's why that particular things stuck in my mind and that's why I remember, you know, the set of events." 42 Dr Morrissey said that what stuck in his mind was that it was clergy, although he did not know whether it was singular or plural. He said the gist of his advice to Mr Magann was that the issues he had raised "were something that were going to need more long-term and in-depth engagement with a psychiatrist than I was going to be able to provide …". 43 Mr Magann denied that he had been treated by Dr Morrissey or at St John of God Hospital. He said that the Health Commission records were for consultations with his father. The judge found that he had been. 44 Mr Magann did not take further action after his meeting with Bishop Heather and statement to the police, other than follow up what the police and the DPP were doing. According to Mr Magann, he did not pursue the matter because he was disillusioned and disappointed that the police had decided not to prosecute Mr Eijkman, and that he had not heard further from Bishop Heather. 45 Mr Magann married in November 2001. He said that he told a Deacon at the church that he did not want a church marriage because he had been sexually abused by Father McGloin, and that the Deacon told him that if he was to pursue the matter he should see Ms Paula Kerr, described as the contact person in relation to complaints made to the Catholic Church. It is unclear whether this or something else caused him to take further action. Still according to Mr Magann, in 2002 he saw a television programme in which Bishop Kevin Manning made comments about allegations of sexual abuse against Archbishop Pell. He said he became very distressed, that for the first time he told his wife of the sexual abuse, and (in substance) that his wife prevailed on him to go to Ms Kerr. On the other hand, while his wife gave evidence of being told of the sexual abuse and going with him to see Ms Kerr, she said that it was a few weeks after the complaint was put in that Mr Magann was very distressed and told her he had "just seen a television story about George Pell and I started having flashbacks about Henk Eijkman". 46 Mr Magann went to see Ms Kerr, and on 5 July 2002 made a formal complaint against Father McGloin and Mr Eijkman. The complaint was of "emotional, psychological and sexual assault by both priests over a 6 to 7 yrs period", and in the space for what Mr Magann expected as a result of the complaint there was written - "(1) Written & verbal apology from both men. (2) Charges to be brought against both men. (3) Financial compensation for suffering. (4) Counselling for both myself & my wife 'Leanne'." 47 There followed correspondence between Mr Magann and Bishop Manning and the Church's solicitors, in which Mr Magann demanded compensation for what his first letter described as "the pain and suffering and the mental anguish and my inability to function as a normal human being". That letter said that his life "has been and continues to be turned up side down by these two barstads [sic] for what they did". Mr Magann's language in his letters was strong, and he demanded "$10,000 for every year I have had to suffer" and payment for his wife and children also; in a letter of 9 August 2002 he said that the compensation was for "twenty (20) years of emotional, psychological torment, anguish - you name it, I've experienced it together with the ten (10) years of actual sexual abuse … ". In a letter of 13 August 2002 Mr Magann said, "Should I not receive notification regarding this matter immediately, I will be forced to take legal action". In a letter of 17 September 2002 he said he would not be getting a solicitor but was "going to the high court with this matter", and wanted $500,000. The Church solicitors told him it would be in his interests to engage a solicitor "to help in formulating a formal claim". 48 On 25 August 2002 Mr Magann was first seen by Ms Carroll, under an arrangement made by Father Wright after some counselling with an Anne O'Brien at the suggestion of Bishop Manning had gone awry. 49 Ms Carroll's report dated 7 October 2002 recorded in little more than note form Mr Magann's account of his emotional disturbance, under the headings "Depression", "Anxiety", "Flashbacks", "Irritability and Anger", "Somatic Symptoms", "Loss of Future", "Relationships", "Fears" and "Loss of Lifestyle". From Mr Magann's evidence as a whole, and in particular cross-examination in which he was taken to most of the matters noted, they represented his emotional disturbance for the preceding ten years or more. 50 Ms Carroll stated under "Findings" - "Darren Magann is suffering severe Post Traumatic Stress Disorder as a direct response to the sexual assaults he suffered between 1982 and 1992. The traumatic experiences of sexual assault are persistently reexperienced by recurrent and intrusive distressing recollections of the assaults including images, thoughts, and perceptions. Darren Magann suffers intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the sexual assaults he experienced. He also suffers markedly diminished interest or participation in significant activities related to family. Darren Magann has persistent symptoms of increased arousal not present before the sexual assaults. These symptoms are persistent irritability and outbursts of anger. Darren Magann displays also Acute Stress Disorder displayed by symptoms of despair and hopelessness. Darren Magann a sufferer of Post Traumatic Stress Disorder as a result of a series of sexual assaults committed between 1982 and 1992, needs to experience some sort of closure. Darren informs me closure for him would mean that the Catholic Church would assist him. Darren will continue to suffer unless and until closure occurs in such a way that Darren feels vindicated." 51 Mr Magann said in an affidavit that - "It was only upon reading this report that I became aware that I was suffering a severe Post Traumatic Stress Disorder as a result of the sexual abuse that I had suffered. This was the first time that I was aware of any medical condition casually [sic: causally] related to that sexual abuse." 52 On 30 September 2002 Mr Magann was first seen by Mr Peter Allen, clinical psychologist, under an arrangement made by Bishop Manning (although the report dated 11 October 2002 said that he was "self-referred"). Mr Allen's "Summary/concluding remarks" was - "Mr Magann presented with symptoms consistent with severe chronic Posttraumatic Stress Disorder (PTSD) which appears to have developed as a direct consequence of being the victim of multiple instances of sexual assault. He also presented with significant depressive symptoms which appeared to meet the criteria for Major Depressive Disorder. His psychological symptoms appear to be exerting a marked adverse effect on key areas of functioning. While psychological treatment is likely to accelerate recovery and improve end state functioning, significant and disabling symptoms could well persist for at least several years." 53 Mr Magann, who described Mr Allen as a psychiatrist, said in an affidavit that - "This was the first time that I became aware that a psychiatrist had made a medical diagnosis of Post Traumatic Stress Disorder and major Depressive Disorder as a result of my sexual abuse." 54 In October 2002 Mr Magann was seen by Dr Brian Boettcher, consultant psychiatrist, under an arrangement made by the Church solicitors. Dr Boettcher's report dated 17 October 2002 included - "He does display enough symptoms to fulfil the criteria for Post Traumatic Stress Disorder (PTSD) and clearly becomes depressed at times. It is not uncommon for PTSD or Anti-personality Disorder patient to decompensate into a serious depression and attempt suicide. He does seem to have a serious emotional control problem and if escalated enough in his already high level of anger could become uncontrollably violent. I have interviewed many violent offenders and their pattern of escalation into an uncontrollable rage is similar and many of them have been abused as children also. Their rage is often accompanied by an automatic nervous system response causing facial pallor, to name one, such as he displayed. … In relation to Question 5, I believe his prognosis is dependant on his getting proper psychiatric and psychological assessment and treatment both in relation to his PTSD and his personality traits and anger. Untreated he is likely to assault people who, he says are 'Getting in my way' and further suicidal attempts ending in his death, are also likely." 55 On about 18 October 2002 Mr Magann engaged his present solicitor. He said that a few weeks earlier he had seen another solicitor who thought the claim was "out of [his] league", and that about three months earlier he had seen another solicitor who did not wish to take on the case. He said that seeing his present solicitor was "the first time that I received any legal advice in relation to my rights for damages against the defendants", and that "[p]rior to consulting a solicitor I was not aware that I had three years in which to file court documents making a claim for damages against the defendants for personal injury". 56 Although after the awareness found by the judge, Mr Magann was later assessed at the request of his solicitor by Dr Andrew Robertson, consultant psychiatrist, who provided a report dated 10 August 2003. Dr Robertson diagnosed chronic Post-traumatic Stress Disorder, and considered that Mr Magann was "something of a danger to himself and others".

Consulting a solicitor in 1994 57 The judge addressed a submission founded on evidence concerning consultation with a solicitor in the early 1990s, and said that he was not satisfied that Mr Magann consulted a solicitor "as early as March 1994", although Mr Magann did contemplate seeing a solicitor "but as an act of revenge or retribution upon [Father McGloin and Mr Eijkman]". I will later come to the part played by this in the judge's decision. Although it was not the subject of a separate ground of appeal, the appellants took issue with the judge's finding. Any consultation with or contemplation of seeing a solicitor in 1994 is of importance, and while the appellants' challenge to the finding that Mr Magann did not consult a solicitor as early as 1994 was muted they maintained that he was aware in 1994 that he could claim compensation for the consequence of sexual abuse he said he had suffered, and was told that he should see a solicitor about doing so. 58 Bishop Heather's notes of the 26 March 1994 meeting began - "Met Darren with Bill Wright. Repeated allegations to some extent. Said he had been to a solicitor and would be taking legal action against both Michael and H. Eichman [sic]. He had already initiated procedures against H. Eichman." 59 Later in the notes the Bishop wrote, as part of his dealing with the allegation of sexual abuse, "If Darren's solicitor writes it will be dealt with by M's solicitor. Try to keep it at that level." 60 In the affidavit in which he gave evidence of engaging his present solicitor and seeing the two solicitors shortly beforehand, Mr Magann went on in its para 14 - "I decided to see a solicitor on the advice of Father Bill. I had a conversation with Father Bill to the following effect: Darren: Can I sue the Church for what Father Eijkman and Michael have done? Father Bill: Yes." 61 In its context in the affidavit, this appeared to relate to seeing a solicitor in the latter part of 2002. But it was not specifically tied to that time, and Bishop Heather's notes clearly conveyed that Mr Magann had consulted a solicitor in 1994. Father Wright did not give evidence. Mr Magann was asked in cross-examination about the conversation with Father Wright. 62 First, Mr Magann said that he remembered "every word what was said" at the meeting with Bishop Heather, and - "Q. Such words from your mouth included that you had been to a solicitor and you are going to take legal action against both Michael and Eichmann [sic], true? A. Yep. Q. And you said you'd already started procedures against Eichmann? A. That was with the DPP and the copper over at Windsor, because the Church told me they'll go after McGloin (sic). Q. It was only on 19 May 2003 that you commenced these proceedings in this Court, that right? A. Oh well, must be then, yeah. Q. Nine years short only of two weeks since you told the bishop that you'd been to see a solicitor and that you'd initiated procedures against Eichmann, right? A. Yeah. M B WILLIAMS: Q. That was with regard to Eichmann? A. That was with Eichmann because Manning - oh sorry, Bede Heather told me in front of Bill Wright, 'You go after Eichmann because he's out of the priesthood and it's quicker if you do it, we'll go after McGloin because he's still in the priesthood and it'll be quicker if we do it,' and they were his exact words. And Bill Wright, well Father Bill, sorry, he was sitting to my right when Bede Heather said that. Q. Speaking of exact words, didn't you say 'Can I sue the Church for what Father Eichmann and Michael have done?' A. Yep, that's correct, I did say that. Q. And Father Bill replied 'Yes'. A. Father Bill said 'Get a solicitor first before you do anything'. Q. That was on 26 March '94, correct? A. Well yeah, I don't remember dates, but yes, it'd be around that." 63 Counsel for another defendant later returned to the matter - "Q. What was the name of the solicitor that you went to see in 1993? A. I can't remember. Q. Do you remember being asked about this yesterday. You had been to see Bishop Heather? A. I seen Bishop Heather. Q. Can I just stop you there. You told Bishop Heather that you had gone to see a solicitor and you were going to take legal action against McGloyn and Eijkman. I just want to know what the name of the solicitor was? A. It wasn't a solicitor, it was the DPP, that's who I went and spoke to and they said well, it was only, it was with Eijkman 'cos as I said the Bishop, whatever his name, Heather said we're going to go after McGloyn but, and I said but Eijkman, and then I rang up the Wollongong area, that's right. I rang up Wollongong DPP and it was the solicitor for the coppers so that's what I'm referring to about. I went and seen a solicitor which was the DPP. Q. But didn't you tell the Bishop that there had been proceedings started against Eijkman and you were going to start a case against McGloyn? A. I can't remember. Q. Weren't there two separate episodes, one when you went to see the DPP with police, and two when you went to see the solicitors about a civil action such as you're now trying to start? A. The only thing I can remember is going to the DPP and speaking to the solicitor, who was he, the solicitor there. Q. The statement that was taken in 1994 by the police dealt only with Mr Henk Eijkman, didn't it? A. Because I was told it would be easier for me to go after Eijkman because he's left the priesthood and now lectures down at the police academy at Goulburn. That's the only reason why I didn't fight for McGloyn because Peter [sic] told me and Father Bill, right: 'Leave McGloyn to us, we'll get him'." 64 Counsel for the remaining defendant also later went to the matter, reading out Bishop Heather's note and continuing - "Now, I want to suggest to you that at the meeting you had at which Bill Wright was present when you were with Bishop Heather, you said you'd been to a solicitor? A. Well, I don't recall that. That was years ago. I don't recall that. Q. I want to suggest to you, you said you had been to a solicitor and would be taking legal action against both Michael and Henk Eijkman? A. No. I remember speaking to Bill Wright and saying 'Can I get a solicitor?' and he said 'Yes, you can'. I said 'What about - can I sue the Church for sexual abuse?' And he said 'Yes'. He said, 'McGloyn is known to be a paedophile in the Catholic Church'. Q. Thank you for that. So Bill Wright to you back in March 1994 you could get a solicitor. A. Yeah, I remember him saying that. We were on our way home. Q. And you raised it, I suppose, because it was a matter of some concern to you, correct? A. Well, it was, because I don't think paedophiles should be on the street. Q. Indeed and you wanted to get a solicitor to sue them? A. Straight away, to get them in gaol. Q. And that was the view you had in March 1994? A. Oh yeah. Well if that's the date, yeah." 65 Counsel then took Mr Magann to the affidavit with the conversation with Father Wright about suing the Church, and - "Q. You then say in paragraph 14: 'I decided to see a solicitor on the advice of Father Bill'? A. Yeah, because Father Bill - I said to Father Bill, 'I want to know, I want to speak to Kevin Manning' and Father Bill rang up Kevin and Kevin Manning said, 'Tell Darren to get stuffed, I don't want nothing to do with the bloke, he's accusing me for interfering in his sexual abuse, I believe he has been sexually abused but' and then I went back to Father Bill and said, 'Look Bill, can you help me out here?' and he said, 'Well, you need to get a solicitor. How about I help ya?' Like Father Bill is the bloke who was appointed to me by the Catholic Church as my helper. Q. Why did you not continue with the solicitor that you'd seen back in 1994? A. I didn't even think I seen a solicitor in '94. Q. You said you did a minute ago? I'm just wondering. A. In 2004 or '94? Q. No '94. Why didn't you go on with that solicitor? A. Who was that, sorry? Was that Doug Timmons? Is that who you're talking about? Q. No. You remember I was asking you questions about the meeting you had with Bill Wright and Bede Heather, when you told them you'd been to a solicitor? A. That was the DPP I spoke to, that their solicitor for the DPP? Q. No, the DPP you didn't see, I don't think, because you just told us, until after July? A. I didn't speak to any -- Q. Of 19-- A. The only solicitor I spoke to was the solicitor for the DPP and that's the one Richard Cox gave me. Q. And that was on the phone? A. I didn't see any solicitor back in '94. Q. Well -- A. Father Bill wanted me to get a solicitor. Q. Back in '94. A. Yeah, he wanted - 6 July 2003 I think it was when I first told Father Bill that McGloyn and Eijkman sexually abused me and when we'd been talking about different things, he said 'Now's the time you got to go and get a solicitor'. Q. Back in '93? A. '94, sorry, when I told him about the allegations." 66 A degree of initial clarity ended with some confusion, not untypical of Mr Magann's evidence. Whatever Father Wright said to Mr Magann about a solicitor, was it in 1994 or later when Bishop Manning was in office? Was the conversation with Father Wright about legal action to obtain compensation for what Father McGloin and Mr Eijkman had done, or about legal action to have criminal proceedings against them? Had Mr Magann been to a solicitor before the meeting with Bishop Heather? 67 The judge referred to Bishop Heather's notes. He said that it was Mr Magann's evidence that he "had not seen a solicitor at this stage". He referred to para 14 of the affidavit, and to Mr Magann's evidence in the cross-examination by the other defendants, and said - "From this evidence I concluded that it was in 1994 that the Applicant was advised to seek legal advice, but not for the purpose of compensation, but to initiate proceedings as an act of retribution against the Second and Third Respondents, to, as the Applicant said 'get them in gaol'. I am therefore not satisfied that the Applicant did consult a solicitor as early as March 1994, but I am satisfied, because of his anger at what he alleges was done to him, he did contemplate seeing a solicitor, but as an act of revenge or retribution upon the Second and Third Respondents." 68 The judge accepted that Mr Magann "was advised to seek legal advice" in 1994. This could only have been acceptance that whatever Father Wright said to Mr Magann about a solicitor took place in 1994. But his Honour found first, that Mr Magann had not in fact consulted a solicitor, and secondly, that Mr Magann contemplated seeing a solicitor not in order to obtain compensation but in order to "get them in gaol". With respect, this finding has considerable difficulties. 69 So far as Mr Magann said that, in telling Bishop Heather that he had consulted a solicitor, he meant the DPP solicitor, he was plainly in error. On the evidence, he did not see the police or have contact with the DPP until after the meeting with Bishop Heather. The conversation in para 14 of the affidavit was not about seeing a solicitor with a view to criminal proceedings against Father McGloin and Mr Eijkman, the question as given by Mr Magann in the affidavit being whether he could sue the Church for what they had done. In his oral evidence Mr Magann twice affirmed a conversation in those terms, including that he asked Father Wright whether he could sue the Church for sexual abuse. Father Wright told Mr Magann that he should see a solicitor for that purpose. It is unlikely that Father Wright told Mr Magann to see a solicitor as a way to "get them in gaol", and unlikely that their conversation was about criminal proceedings against Father McGloin and Mr Eijkman rather than suing the Church. 70 Against this, while Bishop Heather's notes recorded Mr Magann saying that he had been to a solicitor, the foreshadowed legal action was not against the Church but against Father McGloin and Mr Eijkman. The reference to "already initiated procedures" against Mr Eijkman is not easy to understand; the evidence did not suggest what that could have been. It is possible that Mr Magann was misunderstood in a meeting at which he was "very mixed up and confused" (Bishop Heather's impression), or that he said he had seen a solicitor when he had not yet done so. 71 Nonetheless, even if Mr Magann had not in fact seen a solicitor prior to the meeting with Bishop Heather - as the short-time scale between telling Father Wright of sexual abuse and the meeting might suggest - I consider unsound the judge's finding that Mr Magann contemplated seeing a solicitor not in order to obtain compensation, but in order to "get them in gaol". That answer in cross-examination was underlined when the judge set out the cross-examination in his reasons, and was important to his finding, but apart from manifest unreliability in Mr Magann's evidence on this matter it was flawed by his confusion about seeing a solicitor at the DPP, which must have been later in 1994. Within the constraints of the principles in Fox v Percy (2003) 214 CLR 118, the finding was contrary to other compelling material and not protected from challenge by acceptance of Mr Magann's credibility. In my opinion, Mr Magann was aware in 1994 that he could claim compensation for the consequences of the sexual abuse he said he had suffered, and was told that he should see a solicitor about doing so.

Awareness of the extent of injury 72 The judge found that the "emotional/psychological reactions" to the sexual abuse alleged by Mr Magann had been experienced for at least the preceding ten years. He described the injury of which Mr Magann had been aware from at least the time the abuse ceased as "largely depression which manifested itself in various ways". He found that Mr Magann had been treated for depression in 1994 and, contrary to Mr Magann's evidence, that he had given Dr Morrissey "some sort of history of sexual abuse 'by clergy'". The judge concluded that, at the time of the consultations with Drs Brownlie and Morrissey and the "confrontation" with Bishop Heather, Mr Magann was "aware and actually aware that his feelings of anger, hurt and depression were related to what he allegedly says occurred at the hands of Mr McGloin and Mr Eijkman". 73 His Honour continued - "The next matter for determination is, knowing that he had the unpleasant and troubling symptoms, including depression, that he associated with the alleged sexual abuse, was the Applicant actually aware of the 'extent' of his injury? The word 'extent', it seems to me must envisage a medical component. The word encompasses both diagnosis and prognosis of the injury in question. It is difficult to contemplate a situation where a medical opinion would not be necessary to determine the extent of an injury, unless perhaps an Applicant was a doctor or other person with specific medical knowledge. Earlier I quoted from the judgment [in] Harris (supra) [ Harris v Commercial Minerals Ltd (1996) 186 CLR 1] where at p11 their Honours said 'The extent of an injury must include all its consequences. It is not an unnatural reading of section 60 I (1)(a)(ii) to hold that what the Court must consider is the total extent of the applicant's injury in determining whether, at the expiration of the limitation or earlier period, he or she was aware of the extent of the injury'. (emphasis added)" 74 His Honour had earlier set out from the report of Ms Carroll her opinion under "Findings" and from the report of Mr Allen his opinion under "Summary/concluding remarks", see above. He said that Mr Magann relied also on the report of Dr Boettcher, setting out the extract from the report which I have set out, and continued - "In my opinion the medical diagnosis of Post Traumatic Stress Disorder is not just a 'label' given to a person already under medical care, but a medical opinion derived from examining the history and behaviour of the Applicant. It is psychiatric in nature and was revealed to the Applicant for the first time in October 2002. That is he suffers from a medical condition, that, if his history is correct, is attributable, at least in substantial part (Dr Boettcher raises Anti Social Personality Disorder traits as well) to the alleged sexual abuse. The diagnosis defines the 'extent' of injury at he [sic: the] of examination by the various doctors and psychologists. The possible 'extent' of the Applicant's injury into the future, without proper treatment is set out in the quotation from Dr Boettcher's report above and in my view a possible future 'consequence' of the injury in the sense used by their Honours in Harris (supra) quoted above. For these reasons I am of the opinion that while the Applicant was actually aware of the nature of his 'injury' that he says resulted from the alleged sexual abuse, as early as 1993, he was not actually aware of its extent of that injury until told by the psychologist in October 2002 when he read Ms Carroll's report." 75 The appellants first submitted that the judge erred in applying a wrong test, in that he required a medical opinion before there could be awareness of the extent of an injury and, despite stating to the contrary, regarded knowledge of a medical diagnosis giving to the injury the name or description of Post-traumatic Stress Disorder as affecting Mr Magann's awareness of the extent of his injury for the purposes of s 60I(1)(a)(ii). 76 To the extent to which his Honour considered that a medical opinion, providing a diagnosis and prognosis of the injury, was necessary for awareness of its extent or to demonstrate an extent of which the injured person was unaware, I am unable to agree. A medical opinion may make known something previously unknown, but it is not correct that the extent of an injury is unknown unless a suitably qualified person has provided a diagnosis and prognosis. It is not to be assumed that there is a possible extent of injury beyond the known extent unless a qualified person opines against it. In the present case, however, it does not matter, because there were medical reports. The judge's conclusion did not turn on the absence of a medical opinion, but rather on the medical diagnosis of Post-traumatic Stress Disorder and Dr Boettcher's prognosis. 77 If his Honour had reasoned simply that giving the name or description to Mr Magann's injury added to his awareness of its extent, he would have been in error. In The Commonwealth of Australia v Nelson [2001] NSWCA 443 Rolfe AJA, with whom Sheller and Hodgson JJA agreed, said - "68 In the instant case, Mr Nelson was aware of all the symptoms from which he was suffering. He had received psychological counselling and had seen a psychiatrist. There was no suggestion that the symptoms would become worse. The extent or limits of the condition from which Mr Nelson was suffering had been reached. In these circumstances, it seems to me, that his lack of knowledge that the problems could be described as Post Traumatic Stress did not in any way affect the extent of his personal injury. Rather, that was a way in which it could be described. However, as Clarke JA said [in CRA Ltd v Martignano (1996) 39 NSWLR 13 at 20], the Court is not concerned "with the technical name or description of an injury but its effect, actual and potential, upon the applicant". It would be very strange if a person, aware of all the symptoms and in circumstances where there was no evidence that they would worsen, could say that he or she was not aware of their extent merely because different doctors may describe them differently. … 79 In the result, I am of the view that Mr Nelson was aware of all the symptoms from which he was suffering and, therefore, the extent of his personal injuries. The mere fact that he was not aware that those symptoms could be characterised as Post Traumatic Stress does not, conformably with the authorities to which I have referred, lead to the conclusion that he was unaware of the extent of the personal injuries. It would be, in my opinion, an extraordinary result if, having the awareness he did, he could nonetheless overcome the problems created by sub s (a)(ii) because doctors' views varied as to the way in which the problem was described." 78 But that was not the judge's reasoning. He considered that the report of Ms Carroll told Mr Magann more than a name; it told him of an extent of injury beyond the extent of which he was already aware, because it told him that he had a psychiatric condition, and (from the reference to Dr Boettcher's report) that his condition would continue unless he received proper treatment and would possibly "decompensate" into uncontrollable violence and further suicide attempts. This was not reasoning contrary to the guidance of The Commonwealth of Australia v Nelson. His Honour had cited the relevant passages from that case, and was alive to it. He looked beyond the label of the diagnosis to an extent of injury which he considered flowed from the medical opinion. 79 The appellants then submitted that the judge erred in his acceptance that the reports told Mr Magann of an extent of injury beyond the extent of which he was already aware. They accepted that unawareness of the manner in which symptoms may develop could found a conclusion that there was not awareness of the extent of the injury (see Harris v Commercial Minerals Ltd (1966) 186 CLR 1 at 11). But they said that there was error when Mr Magann gave no evidence that he was unaware of the elements of the diagnosis taken from Dr Boettcher's report, and that the evidence demonstrated existing awareness of a psychiatric condition of indefinite continuance and significant previous violent behaviour and suicidal bent. 80 There is an initial difficulty in the judge's reasons, in that he found that Mr Magann's awareness of the extent of his injury came from reading Ms Carroll's report but took the relevant extent, at least beyond awareness that he had a psychiatric condition, from Dr Boettcher's report. Ms Carroll did not forecast descent into uncontrollable violence and further attempts at suicide. For present purposes, I pass over the difficulty and assume that Ms Carroll's report included a diagnosis (perhaps better, a prognosis) to the effect of that in the quotation from Dr Boettcher's report to which his Honour referred. 81 In some cases telling a person that he has a psychiatric injury will make him aware of an additional extent of his injury, or put more accurately diagnosis of a psychiatric injury will reveal an extent of injury of which the person was not previously aware. Thus in Cranbrook School v Stanley [2002] NSWCA 290 Heydon JA distinguished at [68] between perceived emotional disturbance as symptoms of an illness or only "signs of some personal weakness or illness falling short of an illness", and referred to awareness of "signs and symptoms in his condition, but not that they reveal any 'personal injury'". 82 That is not this case. Mr Magann believed in and before 1994 that his life had been ruined, had been told by Dr Brownlie that he suffered from depression, and had consulted Dr Morrissey in his capacity as a psychiatric registrar and been told to the effect that his condition required long-term and in-depth engagement with a psychiatrist. Even if the words "psychiatric condition" were not used, he must have known that his emotional disturbance was of that nature. It is not unimportant that the onus lay on Mr Magann of establishing his unawareness. When there was this evidence of consultations with Dr Morrissey, but Mr Magann denied that he had been treated by Dr Morrissey or at St John of God Hospital and was disbelieved, Mr Magann did not discharge his onus of showing that the consultations did not make him aware that he had a psychiatric illness. 83 Going to the extent beyond awareness of a psychiatric condition, there was a body of evidence of long-standing violent behaviour and prior suicidal ideation, and Mr Magann believed from at least 1994 that he had his emotional problems "for the rest of my life" (see the emphasised passage below). 84 In one of his affidavits Mr Magann said that, when in 1993 (in fact 1994) he told Father Wright of the sexual abuse, he told him, "I can't handle it any more I feel like killing myself". 85 Ms Carroll recorded that Mr Magann "is irritable all the time" and "[h]as thoughts of killing himself but would not carry them out", and later that "[b]ecause of the assaults suffered by Darren Magann he is continuously irritable and angry to an inordinate degree. This disturbance causes clinically significant distress in important areas of functioning". She considered that he would continue to suffer "until closure occurs in such a way that Darren feels vindicated". 86 Mr Allen recorded that Mr Magann reported "depressed mood much of the time and significant anhedonia", and - "He said that he had recently been experiencing significant suicidal ideation and on one occasion had set up a noose ready to hang himself, but had changed his mind prior to acting on his stronger than suicidal ideation. While he appeared to experience marked homicidal ideation he stated 'I promised my wife I won't (take revenge against the perpetrators)'." 87 Mr Allen recorded that Mr Magann's wife said that "his anger problems were her biggest concern and his anger volatility had been worsening in recent months". Mr Magann had "frequently lost his temper with" his wife. He had been involved in three "pub fights". Mr Allen also recorded - "He reported that he had been involved in four long-term relationships prior to his current relationship with his wife, three of approximately three years, and one of approximately two years duration. Two of the relationships reportedly ended because 'we grew apart'. It appears likely that Mr Magann's anger volatility played a significant role in the relationship breakdowns, possibly in all four cases." 88 Mr Allen's prognosis was that "[w]ithout further psychological treatment Mr Magann is likely to continue to suffer from severe and disabling anxiety, anger, and depressive symptoms for at least several years and possibly indefinitely". 89 Dr Boettcher's report included - "This man launched into a description of the sexual assaults that he allegedly suffered at the hands of the two persons who he named as the Catholic priest Father Michael McGlorin [sic] and Henk Einkman, who [sic]. He talked about Henk Eijkman as though he was a priest. He told me that in 1981 when he was 12 years old the assaults started by these two people and continued for about 10 years and said they have 'got away with it'. He told me that he had approached the Bishop of Parramatta and that the bishop had 'Fucked it up' to protect the priests. He launched at this stage into loud threats to assault the two priests if he ever saw them. This was a escalating behaviour but I managed to bring him back to the question I wanted to ask. He said he did not sleep well now, cannot bath his two sons and daughter and was loosing [sic] up to $300,000 per year in earnings. He said, 'I want to wake up feeling normal again'. When I asked him what he meant he shouted, 'Like I was before then I was 12 year old'. He told me he was seeing a psychiatrist or psychologist (he was not sure which) called Judith Carole [sic] and in questioning him it seems she has mentioned Post Traumatic Stress Disorder. He also related how he dreams nightmares and that, about 55% of these are about the two priests'. He said he constantly thinks about the two priests and what they did and how they made him hostile and aggressive. He feels they have been, and still are, laughing at him all the time. He said he could visualise them sitting in the other two chairs in the interview room. He looked at the chairs with a steady look. However he knew they were not really there and they were not there unless he visualised them being there. I did not think this was a visual hallucination. He reportedly indicated that if anyone got in his way he would assault them and went on 'If anyone puts power over me again I will shoot them'." 90 Dr Boettcher later referred to Mr Magann describing getting drunk often and occasionally getting into fights with the other drinkers in the pub. The report also included - "He describes two incidents when he was very suicidal. The first was 3 years ago when he had set up a rope from the roof with a noose in it from rope he had in his work. However he decided not to go ahead. The second was 6 months ago before he started to see Judith Carole, when he was thinking seriously about it and gives the credit to Judith Carole and his wife for not going ahead. He has constant homicidal feelings towards the two priests who he feels caused his life to change and blames them for him becoming unable to cope and constantly angry. He commented several times 'I could have been a doctor before they fucked me up'. I believe that he would easily escalate to violence given the right provocation as he displays such a lot of raw anger. He is constantly thinking about how badly he was treated." 91 Mr Magann's wife's evidence included that they commenced their relationship in about July 2000, and - "3. From the commencement of our relationship Darren has always shown himself to be an angry and hostile person. The slightest and simplest of events would cause Darren to explode. In addition to this Darren also had a major gambling problem. He gambled excessively on horses and poker machines. When he gambled he turned into another person - someone I did not know or like.

4. In or about December 2000 I said words to Darren to the following effect - 'Stop the gambling or our relationship is finished'. 5. After this Darren's anger and hostility increased and we were fighting and arguing at least once per month." 92 In his cross-examination Mr Magann said that when he was consulting Dr Brownlie he was depressed because he drank and gambled and "I was getting crankier and crankier because of what these two, McGloyn and Eijkman did to me". He gave the evidence, referring to the time when he met Bishop Heather - "Q. Well at that stage, having regard to how long this had been with you in the past, you would have been aware of the effect that it was having on you mentally, if you prefer that word to psychologically? A. I wouldn't - I was going downhill but I wasn't aware of it, like, what my condition was or whatever you want to call it, my problem. But I knew something was there stuffing me up, and then when it all came out that's when I noticed different people saying different things. Q. What, from about the time you confronted this and went to the Church and complained about it openly? A. Yeah. Q. I mean, you had a good idea about what you were complaining about as regards the effect that it had had on you? A. At the time, yeah, well I knew I was building up to something. Like, as I said, I don't know what the mental state was going to be. Q. Was it your impression that, if your condition wasn't dealt with, probably it would get worse rather than better, this is back in '94 when you confronted the Church with it? A. There are some things there I'd say yes and some I'd say no. Q. But certainly your belief was not that this set of emotional problems would go away of its own? A. I've got them for the rest of my life. When I'm dead that's when it's going to go away . Q. And you had that belief as far back at least as '94 no doubt? A. From when I first started realising that there was a problem and I'm getting crankier and frustrated and all that. Q. And it would be fair to put that at least as far back as '94? A. Yeah - well yeah, yeah ." (emphasis added) 93 Mr Magann also agreed that at least from 1993 or 1994 he had lost his temper with his wife, his girlfriends or his friends, "I wouldn't say every day but five out of seven". He said that at the time he was giving evidence he was a bit happier, "I don't fly off the handle like I used to", but that he had otherwise been "pretty close to" the same condition for the previous ten years or more. 94 Telling Mr Magann that, in the absence of treatment, he was likely to assault people whom he thought were getting in his way really added nothing to his awareness of his condition. Nor did telling him that his emotional control problem could escalate into uncontrollable violence. He had felt like killing himself in 1994, and had come to setting up the noose in about October 1999. Mr Allen referred to the condition as fluctuating, which may be accepted, but to say that Mr Magann might attempt suicide again really did not add to his awareness of his emotional condition. He had believed that his condition would remain for the rest of his life. 95 Although Mr Magann gave evidence that only upon reading the reports of Ms Carroll and Dr Boettcher did he become aware of any medical condition or medical diagnosis of Post-traumatic Stress Disorder, he did not give evidence to the effect he was not aware of possible descent into uncontrollable violence or further attempts at suicide. 96 On behalf of Mr Magann it was submitted that the present case was different from The Commonwealth of Australia v Nelson, because Mr Nelson was "clearly aware of all the symptoms from which he was suffering" (at [60]). It was submitted that the case was akin to The Commonwealth of Australia v Dinnison and Cranbrook School v Stanley. In the former case it was held that Mr Dinnison was aware of an intense anxiety over exposure to radiation from the tests at Maralinga, but not that his anxiety was a psychiatric illness or of its "real nature" until it was diagnosed as a chronic anxiety state. I have referred to the distinction drawn by Heydon JA in the latter case, and his Honour considered (at [68]) that there was a "close analogy between [Mr Stanley] and Mr Dinnison rather than Mr Nelson". 97 Each case must turn on its own facts, and on the application to the facts of the words "extent of the injury" in s 60I(1)(a)(ii) of the Act. The words are there to provide a remedy where consequences of an injury become apparent only after the expiration of the limitation period, and there must be considered "the total extent of the injury" (Harris v Commercial Minerals Ltd at 11). It is not necessary that "the precise consequences" or "the exact course of the disease or … all its pathological and physiological incidents" be known, and a person who is aware that an injury will deteriorate may be aware of its extent although it developed particular consequences which were not precisely foreseen (ibid at 13). 98 The finding of awareness of the extent of the injury is not a discretionary exercise and, while full regard to the view of the judge is appropriate, if this Court is of a different view it should give effect to it. Any word such as "extent" necessarily involves degree and an exercise in judgment. The postulated additional extent of Mr Magann's injury of which he was not aware until 2002, that it was a psychiatric condition of long duration and with the possible consequences of which Dr Boettcher spoke if untreated, was in my opinion not an additional extent of injury of which Mr Magann was unaware. As the judge correctly recognised, the label of Post-traumatic Stress Disorder did not itself add to the extent of the injury. Mr Magann had long been aware that his condition needed serious psychiatric attention, and the particular symptoms of violent behaviour and suicidal ideation had long existed. In my opinion, Mr Magann was aware of the extent of his injury from at least March 1994. For many of his causes of action, those accruing before 1 September 1990, the relevant time would be early 2001, which was also after he had come to setting up the noose in about October 1999.

Ought to have been aware of the extent of injury 99 The appellants' grounds of appeal included that the judge "erred in failing to consider" s 60I(1)(b) of the Act, and that he should have found that Mr Magann "ought to have been aware of relevant matters before 2001". 100 As I have indicated, the judge made a finding that the application was made within three years of when Mr Magann ought to have become aware of the matters in s 60I(1)(a)(i)-(iii). This was clearly referable to s 60I(1)(b). There was no failure to address that provision; the failure to consider could only have been in the nature of the consideration given to it. 101 The appellant's submissions on appeal took as the judge's reasons for his finding the part of his judgment, after his conclusion that Mr Magann was not aware of the extent of his injury until October 2002, commencing with - "I should also deal with the submission that Applicant should not get through the s 60 I gateway because he was 'consulting' a solicitor in 1993 and would therefore be in a position to know, given competent advice, of the possibility of a claim against the Respondents being instituted with the attendant medical examinations and reports that would result." 102 His Honour's reasons continued to the conclusion earlier noted concerning consulting a solicitor in 1994. 103 The appellants suggested that, from the words "in a position to know" and "with the attendant medical examinations and reports that would result", the judge postulated that consulting a solicitor in 1994 ought to have led to reports such as those of Ms Carroll and Dr Boettcher, so that if Mr Magann consulted a solicitor it could be found that he ought then to have become aware of the extent of his injury. 104 The transcript of oral argument in the application casts considerable doubt on this suggestion. 105 The submission to which the judge referred appears to have been a submission by counsel for Mr Eijkman that going to a solicitor - " … recognises that there has been, in the mind of the applicant, the consummation of a cause of action which includes the nature and the extent of the personal injury suffered; knowledge, the plaintiff has in his mind a connection between an injury that affects him, and its connection to the events complained of." 106 At a later point the submission was that going to a solicitor was "a demonstration of an awareness, an awareness of a consummated cause of action which he had failed in a timely way to prosecute or pursue". Counsel said that more was to be found in the written submissions, but they were not before us. In my view counsel's target was not s 60I(1)(b). It may have been s 60I(1)(a)(ii), but was more likely the discretion under s 60G. 107 That the target was not understood to be s 60I(1)(b) was apparent when, in the course of the oral submissions of Mr Magann (which followed receipt of Mr Eijkman's written submissions and the oral submissions of all the appellants), the judge observed that there was "no argument that you are not within the three years"; counsel for Mr Magann said, "That's 60I(1)(b)"; and the judge said "No argument about that". Mr Magann's later submissions included "I don't think anyone has made a submission on [s 60I(1)(b)] if we get through the subparagraph (a) gateway, we fail in the subparagraph (b) gateway". None of the appellants took the matter up in submissions in reply. 108 In my opinion, the judge was not dealing with a submission directed to s 60I(1)(b), and before his Honour the question of whether Magann ought to have become aware of the nature and extent of his injury prior to 7 January 2001 was not in contest. His Honour did treat the submission as going to "the s 60I gateway", it seems as a supplement to his reasons for his conclusion that Mr Magann was not aware of the extent of his injury until October 2002 and in order to deal with a submission thought to have been to the contrary of that conclusion. I confess to some difficulty with his Honour's appreciation of the submission, but he was not erring in the consideration he gave to s 60I(1)(b). 109 I have referred to a muted challenge to the finding that Mr Magann did not consult a solicitor as early as 1994. If it were found that he did, that would provide support for the conclusion that Mr Magann was aware of the extent of his injury from at least March 1994. It is not necessary to consider whether, if I had not come to that conclusion, consultation with a solicitor in 1994 alone or with other matters would establish that Mr Magann ought to have been aware of the extent of his injury prior to January 2001.

The exercise of discretion 110 The judge correctly recognised that, having passed through the gateway in s 60I(1), it was necessary for Mr Magann to satisfy him that it was just and reasonable to extend the limitation periods. He referred to the following matters. 111 First, apparently in connection with the viability of Mr Magann's claims, he implicitly accepted that Mr Magann was "inconsistent when pressured on many matters", but added - " … but not in my view sufficient to make his evidence unreliable, in the circumstances of his allegations against the Respondents. Ultimately it will be a question of whether the Applicant or the Second and Third Respondents - who are apparently still alive - will be believed. There were no witnesses, as is often the case with such allegations and also typically the allegations involve a course of conduct over a period of months and years about which in relation to things such as dates and times, a witness may not be precise." 112 Secondly, he accepted that in 1994 the Church knew of Mr Magann's allegations and "set in train investigations". He said that, while two potential witnesses to whom Mr Magann said he complained were dead, there was no evidence that any of Father McGloin, Mr Eijkman, Bishop Heather, Bishop Manning, Father Wright or Father Lucas was unavailable and "[t]here is all the police documentation as well". He said, "[w]hile the lapse in time since the alleged assaults make it difficult for the Respondents, the difficulty is not, in my view, such as to prevent the Respondents defending the matter and obtaining a fair trial", and later - "The time between the alleged assaults and the issuing of the statement of claim, more than 15 years, is a considerable time. But for the reasons above the availability of witnesses, statements taken in 1993 and 1994 much close [sic] to the alleged events and investigations by the First Respondent - I do not think this delay has made the chances of a fair trial unlikely". 113 Thirdly, his Honour considered the explanation for the delay in bringing proceedings. He said that Mr Magann's explanation was that he was disillusioned with the police and Church inactivity in 1993-94 and found it difficult and embarrassing to discuss his experiences with other people, and that Mr Magann gave evidence that prior to consulting his present solicitor on 18 October 2002 he was not aware of "the three year limitation period". The judge said that although he had some reservations concerning Mr Magann's credit, specifically arising out of his denial that he was treated at the St John of God Hospital by Dr Morrissey, he accepted this explanation. 114 Fourthly, the judge said that the Church had submitted that Mr Magann's lack of candour about the treatment at the St John of God Hospital, or even untruthfulness, should disqualify him from a favourable exercise of discretion. The judge said that he found it difficult to understand why Mr Magann was "so adamant in his denial", but - "While the Applicant's attitude to this episode is puzzling and infringes on his credit, it is not in my view, alone, sufficient to nullify the other grounds the Applicant has established as set out above … ". 115 The judge then said that Mr Magann had established "grounds" for grant of "the indulgence under s 60G of the Act". 116 The appellants submitted that the judge's exercise of discretion miscarried because he failed to give proper weight to some of these matters and failed to take into account other relevant matters. 117 In the first category were the absence of the St John of God Hospital notes, important to Mr Magann's medical history; differences in Mr Magann's accounts of the period over which he suffered the sexual abuse, and more widely his unreliability and at least in relation to Dr Morrissey lack of credibility, all making it more important that the appellants have material against which to test his case (cf The Commonwealth of Australia v Diston [2003] NSWCA 51 at [51] per Sheller JA); and the delay in bringing proceedings "after being told to do so in 1994 by … Father Bill Wright". 118 The last of these matters bridged over to failure to take into account other relevant matters. It was said that the judge was in error in finding that Mr Magann contemplated seeing a solicitor to "get them in gaol" and that, if Mr Magann was aware in 1994 that he could claim compensation for the consequences of the sexual abuse and was told that he should see a solicitor about doing so, that weighed significantly against a favourable exercise of discretion. The principal failure, however, was said to be failure to consider what Mr Magann knew or ought to have expected in determining whether it was just and reasonable to extend the limitation periods. Thus in Drayton Coal Pty Ltd v Drain (Court of Appeal, 22 August 1995, unreported) Gleeson CJ said that a plaintiff might be able to establish unawareness of the full extent of the injury "but a court might take the view that, at the relevant time, the plaintiff's awareness, although not complete, was so extensive that it would not be just or reasonable to extend the limitation period", and in Harris v Commercial Minerals Ltd it was said (at 14) - "After the applicant gets through the s 60I(1) gateway, he or she must satisfy the court that it is 'just and reasonable' to grant an extension of the limitation period. Under that provision, questions of what the applicant knew or ought to have known will often play a critical role in determining whether it is just and reasonable to extend the limitation period. It may not be just and reasonable, for example, to extend a limitation period if before the expiration of the period the applicant knew or ought to have expected most of the consequences of an injury. Unawareness of all the consequences may get the applicant through the s60I(1)(a)(ii) gateway, but it will not guarantee a passage through s60G." 119 If the matters in the first category alone were in question, it may be that error in the judge's exercise of his discretion would not have been made out. In my opinion, however, there is substance in the complaint of failure to pay regard to the other matters. For the reasons I have given, I accept the error in fact-finding. Further, if I am in error in my conclusion that Mr Magann was aware of the extent of his injury no later than March 1994, the reasons I have given for that conclusion demonstrate an extensive awareness of his condition. Although the judge cited the observations of Gleeson CJ in Drayton Coal Pty Ltd v Drain at an earlier point in his reasons, he did not when considering the exercise of his discretion give attention to whether the extent of Mr Magann's awareness, although not complete, weighed against a favourable exercise of discretion. In these respects, I respectfully consider that error of two of the kinds described in House v The King (1936) 55 CLR 499 has been made out. 120 Mr Magann may not have consulted a solicitor in 1994, although he was told he could and should, and may not have known of a three year (or any other) limitation period. But he knew he could sue the appellants, on my finding in order to obtain compensation for the consequences of the sexual abuse he said he had suffered. The strength of his antipathy towards the appellants at the time can not be doubted. Why did he not sue them? The explanation is not a strong one; disillusionment with police and Church inactivity really provide little reason for Mr Magann's own inactivity, and while embarrassment is understandable it did not prevent disclosure to a number of people in the early 1990's, or complaint and forthright demands for compensation in 2002 before any input from a solicitor or from Ms Carroll or other health professionals. Mr Magann let matters rest for eight years, notwithstanding that he had been told by Dr Morrissey that he had significant psychiatric problems and believed for himself that his depression, anger, gambling and alcohol problems and other emotional disturbance was attributable to the sexual abuse, would be with him for the rest of his days, and had ruined his life. 121 That does not mandate refusal of an extension of the limitation periods, but it sharpens regard to the positions of the appellants if an extension were to be granted. The nature of Mr Magann's evidence can be seen from the passages from his cross-examination earlier set out, and the judge disbelieved him as to the consultations with Dr Morrissey; delay must work against the ability to investigate and test Mr Magann's case at a trial, an ability of particular importance given the nature of his evidence. Whatever investigations were made by the Church, and presumably Father McGloyn, in and after 1994, they are not a good substitute for attention to the specific allegations in court proceedings brought over ten years later, and it is not clear that Mr Eijkman was on notice of the allegations against him. A fair trial is relative, and it may be that a relatively fair trail could be held, but a trial now is likely to be impaired in comparison with a trial in the mid-1990s. I have come to the conclusion that, even if Mr Magann had satisfied the threshold requirements of s 601, it would not be just and reasonable to grant an extension of the limitation periods.

Orders 122 I propose the orders, in each proceedings in this Court -

3. Set aside the orders made by Sorby DCJ on 12 November 2004 and in lieu thereof order that the amended notice of motion be dismissed with costs.

4. Respondent to have a certificate under the Suitors Fund Act if otherwise qualified. 123 HODGSON JA: I agree with Giles JA, and would make the following additional comments concerning the matters dealt with in par.[82] of his judgment. 124 In Blatch v. Archer (1774) 1 Cowp 63 at 65 (98 ER 969 at 970), Lord Mansfield said: All evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. 125 It was necessary to Mr. Magann's case that he prove, on the balance of probabilities, that in 1994 he was unaware of the nature or extent of the personal injury suffered, and that it was not the case that he ought to have become aware of these matters. In early 1994, he consulted Dr. John Morissey on five occasions, when Dr. Morissey was at St. John of God Hospital at Richmond as part of his psychiatric training. Dr. Morissey recalled the consultations as concerning depressive symptoms and alcohol abuse, and also allegations concerning sexual abuse by a member or members of the clergy. Records of those consultations no longer exist, and Dr. Morissey did not recall a great deal about them. However, he said that the gist of his advice to Mr. Magann was that the issues he had raised "were something that were going to need more long-term and in-depth engagement with a psychiatrist than I was going to be able to provide". 126 Mr. Magann's evidence was that he had not been treated by Dr. Morissey or at St. John of God Hospital, and that Health Commission records recording those consultations related to consultations with his father. The primary judge did not accept that evidence. 127 The content of the communications between Dr. Morissey and Mr. Magann was central to a matter which Mr. Magann had to prove, in effect that the issues raised in the communications were not such as to indicate that Mr. Magann was aware or ought to have been aware of the nature and extent of his injury. The Court had only sketchy evidence of the contents of these communications, because of the loss of records and Dr. Morissey's understandably incomplete recall. The other possible source of such evidence, Mr. Magann himself, was denied to the Court because of Mr. Magann's denial that the consultations took place. 128 Whether that denial was a deliberate untruth or the result of total failure of recollection, the failure of Mr. Magann to give evidence of the communications that he had with a doctor consulted for psychological problems is an important factor supporting a conclusion that Mr. Magann did not prove that it was not the case that, at relevant times, he was aware or ought to have been aware of the nature and extent of his injury. 129 HUNT AJA: I agree with Giles JA. **********

04/11/2005 - - Paragraph(s) 04/11/2005 - - Paragraph(s) 04/11/2005 - Appearances corrected - Paragraph(s) Cover sheet 04/11/2005 - Amendment to C of A number - Paragraph(s) Heading of judgment

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