(1) For the purposes of this Subdivision:
(a) (repealed) …….
(b) the material facts relating to a cause of action include the following:
(i) the fact of the occurrence of negligence nuisance or breach of duty on which the cause of action is founded,
(ii) the identity of the person against whom the cause of action lies,
(iii) the fact that the negligence nuisance or breach of duty causes personal injury ,
(iv) the nature and extent of the personal injury so caused, and
(v) the extent to which the personal injury is caused by the negligence nuisance or breach of duty ,
(c) material facts relating to a cause of action are of a decisive character if, but only if, a reasonable person, knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing:
(i) that an action on the cause of action would (apart from the effect of the expiration of a limitation period ) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action , and
(ii) that the person whose means of knowledge is in question ought, in the person's own interests, and taking the person's circumstances into account, to bring an action on the cause of action ,
(d) "appropriate advice", in relation to facts, means the advice of competent persons, qualified in their respective fields to advise on the medical legal and other aspects of the facts, as the case may require,
(e) a fact is not within the means of knowledge of a person at a particular time if, but only if:
(i) the person does not, at that time, know the fact, and
(ii) in so far as the fact is capable of being ascertained by the person, the person has, before that time, taken all reasonable steps to ascertain the fact, and
(f) "limitation period" means a limitation period fixed by an enactment repealed or omitted by this Act or fixed by or under this Act. "
77 I am of the opinion that, at all relevant times, the Plaintiff knew of the acts of Father Duggan on which his cause of action is founded and that they caused some personal injury. He was also aware of the identity of Father Duggan and had the means of identifying the Second Defendant, established by public Act of Parliament. I reject the submission that he was incapable of identifying the Second Defendant until he received the draft release naming it as a releasee.
78 The situation in relation to subparagraph (iv) of Section 57 B (1) is not nearly as apparent. Its meaning was explained by Kirby P in Ditchburn v Selstram Ltd (1989) 17 NSWLR 697 at 702 in terms which, in my view, have relevance to the present case:
"Knowledge of the "nature and extent" of injury:
In considering what are the "material facts relating to a cause of action" it is important to remember that Parliament has taken the trouble to provide an inclusive definition. By s57 (1) (b) there is listed a series of "material facts", amongst which is "(iv) the nature and extent of the personal injury so caused." These words cannot be wished away. They are particularly relevant where the "personal injury" relied upon is a disease or any other "impairment of the physical or mental condition of a person" which is of gradual onset. That such kinds of injury are within the statute is made plain by the definition of personal injury" in s 57 (1) (a).
It has been suggested that the mere fact of the knowledge that an injury has occurred causing symptoms is enough to put the potential plaintiff on notice of the relevant "material facts relating to the cause of action". Upon this view, the fact that an injured person suffers and knows the fact that he suffers a headache would be sufficient to propel that person to seek medical advice and to track down the precise diagnosis. Upon that approach, in the present case, the claimant had symptoms in his chest, was asked about asbestos employment and received a letter from he Board which referred to exposure to asbestos. He therefore had knowledge, or the means of knowledge, of sufficient facts to warrant and require him to commence proceedings.
In support of this approach, the opponent relied upon passages, in the judgment of McHugh JA in Brunton v D O'Bryan & Co Pty Ltd (Court of Appeal, 4 August 1988, unreported). These remarks appear to have been approved by Meagher JA in Dousi v Colgate Palmolive Pty Ltd (No 2)
However, it was agreed properly in my view, that this approach is not part of the binding rule of either Brunton or of Dousi. In Brunton it was not followed by Clarke JA (the other member of the majority). In Dousi it was not part of the basis upon which Hope JA reached his conclusion. At least in a case such as the present, it is my opinion that the approach is inapplicable. This is because the statute, in terms, envisages its application to diseases which may be of gradual onset. And by s 57(1)(b)(iv) it addresses attention to that feature of the "material facts" which concerns "the nature and extent of the personal injury so caused."
79 The issue raised by s57 B (1)(b)(iv) of the Act involves questions of degree and judgment to be approached, in my opinion, in accordance with the observations of Kirby P expressed above.
80 I find that the symptoms which, on the evidence, had their genesis in the sexual assaults of Father Duggan progressively worsened, particularly when the Plaintiff was obliged to face other stressors in his life. Minds might, I think, legitimately differ as to when it might reasonably be said that the Plaintiff was or should have been aware of the nature and extent of the personal injury inflicted upon him by Father Duggan. The Defendants submitted that the Plaintiff was or should have been sufficiently aware years earlier, at least by the occasion when he acknowledged at a meeting, that he had been sexually assaulted in his youth. Despite the Defendants' submissions, in my view the Plaintiff should be accepted that it was not until September 2001, in his consultation with Mr Murray, that he had the means of knowledge of the nature and extent of the personal injury caused by the alleged sexual assaults of Father Duggan. The question remains as to when, in accordance with s57 B (1) (c), the material fact of the nature and extent of his injury became a decisive fact. Again, minds might differ, but in my opinion a reasonable man, having taken appropriate advice, might hesitate in regarding the facts at that stage as justifying the bringing of an action. However, he would hesitate no longer, in my view, once he realized, during 2004, that there was a connection between Father Duggan's assault and the grave economic consequences then facing the Plaintiff.
81 I would hold that the Plaintiff's case falls within the requirements of s58 of the Act.
Section 60 G of the Act:
82 Sections 60F and 60G are in the following terms:
"60F Purpose of this Subdivision
The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date."
60G Ordinary action (including surviving action )
(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty , for damages for personal injury , but does not apply to a cause of action arising under the Compensation to Relatives Act 1897 .
(2) If an 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. "
83 Notwithstanding the terms of subsection (1) of s60G, it applies to causes of action accruing before 1 September 1990 by virtue of Schedule 5. Further Transitional Provisions (Dedousis v Water Board of NSW 125 ALR 193).
84 Section 60G must be read with s60 I which provides:
"60I Matters to be considered by court
(1) A court may not make an order under section 60G or 60H 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) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision. "
85 In light of my findings above, I am of the opinion that this application was made within 3 years after the Plaintiff became aware or ought to have become aware of the nature or extent of the personal injury (which by definition in section 11 includes disease and impairment of his mental condition) which he alleges arises from the assaults perpetrated upon him by Father Duggan. In my opinion, the Plaintiff did not become aware until September 2001 of the nature and extent of his injury nor, in my opinion, ought he have become so aware at any earlier time.
Relief should be granted?
86 The Plaintiff having established conditions precedent to the exercise of jurisdiction under ss58 and 60 G is not necessarily entitled to the relief he seeks. His entitlement is no more than to have the court exercise a discretion to grant an extension of time. S58 confers a discretion, in my opinion, which is difficult to distinguish from the Queensland statutory provisions considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. S60 G expressly includes the phrase "just and reasonable" as the relevant criterion.
87 Principally, as it seems to me, the question is whether there can be a fair trial of the Plaintiff's action. In considering this question, of course consideration of the undoubted prejudice to the Defendants arising from the delay must loom large.
The Death of Father Duggan:
88 The fact that Father Duggan died in October 2004 and was not, as I have found, able to provide a full response to the Plaintiff's claim is potentially an important matter. However, in my opinion, the uncontested evidence of Mr Steven Smith deprives that circumstance of much of its force.
89 On the evidence before me the Church and hence, in my opinion, the Trustees had the opportunity as long ago as 1983 to investigate the alleged sexual misconduct of Father Duggan. Again, on the evidence before me, it appears to have been somewhat disinterested in doing so. I can infer that it would have been equally disinterested in pursuing a complaint made at the time by the present Plaintiff.
90 Of course there may be good reasons why the complaint of Mr Smith was not properly investigated and documented. But such reasons were not advanced before me. No evidence was adduced from Father McGloin and this absence was not explained. It is rather chilling to contemplate that he is the same Father McGloin referred to in the judgment of the Court of Appeal delivered 16 September 2005, against whom allegations were made similar to those made against Father Duggan by Mr Smith and the Plaintiff.
91 I infer that Father McGloin's evidence would not have assisted the Plaintiff and in the circumstances, I would not regard the death of Father Duggan as a matter of significance in the matter before me.
Other Prejudice suffered by the Defendant:
92 Two affidavits were read by Mr Rushton which established that the defendants will suffer actual prejudice if the Plaintiff obtains the relief he seeks, namely the affidavits of John Dalziell sworn 15 December 2004 and John Usher, sworn 19 July 2005.
93 Mr Dalziell, solicitor for the Defendants, testified as to relevant enquiries made by him. His letter to the English Benedictine congregation seeking information as to whether there was any record of relevant complaints against Father Duggan while he was at Fort Augustus produced a negative response. He then testified as to a conversation with Father John O'Neill, currently parish priest in the Diocese of Parramatta as follows:
"I said: Do you remember Father Aidan Duggan?
Father O' Neill said: Yes, I served as assistant Parish Priest with him for two weeks in Bass Hill before I went to the Parish of Baulkam Hills. I remember that Father Farrar was the Parish Priest then. I think that Father Duggan has passed away.
I said: Do you remember an altar server named John Ellis who was also in Bass Hill around 1974?
Father O'Neill said: I remember the name but otherwise cannot place him, remember we are going back 30 years.