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[2014] NSWSC 83
Supreme Court of NSW
2014-02-21
Garling J
Original judgment source is linked above.
P Semmler QC / A R Cheshire (P) R Stanley QC / D Brogan (D1) C Bridge SC / M Lynch (D2) M Blake SC / J Lonergan (D3) Solicitors: Slater & Gordon (P1, P2) Australian Government Solicitor (D1) NSW Crown Solicitor (D2) Emil Ford & Co (D3) File Number(s): 2009/329777
Judgment 1In 1909, Kingsley Fairbridge founded a society at the University of Oxford, the purpose of which was to promote the emigration of children from Great Britain to its colonies. The society became known as the Fairbridge Society. 2Mr Fairbridge's vision was that schools would be established in rural communities of various of the colonies of Great Britain, and children who were living in poor and unhealthy conditions in Great Britain, having been sent there, would have an opportunity of growing up, being educated and learning a variety of skills in a much better and more healthy environment. Those learnt skills would include education, independent living and agriculture. 3In 1937, a farm and a school were established at Molong in NSW. It continued to operate until 1974. 4There were two distinct components of the operations of the Fairbridge Farm School at Molong. The first was the educational component, whereby the children attended classes to obtain an education which accorded with the then existing requirements for public eduction in NSW. In some cases, children resident at the Fairbridge Farm School received their secondary education, either in whole or in part, at nearby high schools. The second component was a residential one, which comprised of the living arrangements for the children, and as well, the undertaking of work by them, either in the agricultural pursuits of the farm, or else in the endeavour of domestic maintenance and upkeep. It is unnecessary, for the purpose of this judgment, to distinguish between these two components. It is convenient to refer to both by the term "the Fairbridge Farm". 5In these proceedings, the plaintiffs allege that at the Fairbridge Farm during much of the time, there was systemic physical and sexual abuse perpetrated on the children by a significant number of staff and others. They claim that the defendants are legally liable in damages to them for the harm, physical and psychological, which they suffered from such abuse. 6It will be necessary, shortly, to describe in some greater detail, each of the parties and the nature of the proceedings. However, it is sufficient to note at this stage that the proceedings are constituted as representative proceedings pursuant to Part 10 of the Civil Procedure Act 2005. 7This judgment deals with a series of notices of motion brought by the plaintiffs and the defendants.
Proceedings 8On 6 June 2012, the plaintiffs were granted leave to file in Court a Second Amended Statement of Claim. 9There are two named plaintiffs, the first is Geraldine Giles and the second, Vivian Drady. Each of the plaintiffs was a resident at the Fairbridge Farm, the first plaintiff between 1954 and 1964, and the second plaintiff between 1959 and 1971. 10The Second Amended Statement of Claim pleads that the proceedings are commenced as a representative proceeding pursuant to r 7.4 of the Uniform Civil Procedure Rules 2005 (NSW). That provision was repealed with effect from 4 March 2011: see Schedule 6.4 of the Courts and Crime Legislation Further Amendment Act 2010. 11The group members on whose behalf, and to whom the proceedings relate, are described as persons who, as children, were residents of the Fairbridge Farm at Molong in the State of NSW between 1937 and 1974, and who: (a)are persons who were physically assaulted and/or sexually assaulted whilst resident at Fairbridge Farm School; (b)are persons who have suffered injury and disability as a consequence of the physical and/or sexual assaults; and (c)include the persons who are named in a list which has been provided to the solicitors for the Defendants. 12The first defendant is the Commonwealth of Australia. It is sued in its capacity as the successor in law to the Minister of State for the Interior, the Minister for Immigration and as a party to an inter-Governmental agreement signed in May 1962 between Australia and the United Kingdom. It is alleged that this agreement obliged the Commonwealth to arrange for the appropriate authorities in Australia to make adequate administrative arrangements for the reception, placement and aftercare of all migrants upon arrival and to take other action with respect to them. 13It is alleged that each of the Ministers, at various points in time, was the legal guardian of each of the plaintiffs and group members during their residence at the Fairbridge Farm and accordingly, had "... the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have." 14The second defendant is the State of New South Wales. It is alleged that the State is the successor in law to the Director of Child Welfare for the State, to whom various regulations applied with the effect that legal guardianship became vested in the Director (and hence the State) with respect to each of the plaintiffs and group members who were resident at the Fairbridge Farm. It is alleged, against the State as the successor to the Director, that the Director had: "... as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have and also had the rights and powers exercisable in relation to a child committed to the custody or care of any person or authority or in relation to a ward or child of the State or any department or authority thereof." 15It is also alleged that the State had various powers pursuant to the Regulations and could have exercised them with respect to the care of the children. These allegations largely, but not entirely, reflect the allegations made against the Commonwealth, insofar as the Commonwealth Minister is alleged to be the guardian of the immigrants who resided at the Fairbridge Farm. 16In addition to these allegations, it is alleged that the State was, pursuant to the Child Welfare Act`1923 and the Child Welfare Act 1939, the relevant licensing body for the Fairbridge Farm at Molong, and that it had granted, conditionally, a licence to conduct a school pursuant to the relevant Act. It is alleged that by reason of the conditions imposed on the licence, various obligations arose in the State with respect to the care of the children. 17The third defendant is the Fairbridge Foundation, an Australian organisation that has its principal address in Sydney. 18It will be necessary to say something in due course about arguments relating to this body, including the correct identification of the body that had the responsibility for the conduct of the Fairbridge Farm. 19However, it is alleged in the Statement of Claim, that the Fairbridge Foundation was the legal custodian of each of the plaintiffs and the represented persons; was under a duty to provide for the welfare and care of those persons; and was the recipient of the grant of the licence by the State to conduct the school at the Fairbridge Farm, including compliance with the conditions of the licence. One of those conditions was that each child would be cared for to the satisfaction of the Minister.
Causes of Action 20The first cause of action alleged against each of the defendants, is claimed to be a non-delegable one in negligence, namely, that they were under a common law duty to ensure that reasonable care was taken to see that the plaintiffs and group members would not suffer foreseeable injury or disability. 21The second cause of action is one conventionally framed in negligence for the institutional failings of each defendant. 22The third cause of action is one in which each defendant is alleged to be vicariously liable for the conduct of its employees and staff for the alleged physical and sexual abuse of the residents at Fairbridge Farm. 23Although the causes of action are expressed in this way, the nature and content of the duties alleged are largely similar, and the conduct that is claimed to result in a breach of each of the causes of action, is largely common to each cause of action. 24The content of the duties alleged included, so it is pleaded, an obligation on each of the defendants not to place the plaintiffs and the group members as residents at the Fairbridge Farm at Molong, not to expose the plaintiffs to the abusive environment, which it is pleaded, existed at the Fairbridge Farm, not to expose the plaintiffs and group members to the risk of physical and sexual abuse which was known or ought to have been known as occurring at the Fairbridge Farm, and to remove the plaintiffs and group members from the Fairbridge Farm as soon as practicable upon becoming aware of the risk that they might be exposed to physical and/or sexual abuse. 25As well, the content of the duties suggests that each of the defendants was in breach of the duty pleaded because each defendant failed to act upon any information, complaint or suspicion about the occurrence of physical or sexual abuse at the Fairbridge Farm; failed to refer any information, complaint or suspicion of the occurrence of physical or sexual abuse to the police for investigation and, if appropriate, prosecution; failed to take steps to remove as quickly as practicable from the Fairbridge Farm, all persons reasonably suspected of perpetrating physical and/or sexual abuse; and failed to regularly, thoroughly and properly inspect the Fairbridge Farm so as to enable the behaviour to be discovered. 26The defendants are alleged to be directly liable to the plaintiffs and group members for their organisational failures, and also being vicariously liable for the conduct of their officers, servants or agents, including the staff at the Fairbridge Farm. 27The Second Amended Statement of Claim pleads in some detail the breaches of the various duties, and ultimately pleads that as a consequences of the breaches of duties of the defendants and each of them, the plaintiffs and group members were subjected to physical and/or sexual abuse with the result that each has suffered physical injury, psychiatric injury and/or latent psychiatric injury.
Common Questions 28As required by s 161(1)(c) of the Civil Procedure Act, the Second Amended Statement of Claim includes a statement of the common questions of law, and separately, the common questions of fact, which the plaintiffs allege will arise in the course of the hearing of the group proceedings. It is unnecessary to set out in detail these common questions. 29The common questions of law go to the construction of various pieces of legislation and the regulations upon which the plaintiffs rely, to assert that the Commonwealth and the State were properly to be regarded as the legal guardians of the children who came from the United Kingdom to the Fairbridge Farm and, if that construction is correct, the nature and content of the obligations owed by the first and second defendants to those children as their legal guardian. 30As well, the common questions of law raise the question of what the obligations were of the State as a licensing authority, and the obligations of the Fairbridge Foundation, and whether each of the defendants owed a common law duty of care of the kinds pleaded. 31The common questions of fact are set out in 12 paragraphs, one of which has 13 sub-paragraphs. 32As against the Commonwealth and State, the common questions of fact which are said to arise deal with the system which each of the Commonwealth and State adopted with respect to discharging their obligations to the children, how they went about exercising their obligations as legal guardians, what inspections were carried out of the Fairbridge Farm, what system was adopted to ensure that the plaintiffs and group members were properly and adequately cared for at the Fairbridge Farm and how each of those bodies went about dealing with any complaints which were received. 33The common questions of fact also include the conduct of the Fairbridge Farm by the third defendant, including what systems were adopted to employ staff, deal with complaints, prevent a repetition of inappropriate conduct, and generally, what steps were taken to protect and promote the health, safety and welfare of the plaintiffs and group members at Molong. 34Necessarily, because they are included in the Statement of Claim, these common questions of fact and of law do not include any reference to any defences which may be raised, nor any common issues of fact or law which arise from the pleaded defences.
Defences 35Each of the defendants has since the Notices of Motion were initially filed, now filed a defence to the Second Amended Statement of Claim. The Defence of the Fairbridge Foundation was filed in late 2012, after it had sought and received judicial advice. 36Speaking generally, it is fair to say that each of the defendants dispute liability, dispute that they owe duties of the kind pleaded, dispute as a matter of fact that there was any breach of their obligations and advance various positive defences to the claims of the plaintiffs. 37Included in the positive defences by each of the defendants, are pleadings which rely upon the expiration of the limitation period.
Defence of the Commonwealth of Australia 38The Commonwealth pleads that the legislation and the terms of the 1962 Agreement, were not intended to, and did not upon their proper construction, create a duty of care in the Commonwealth to any of the children who resided at the Fairbridge Farm. It pleads that upon the proper construction of the legislation, and having regard to the terms of the 1962 Agreement, the Commonwealth Parliament "intended to establish the statutory scheme for the benefit of society in general and did not intend thereby to create any right to a private cause of action for the benefit of any particular individual ... either generally or in relation to physical and/or sexual assault ... or in relation to consequential injury and/or disability." 39The Commonwealth further pleads that once the scheme was put in place, the State assumed the responsibility for taking precautions against the risk of harm of the type alleged and, accordingly, the Commonwealth was neither required to, nor did it have the power to, attend to the day-to-day welfare of the plaintiffs or the group members. 40The Commonwealth advances a positive defence based upon the provisions of s 5O of the Civil Liability Act 2002, saying: "... that to the extent that the conduct of the first defendant alleged to have been negligent amounts to misconduct of a person practising a profession, the first defendant relies upon s 5O of the Civil Liability Act 2002". The profession of the relevant person is not otherwise identified. 41The Commonwealth pleads that if the duties as pleaded by the plaintiffs existed and were breached as alleged (although this is denied by the Commonwealth) such conduct of the Commonwealth by act or omission was not actionable at common law because the acts or omissions pleaded, were constituted by the exercise of a discretionary power and/or a ministerial discretion, each of which involved the consideration of matters of policy, including weighing and balancing matters of government policy which, it is said, are not actionable. Further, it is pleaded that the conduct is constituted by decisions which fell within the ambit of the ministerial discretion granted under the legislation and therefore, were not actionable at common law. 42The Commonwealth also denies negligence on the following basis: "The first defendant was not negligent having regard to the social and cultural standards of the time, including the accepted social norms which dictate what were the appropriate, reasonable and socially and morally acceptable standards of behaviour of, and by, parents and guardians in relation to child rearing, child discipline and child protection in Australia." 43Finally, the Commonwealth pleads a limitation defence in the following terms: "In answer to the whole of the claim, the first defendant says that the action on the cause of action is not maintainable, and that the cause of action has been extinguished and relies upon the Statute of Limitations 1623 (21 Jac.1 C.16 (Imp)) and the Limitation Act 1969 (NSW)."
State of NSW 44The defence filed by the State of NSW is considerably shorter than that filed by the Commonwealth. It puts in issue the pleadings of the plaintiffs as to the existence and breach of a duty of care. It draws to attention, and relies upon, a number of specific statutory provisions in the Civil Liability Act, including but not limited to ss 42, 43, 43A and 44. These sections raise difficult questions of fact and law for consideration of a trial court. 45The Defence of the State also relies upon the provisions of the Child Welfare Act 1939, in particular, ss 156 and 158. It pleads that s 156 of the Act permitted it to administer punishment to children or young persons who were in its lawful care, and further, pleads by reference to s 158 of the Act that at all times it acted in good faith and with reasonable care. 46Finally, in answer to the whole of the claims, the State relies upon the provisions of the Limitation Act 1969 and, also, the time limitation provisions contained in s 158(2) of the Child Welfare Act 1939.
Fairbridge Foundation 47The Fairbridge Foundation admits some of the plaintiffs' factual allegations and puts the plaintiffs to proof of other allegations. 48Insofar as the Defence raises matters of substance, the first is contained in its defence in answer to the allegation that it stood in loco parentis to, and had control of the care, supervision, welfare and education of, each of the plaintiffs and group members, where it pleads that: "From 1937 to 1974, it was the trustee of a charitable trust for the relief of poverty, and the advancement of education, and in this capacity, pursuant to successive agreements with the Fairbridge Society (Incorporated) of the United Kingdom, had no control in relation to the care, supervision, welfare and education of the children at the Fairbridge Farm School at Molong." 49It pleads that it acquired the property at Molong upon which the Fairbridge Farm was conducted, but held the property in trust for the objects of its Memorandum of Association. 50The Defence then refers to and pleads details of, agreements entered into between the Fairbridge Foundation and the Fairbridge Society (UK) in 1938 and 1949, which agreements are pleaded to have reserved to the Fairbridge Society (UK) the right to appoint and dismiss the Principal of the Fairbridge Farm School, and by reason of agreement with that Principal, to delegate to the Principal the full charge of the children at the Fairbridge Farm, the right to employ, direct and control the staff employed at the farm and the school, and the operational conditions under which the farm and the school were carried out. 51Based upon these agreements, and its role solely as Trustee of the real estate concerned, the Fairbridge Foundation denies that any duty of the kind pleaded arose, or that it was in breach of any such duty. 52The Defence makes plain that the Fairbridge Foundation argues, in effect, that it is not the correctly named defendant and that it was in truth the Fairbridge Society (UK) that is the appropriate body which was responsible for the Fairbridge Farm. It also seeks to draw attention to the absence of responsibility where duties are delegated to an individual who is clothed with discretionary powers. 53In addition to its other pleadings, the Fairbridge Foundation also relies upon the Limitation Act, and also the Statute of Limitations 1623 (Imp).
Notices of Motion for Determination 54Each party filed a Notice of Motion which sought orders with respect to the disposition of a number of interlocutory matters. 55The hearing of these motions commenced on 6 June 2012, and continued from time to time until judgment was finally reserved. Some of the issues covered by the Notices of Motion were resolved by agreement between the parties, during the hearing of the motions. This particularly applied to some complex questions of discovery of documents, including questions of parliamentary privilege. 56Subsequently, on the application of the Fairbridge Foundation, further argument took place in February 2013, followed by written submissions of the plaintiff upon the receipt of which judgment was again reserved. 57Having regard to the pleadings of each defendant, the plaintiffs filed a Notice of Motion in which they sought an order for the extension of time pursuant to s 60G of the Limitation Act, and further, that such determination take place at trial. 58The Commonwealth of Australia moved on an Amended Notice of Motion, filed on 6 June 2012, which, relevantly, sought the following orders: "(1) An order under s 166 of the Civil Procedure Act 2005, that the proceedings no longer continue under Part 10 of the Civil Procedure Act 2005. .... (6) The application for relief as claimed in paragraph 4 of the Statement of Claim for an order under s 60G of the Limitation Act 1969, be heard and determined: (a) otherwise than at trial; and (b) after the close of pleadings; and (c) before the first defendant is required to discover documents other than those identified in the first defendant's list of Category 1 discovered documents." 59The State of NSW moved on an Amended Motion filed on 8 May 2012, seeking orders which were in substance identical to those sought by the Commonwealth. 60Ultimately, by a Further Amended Notice of Motion filed on 30 May 2012, the Fairbridge Foundation sought orders, which were in substance the same as those sought by the Commonwealth, and the State of NSW. In addition, it sought the following order: "In the alternative, a declaration under s 63 of the Supreme Court Act 1970 (NSW) that the proceedings continue as proceedings brought by the plaintiffs on their own behalf." 61Accordingly, it can be seen that although there were other issues relating to discovery, particulars and the like, the matters of substance which remain to be determined are whether the proceedings should be constituted as, and continue as, a representative action ("the Part 10 issue"), and whether the issue of the limitation defences is an appropriate one to be dealt with prior to, and separately from, the trial, or else at the trial itself ("the limitation issue"). The claim by the Commonwealth that the limitation issue should be heard before discovery was provided was not pressed before me. 62Each of the parties adduced evidence on these questions, and provided substantial submissions.
Legislative Scheme 63In this Court, representative proceedings are governed by the Civil Procedure Act, in particular Part 10. Part 58 of the Uniform Civil Procedure Rules also affects representative proceedings. That Part is not presently relevant to the issues being dealt with in this judgment. Accordingly, it is appropriate to commence the consideration of the Part 10 issue, with a review of the relevant legislative provisions. 64Before considering the specific provisions of Part 10, it is appropriate to notice the overriding purpose of the Civil Procedure Act, as contained in s 56, namely, "... to facilitate the just, quick and cheap resolution of the real issues in the proceedings." As well, the specific provisions of ss 57, 58, 59 and 60 of the Civil Procedure Act have a broad enabling effect which provide the Court with the means by which the overriding purpose of the Civil Procedure Act can be achieved. 65Turning to consider the provisions contained in Part 10 of the Civil Procedure Act, it is convenient to start with s 157 which provides for the commencement of representative proceedings. It is in the following terms: "157 Commencement of representative proceedings (1) Subject to this Part, where: (a) 7 or more persons have claims against the same person, and (b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances, and (c) the claims of all those persons give rise to a substantial common question of law or fact, proceedings may be commenced by one or more of those persons as representing some or all of them. (2) Representative proceedings may be commenced: (a) whether or not the relief sought: (i) is, or includes, equitable relief, or (ii) consists of, or includes, damages, or (iii) includes claims for damages that would require individual assessment, or (iv) is the same for each person represented, and (b) whether or not the proceedings: (i) are concerned with separate contracts or transactions between the defendant in the proceedings and individual group members, or (ii) involve separate acts or omissions of the defendant done or omitted to be done in relation to individual group members." 66None of the defendants submitted that the proceedings had not been properly commenced as a representative action, nor that the provisions of s 157 had not been complied with. 67In Part 10 of the Civil Procedure Act, standing is dealt with in s 158 which is in the following form: "158 Standing (1) For the purposes of section 157 (1) (a), a person has a sufficient interest to commence representative proceedings against another person on behalf of other persons if the person has standing to commence proceedings on the person's own behalf against that other person. (2) The person may commence representative proceedings on behalf of other persons against more than one defendant irrespective of whether or not the person and each of those persons have a claim against every defendant in the proceedings. (3) If a person has commenced representative proceedings, that person retains standing: (a) to continue the proceedings, and (b) to bring an appeal from a judgment in the proceedings, even though the person ceases to have a claim against any defendant." 68It is to be observed that s 158(2) does not require the plaintiff in representative proceedings, or the group members, to have a claim against every defendant who or which is joined. This is different from the position with respect to representative proceedings brought pursuant to the provisions of Part IVA of the Federal Court of Australia Act 1976 (Cth), and in particular, s 33D, which is in more limited terms. 69Subject to the limitation issue, the defendants did not submit that the two plaintiffs did not have standing to bring the proceedings. 70Representative proceedings are commenced by the filing of originating process. Section 161 makes provision with respect to originating process: "161 Originating process (1) The originating process in representative proceedings, or a document filed in support of the originating process, must, in addition to any other matters required to be included: (a) describe or otherwise identify the group members to whom the proceedings relate, and (b) specify the nature of the claims made on behalf of the group members and the relief claimed, and (c) specify the question of law or facts common to the claims of the group members. (2) In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members." This section is identical to s 33H of the Federal Court of Australia Act. 71Of particular importance in this case, are the provisions of s 166. This section makes provision with respect to the circumstances in which a court may order the proceedings commenced before it as representative proceedings no longer continue to be conducted in that way. 72Section 166 is in the following form: "166 Court may order discontinuance of proceedings in certain circumstances (1) The Court may, on application by the defendant or of its own motion, order that proceedings no longer continue under this Part if it is satisfied that it is in the interests of justice to do so because: (a) the costs that would be incurred if the proceedings were to continue as representative proceedings are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding, or (b) all the relief sought can be obtained by means of proceedings other than representative proceedings under this Part, or (c) the representative proceedings will not provide an efficient and effective means of dealing with the claims of group members, or (d) a representative party is not able to adequately represent the interests of the group members, or (e) it is otherwise inappropriate that the claims be pursued by means of representative proceedings. (2) It is not, for the purposes of subsection (1) (e), inappropriate for claims to be pursued by means of representative proceedings merely because the persons identified as group members in relation to the proceedings: (a) do not include all persons on whose behalf those proceedings might have been brought, or (b) are aggregated together for a particular purpose such as a litigation funding arrangement. (3) If the Court dismisses an application under this section, the Court may order that no further application under this section be made by the defendant except with the leave of the Court. (4) Leave for the purposes of subsection (3) may be granted subject to such conditions as to costs as the Court considers just." 73This provision is similar, but not identical, to s 33N of the Federal Court of Australia Act. 74The Civil Procedure Act contemplates that there may circumstances in which not all of the questions that have been nominated as common questions, will finally determine the claims of all group members. In those circumstances, the Court is entitled to give directions with respect to the determination of the remaining questions. Section 168 deals with this in the following way: "168 Determination of questions where not all common (1) If it appears to the Court that determination of the question or questions common to all group members will not finally determine the claims of all group members, the Court may give directions in relation to the determination of the remaining questions. (2) In the case of questions common to the claims of some only of the group members, the directions given by the Court may include directions establishing a sub-group consisting of those group members and appointing a person to be the sub-group representative party on behalf of the sub-group members." This section largely reflects the provision of s 33 of the Federal Court of Australia Act. 75The power to give directions is a broad one. As s 169 of the Civil Procedure Act makes clear, an individual group member may appear in proceedings for the purpose of determining a question that relates only to the claims of that group member. This is the same power as exists in s 33R of the Federal Court of Australia Act. 76In considering whether proceedings should continue as representative proceedings, it is always necessary to keep in mind one element of the statutory context of representative proceedings, namely the breadth of the power which a court has in granting relief in such proceedings. Section 177 (which reflects s 33Z of the Federal Court of Australia Act) provides for the powers of the Court, is in the following form: "177 Judgment-powers of the Court (1) The Court may, in determining a matter in representative proceedings, do any one or more of the following: (a) determine a question of law, (b) determine a question of fact, (c) make a declaration of liability, (d) grant any equitable relief, (e) make an award of damages for group members, sub-group members or individual group members, being damages consisting of specified amounts or amounts worked out in such manner as the Court specifies, (f) award damages in an aggregate amount without specifying amounts awarded in respect of individual group members. (2) In making an order for an award of damages, the Court must make provision for the payment or distribution of the money to the group members entitled. (3) Subject to section 173, the Court is not to make an award of damages under subsection (1) (f) unless a reasonably accurate assessment can be made of the total amount to which group members will be entitled under the judgment. (4) If the Court has made an award of damages, the Court may give such directions (if any) as it thinks just in relation to: (a) the manner in which a group member is to establish the member's entitlement to share in the damages, and (b) the manner in which any dispute regarding the entitlement of a group member to share in the damages is to be determined." 77It is also relevant to note that any judgment given in representative proceedings may be given in a way that binds only certain members of the group. Section 179 (which is identical to s 33ZB of the Federal Court of Australia Act) provides: "179 Effect of judgment A judgment given in representative proceedings: (a) must describe or otherwise identify the group members who will be affected by it, and (b) binds all such persons other than any person who has opted out of the proceedings under section 162." 78Questions of limitation, to which it will be necessary to give attention when considering the next issue, are dealt with in s 182 of the Civil Procedure Act but only in a limited way, namely by providing for a suspension of limitation period. It is in the following form: "182 Suspension of limitation periods (1) On the commencement of any representative proceedings, the running of the limitation period that applies to the claim of a group member to which the proceedings relate is suspended. (2) The limitation period does not begin to run again unless either the member opts out of the proceedings under section 162 or the proceedings, and any appeals arising from the proceedings, are determined without finally disposing of the group member's claim. (3) However, nothing in this section affects the running of a limitation period in respect of a group member who, immediately before the commencement of the representative proceedings, was barred by the expiration of that period from commencing proceedings in the member's own right in respect of a claim in the representative proceedings. (4) This section applies despite anything in the Limitation Act 1969 or any other law." Section 33ZE of the Federal Court of Australia Act does not include subsections (3) and (4), but is otherwise identical to these provisions. 79Finally, in this review of the legislative provisions relevant to representative proceedings, although other sections of the Civil Procedure Act give the Court abundant power to make directions, in representative proceedings that question is put beyond any doubt by the provisions of s 183 of the Civil Procedure Act. It is in this form: "183 General power of Court to make orders In any proceedings (including an appeal) conducted under this Part, the Court may, of its own motion or on application by a party or a group member, make any order that the Court thinks appropriate or necessary to ensure that justice is done in the proceedings." This section also reflects the general power of the Federal Court which is set out in s 33ZF of the Federal Court of Australia Act.
The Nature of Representative Proceedings 80Leaving aside historically appropriate representative actions, particularly arising from Equity suits, representative proceedings (or class actions) were regarded in 1992 as a controversial subject: Esanda Finance Corporation Ltd v Carnie (1992) 29 NSWLR 382 at 388 per Gleeson CJ. However, as the lucid analysis at [1.190] ff in "Class Actions in Australia" 2nd ed (2012) Grave, Adams & Betts, Thomson Reuters, shows, such proceedings, two decades later, "... have become a prominent feature of the Australian litigation landscape". 81Representative actions have a number of recognised advantages and benefits. These include:
82However, representative actions also have disadvantages. These include:
83As Lord Woolf put it in his 1996 Access to Justice Inquiry Issues Paper (Multi-Party Actions): * " ... the effective and economic handling of group actions, necessarily requires a diminution, compromise or adjustment of the rights of individual litigants for the greater good ... " 84In considering the Part 10 issue, it is appropriate to keep these features in mind, and to accord them such weight as the particular circumstances which exist here, warrant.
Submissions 85The Commonwealth submitted that the Court should order that the proceedings no longer continue as representative proceedings. 86NSW adopted the submissions of the Commonwealth that the proceedings should no longer continue as representative proceedings. The Fairbridge Foundation also made submissions to like effect. 87The bases upon which the Commonwealth so submitted were, first, that there is no proper or identifiable substantial common question that would justify representative proceedings. 88Secondly, it submitted that as the claims of the first and second plaintiffs are statute barred, they cannot represent the group members, with the consequence that the requirement of a minimum of seven persons having a claim has not been met. 89Thirdly, it was submitted that the proceedings, as representative proceedings, would not provide an efficient and effective means of dealing with the claims of the group members. This submission was founded upon a number of propositions, namely: ● there were substantial non-common issues that arose from a consideration of all of the pleadings; ● the answers to the pleaded common questions of fact or law would not provide answers suitable for a determination of the claims of each of the group members; ● issues relating to breach of duty, causation and damage would all be different with the result that any representative action could not make a common finding of negligence or damage; ● the existence of limitation defences, and the potential complexity of individual facts which apply to such defences, meant that it is inappropriate for the action to continue as a representative action. 90The plaintiffs opposed the orders sought by the defendants on the Part 10 issue. The plaintiffs submitted that the proceedings were best conducted as representative proceedings. 91First, the plaintiffs submitted that having regard to the stage reached in the litigation, it was too early for the proper determination of this issue and that the motions ought to be adjourned to a later time. Whilst there may be force in such a submission, in the circumstances here, where the defendants press for the orders, I do not think that it is appropriate for the Court to decline to give judgment on the issues raised on such a basis rather than considering the merits of the substantive submissions made. I am not prepared to adjourn the consideration of the motions to a later time. 92Secondly, the plaintiffs submitted that in light of the evidence on the motion, which was not contradicted or disputed by the defendants, about the number of children who resided at the Fairbridge Farm up to 1973, namely 1,200, of whom 890 were immigrants from the United Kingdom, that the representative proceeding is the preferable mode of proceeding in the circumstances. This was submitted to be particularly so where the solicitors for the plaintiffs have received instructions from about 70 of the group members. 93Having regard to the time periods involved, it is safe to conclude that many of the 1,200 children who resided at Molong at one time or another would be dead. Many others are likely to be elderly or infirm. In those circumstances, the plaintiffs submit that the representative proceeding is to be much preferred as the mode of disposition of the claims of the identified group members, rather than compelling the individuals in the group to bring their own proceedings. 94Thirdly, the plaintiffs submit that any alternative method of dealing with individual claims arising from the conduct of the Fairbridge Farm would not have the effect of binding all group members to any judgment delivered, particularly those group members who are as yet unidentified. The plaintiffs submitted that this ran the very real risk of inconsistent judgments on common issues being delivered, in the course of different judges, perhaps sitting as members of different courts, delivering individual judgments. 95Finally, in responding to the defendants' submission that the plaintiff did not have standing to bring the proceedings as representative proceedings because their claims were barred by the effluxion of the limitation period applicable, the plaintiffs submitted that even if the relevant limitation period had expired, the plaintiffs were entitled to bring and continue the proceedings because, under the Limitation Act, the expiration of the limitation period needed to be the subject of pleading in a defence, and potentially responded to in a reply, and was thus not a matter which precluded the commencement of, and the maintenance of, the proceedings prior to any judgment on that issue. In other words, the limitation issue is a defence which cannot prevent a plaintiff calling in aid the jurisdiction of a court on that basis alone, prior to the determination of such an issue, and only then, if the plaintiff was unsuccessful.
Discernment 96An analysis of the defendants' submissions must commence with the provisions of the Civil Liability Act which have been set out earlier in this judgment. 97Part 10 permits of representative actions. A representative action can be commenced, in accordance with s 157, if three features are present, namely: (a)where seven or more individuals have claims against the same person; (b)the claims of those seven "... are in respect of or arise out of the same, similar or related circumstances"; and (c)the claims give rise to a substantial common question of law or fact. 98The power presently being exercised by the Court, in accordance with s 166, assumes that representative proceedings have been properly commenced, and requires the Court to consider whether the interests of justice are such that the proceedings should not continue as representative proceedings. There are four specific bases set out in the section upon which a court would be entitled to conclude that the interests of justice do not permit the continuation of the proceedings as representative proceedings. As well, under the section the Court is entitled to make such an order if it is "otherwise inappropriate" for the claims to be pursued by means of a representation proceeding. 99The first specific basis in s 166(1)(a), that is that the costs of the representative proceedings are likely to exceed the costs in any separate proceedings, is not said to arise by any of the parties in the circumstances of this present proceedings. It can be put to one side. 100The second basis in s 166(1)(b), which is that all relief can be obtained by means of proceedings other than representative proceedings, provides one factor for the Court to take into account. Here it was not in dispute that it would be open to each of the plaintiffs, subject to any defences, including limitation defences, to bring proceedings individually making the claims which are made in these proceedings. The same relief would be available to a claimant in individual proceedings. This factor establishes one basis upon which the discretionary power in s 166 of the Civil Procedure Act may be exercised. 101It is convenient to address here, the fourth specific basis for the exercise of the power under s 166, namely that contained in s 166(d). With the exception of the fact that the claims of the plaintiffs are each the subject of a limitation defence, no defendant submitted that they were not able to adequately represent the interests of the group members. 102I am not persuaded that the fact which is obvious from the pleadings, that these two plaintiffs were at Fairbridge Farm for only a part of the period of its operation, means that they cannot adequately represent the interests of the group members. After all, no one person would have been at Fairbridge Farm for the whole of the period of its operation. 103The third matter identified in s 166(1)(c), which is to be considered, is whether the representative proceedings will not provide an efficient and effective means of dealing with the claims of the group members. If the Court is satisfied that they do not, then the section provides that it would not be in the interests of justice to allow the proceedings to continue as representative proceedings. 104As has been earlier recorded, the plaintiffs submit that having regard to the pleaded issue, the representative proceedings are manifestly an effective and efficient means of dealing with the claims. It will be recalled that a feature of the Second Amended Statement of Claim is that there was, during the relevant period at the Fairbridge Farm, alleged to have been an abusive environment. It is pleaded that as a consequence of this environment, the plaintiffs and group members who were resident at the Fairbridge Farm, were exposed to the behaviour of persons in an environment which permitted systemic misconduct, and allowed such abuse to occur. 105Of this broad allegation, the Commonwealth submits: "The defect in the plaintiffs process of reasoning in this respect is to assume that proof of individual instances of abuse over a 31 year period will prove that each of the first and second plaintiff and the represented persons were subject to an abusive environment common to all. Even if the Court was satisfied that the environment in which the first or second plaintiff was subjected to over the period of their residence at Fairbridge was abusive, that would not constitute proof that each of the group members were also subjected to the same abusive environment. The fallacy in this argument is the assumption that proof of the environment to which the first or second plaintiff was subjected, is proof of a common environment to which the group members were subjected." 106A similar submission is made by NSW. It said: "The controversy broadly speaking is firstly as to whether each group member (the group comprising potentially over 800 members) resident at Fairbridge for periods ranging, it seems, from one year ... to 13 years, were somehow abused and thereby suffered injury during their respective residences by one or more of the 68 alleged abusers identified to date. The group members' case does not plead the relationship of each alleged perpetrator to the third defendant, nor specifically how the second defendant is said to be liable for their conduct. ... As far as the State of NSW is concerned, the basis on which it is alleged to be responsible for the alleged abuse remains unclear at present. ... The controversy so far as the State is concerned appears to be whether, in its 34 years of connection with Fairbridge by way of licensing its continued operation through the various directors of Child Welfare, it failed somehow to fulfil some particular duty so as to avoid foreseeable injury to the various children in different periods within those 34 years. Assuming the gist of the action is one alleging the second defendant exposed the group members to an abusive environment as alleged, it is unclear how and why that is alleged to have occurred." 107All defendants pointed to the lengthy period of time, variously 31 or 34 years, over which the Fairbridge Farm operated, the obvious changes in personnel on the staff of the school and on the farm, the obvious variations in the identity of each resident and length of stay of each resident at the Fairbridge Farm over that period, the large number of individuals alleged to be responsible for the abuse, and the absence of commonality in many respects of the claims made by the group members, including the plaintiffs. 108These submissions concentrate on issues of difference, and issues of non-commonality, which are said to be so significant that the proceedings ought not continue in their current form. 109It is inevitable, when dealing with claims by multiple plaintiffs for damages for personal injury based on causes of action in tort, that there will be elements of those claims which are not common. The legislation acknowledges and gives effect to this proposition. Besides the provisions of s 166 of the Civil Procedure Act to which attention has been given, the provisions of ss 168, 169 and 170 all provide a mechanism which recognises that not all questions in all claims by all individual group members will be resolved in a single hearing. In particular, s 168(1) specifically contemplates the need for the Court to give directions with respect to remaining outstanding questions. 110Accordingly, when one is considering under s 166 of the Civil Procedure Act whether the representative proceedings will, or will not provide an efficient and effective means of dealing with the claims of group members, it needs to be borne in mind that there is no necessary expectation that the representative proceedings will deal with all claims of all group members through to finality although the claims of the plaintiff (or plaintiffs) may be so dealt with. It is a part of the legislative scheme for representative proceedings, that the Court is entitled when it decides that it is appropriate so to do, to order that proceedings be continued individually, or else the individual questions be determined separately. A relatively recent example of this approach is to be found in Merck Sharp & Dohm (Australia) Pty Ltd v Peterson [2009] FCAFC 26. 111The plaintiffs submitted that upon the basis of the pleadings and defences, there were a significant number of common questions of law and fact such as would justify the continuation of the proceedings as representative proceedings, at least at this point in time. 112In particular, with respect to the legal issues referring to the existence of a duty on the Commonwealth and the State, the plaintiffs submitted that having regard to the pleaded basis for the existence of the duty, including the nature and content of the duty, an identical duty must arise for each member of the group who was an immigrant from the United Kingdom. 113As well, the plaintiffs submitted that the nominated common questions of mixed fact and law relating to the third defendant, the Fairbridge Foundation and its role and function with respect to the Fairbridge Farm, would all arise in the context of any claim made against the Fairbridge Foundation by any group member. 114With respect to the common questions of fact set out in Annexure B to the Second Amended Statement of Claim, the plaintiffs submitted that as those questions demonstrated, the allegations of breach of duty involve systemic failures by the three defendants. The plaintiffs submit that rather than these failures existing on a different basis for each plaintiff and group member, the evidence about and findings which they seek this Court make, must be common. 115Finally, the plaintiffs point to matters raised in the pleaded defences which they submit are matters of substance and which must necessarily be common to all claims. These matters include: (a)whether the contemporaneous mores and culture of the time permitted corporal and other punishment of children of the kind, speaking generally, which was administered; and (b)whether the resources available to the defendants enabled them to conduct themselves differently from the ways which the plaintiffs claim they did, or else should have done. 116The defendants challenged these identified common issues, largely by submitting that whilst such issues may appear to have some degree of commonality, given that each individual claimant in a tortiously based claim needs to establish that the duty is owed to them individually and that any breach is a breach of that individual duty, then the real likelihood was that there would not in truth be such commonality of fact or law. The defendants drew attention to the length of time covered by the allegations in the plaintiff's claim. 117The defendants in particular challenged the notion of an "abusive environment" to which considerable attention is devoted in the Second Further Amended Statement of Claim. The defendants submitted that the proof that such an environment existed could not be a relevant fact in the causes of action alleged. I have earlier referred to their submissions to this effect. 118It is not appropriate on this motion to reach a concluded view on whether the plaintiffs would be entitled to prove the existence of such an environment. However, it is appropriate that I note that I am not persuaded that the proof of such an environment as is pleaded would be wholly irrelevant to the determination of the issues joined between the parties. If permitted into evidence at any hearing, the "environment" would seem to be common to a number of the plaintiffs and group members. Whether this will ultimately be so, can only be determined by the trial Judge. 119Against this review of the pleaded issues, and the submissions of the parties, it is necessary to identify the authorities and resolve the arguments, and to examine, also by reference to s 166(1)(e), whether it is otherwise inappropriate for the claims to be pursued by means of representative proceedings. 120The plaintiffs drew attention to the decision of the Full Court of the Federal Court of Australia in Bright v Femcare Ltd [2002] FCAFC 243; (2002) 195 ALR 574 which they submitted was instructive on the approach to be taken by this Court to an application such as the defendants were making. Although Bright was a decision dealing with the provisions of the Federal Court of Australia Act, those provisions are sufficiently similar for the principles enunciated, and the comments made by judges in the Federal Court in that decision and others with respect to similar provisions, to be applicable in this application. At [149], Kiefel J said: "In my view the motion brought by the first respondent was premature, in the sense that it required a view of the evidence which is likely only to be gained after a hearing, or at least a hearing on those issues. If the trial judge considers that the findings to be made have application to the other claims, appropriate determinations and orders can be made. The question whether to make an order of discontinuance under s 33N(1)(c) could be revisited at that point." The plaintiff submitted that at this stage, the defendants' motion was premature, and for that reason alone, ought to be dismissed. 121On the more general point of the approach to be appropriately adopted in considering whether or not to make an order that proceedings are not to continue as representative proceedings, Lindgren J warned against the premature determination of issues under s 33N of the Federal Court of Australia Act. At [18] he said: "18 The applications under s 33N were made at a procedurally early stage. Defences have not yet been filed. In substance, the applicant commenced a representative proceeding which ex hypothesi, the legislature intended she be entitled to commence because of the presence of substantial common issues of law and fact, yet the Court was immediately asked to accept that the proceeding would not provide an efficient and effective means of dealing with the claim of the Group Members. I do not mean to suggest that an application under s 33N at such an early stage of a properly commenced representative proceeding would always be premature: if there were an incompatibility or conflict between the representative party's case and the cases of the represented parties (cf Tropical Shine Holdings Pty Ltd (t/a KC Country) v Lake Gesture Pty Ltd (1993) 45 FCR 457 at 464) or if the only substantial common issue were one of law on which a decision in the case of one group member would bind the others, it may be thought not efficient or effective for the representative proceeding to continue. But ordinarily one would expect that, in an attempt to give effect to the legislative intention, a means will be sought, by case management techniques, to enable a representative proceeding to continue to the stage of resolution of the substantial common issues on the basis that after that stage is completed, an order under s 33N or directions under s 33Q will be made (cf the order made by French J in Zhang v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 384 at 403, 404, and the course followed by Stone J in Vasram v AMP Life Ltd [2000] FCA 1676 at [18])." 122In considering the discretionary issue posed for determination, Lindgren J went on to say at [21]: "This is not to say that the respondents' submission is not important for case management purposes. It is unjust that a respondent be vexed with a representative proceeding over a long period during which the unmeritorious nature of the claims remains hidden because it resides in non-common issues. But in my opinion, the present representative proceeding can be managed in such a way that the common issues can be determined so that the determination binds the applicant and Group Members (cf ss 33Z and 33ZB of the Act), and contemporaneously a selected number of the individual claims can be finally determined, that is, on their non-common issues as well (see ss 33Q and 33ZF)." 123At [128] Kiefel J said: "As her Honour the primary Judge observed, a proceeding might satisfy the requirements of s 33C(1), but an order for its discontinuance as a representative proceeding might nevertheless be appropriate under s 33N(1). In general terms the matters listed for the Courts consideration under paras (a) to (c) of the latter subsection require consideration as to what would be achieved by a determination of the proceedings in their present form and the costs of doing so. If there is some real benefit to be gained, the requirement that the proceedings be seen as an inefficient means of dealing with the claims might not be met. A consideration as to whether the proceedings would, or would not, provide an efficient means of dealing with the claims of group members, would almost certainly involve an assessment of the findings which might be made in an applicant's case and of the extent to which they would be likely to resolve the other claims. It does not seem to me that the subsection requires an audit to be conducted of the findings which might be useful, and those which might not be in the other claims. The enquiry required by the subsection is not whether the continuance of the representative proceeding can be seen to be efficient, but whether the Court is satisfied that it is in the interests of justice to order its discontinuance as a proceeding ... " 124Finkelstein J, the third member of the Bench in Bright, acknowledged that it was to be expected that a representative proceeding would not resolve all issues in a dispute. His Honour considered that it was appropriate in considering whether or not the interests of justice were such as to favour the making of an order under s 33N of the Federal Court of Australia Act, there needed to be weighed in the balance, the broad public interest and the interest of the administration of justice, both of which, he held, favoured class actions. 125His Honour went on to say: "152. That requires one to consider the principal objects of the class action procedure. They are: (1) To promote the efficient use of court time and the parties' resources by eliminating the need to separately try the same issues; (2) To provide a remedy in favour of persons who may not have the funds to bring a separate action, or who may not bring an action because the cost of litigation is disproportionate to the value of the claim; and (3) To protect defendants from multiple suits and the risk of inconsistent findings. 153. There will be cases where a representative proceeding will not resolve all issues in the dispute. Commonly, for example, a representative proceeding will be suitable to try issues of liability, while proof of damage and other remedies may be left to each individual member of the class to establish. Sometimes the benefit of a representative proceeding will be even less than that. There will be cases where a class action will do no more than resolve certain issues relating to liability, leaving others to be dealt with on an individual basis. Inducement in a fraud case, for example, could rarely be dealt with as a common issue." 126Also to be considered in determining whether or not the discretionary power in s 166 of the Civil Procedure Act ought be exercised, are questions of the capacity of the Court to manage the litigation. In Guglielmin v Trescowthick (No.2) [2005] FCA 138; (2005) 220 ALR 515, Mansfield J, in dealing with s 33N of the Federal Court Act said at [76]: "The further management of this proceeding may include consideration of the creation of sub-groups within the claim group. It may include consideration of orders for the separate trial of issues. It may include directions that the issues of relevance be refined by reference to the circumstances of particular sub-groups or members of the claim group, as a preliminary step to considering how the hearing should progress. I agree that the inquiry which the proceedings requires should not become (as senior counsel for the first respondent put it) a Royal Commission into the conduct of the affairs of [the company] or the role generally of its directors in the conduct of its affairs. I think further case management will reveal whether that danger can be avoided and an efficient and useful focus applied to the further conduct of the proceedings." 127His Honour went on to hold, consistently with what Finkelstein J said in Bright, that he was entitled to have regard to the public interest, which included whether it was an efficient and effective use of the Court's resources to hear and determine claims if they were mounted individually, as compared with a single class action. 128It is necessary to take into account all of these issues, and to consider whether, given that the application has been made, at the present stage of the proceedings, it is appropriate for the Court to exercise its discretion under s 166 of the Civil Procedure Act to order that the proceedings no longer continue as representative proceedings. 129The context, size and range of the representative proceedings need first to be considered as it provides the extent within which the discretion is to be exercised. 130In addition to the two named plaintiffs, by a letter of particulars dated 26 August 2011, the solicitors for the plaintiffs provided the names of a further 65 individuals who would be group members. The earliest point in time at which one of these group members attended at the Fairbridge Farm was in 1938. The latest in point of time was 1971. The solicitors for the plaintiffs have also indicated that they act for a further three individuals who were not then named as being group members. 131The overall period covered by the operation of the Fairbridge Farm is about 34 years. It is undoubted that over that time there will have been different staff members, although some will have remained for significant periods. But it is also clear that some staff members will be the subject of allegations made by more than one of the group members. The particulars provided that 68 individuals are pointed to as being perpetrators of the abuse. 132From the pleadings, it is clear that there are some complex questions of law surrounding the existence of a duty of care by each of the defendants. This requires an analysis of legislation in respect of the first and second defendants, the inter-governmental agreement in respect of the Commonwealth and a variety of documents, including licensing documents, so as to enable an identification of who, in truth, was in control of the affairs of the Fairbridge Farm. 133Given that each of the plaintiffs falls within an identified group, namely, children who attended at the school, and were resident on the Fairbridge Farm, the issue of the nature and content of any duty of care on the part of each defendant, and how it arises is most likely to be identical with respect to each member of that group. 134The contention advanced, at least by the first and second defendants, with respect to why a duty is not owed, also equally applied to all members of the group as well as the plaintiffs themselves. This question of duty of care is a matter of substance which at this stage appears to be a common question which would require findings of fact and determination of questions of law. 135In considering whether or not a duty exists, and if so, whether in respect of either plaintiff, any defendant has breached that duty, a central question will arise to which the parties have not specifically adverted, which is whether, having regard to the provisions of s 3B of the Civil Liability Act, and in light of the nature of the claims made in the pleadings, the Civil Liability Act applies to the claims made. 136If that Act applies, ss 5B and 5D involve considerations which are likely to involve factual findings applicable to the claims of the plaintiffs and all group members, such as: (a)the actual or constructive knowledge of each defendant of the relevant risk of harm; (b)the social utility of the relevant activity, namely, the undertaking of the Fairbridge Farm; (c)what reasonable community standards were, at the relevant time, particularly with respect to the administration of corporal punishment. 137Similarly, the pleading by the Commonwealth raises a substantial common issue, namely that it was not negligent "... having regard to the social and cultural standards of the time ..." including what standards of behaviour were "... socially and morally acceptable ...". 138As earlier noted, in addition to the two plaintiffs, their solicitors are presently aware of a further 65 group members, and the potential size of the entire group may well be in the many hundreds. If the Court was to hear each of these cases as individual cases, the call upon the Court's resources would be very significant. The call upon such witnesses as are available to the defendants would also be significant. They may have to give similar evidence many times over, because there is a very real likelihood that the same witnesses would be called upon to give similar evidence in each individual case. 139The defendants submitted that, by the appropriate use of the procedure contemplated by Part 28 of the UCPR, which would enable separate questions to be identified if individual proceedings were continued for each plaintiff and each group member (but were heard together in a single hearing where appropriate), the call upon judicial resources and resources of witnesses could be reasonably managed and minimised. That may be so, however, such a method of proceeding would not be able to bind any of the other potential claimants who are not yet specifically identified and whose claims would be determined by a representative proceeding under Part 10 of the Civil Procedure Act. It has no obvious benefit over a representative proceeding, and obvious disadvantages to a defendant. 140In dealing with the common issues which have been identified, there is a risk, as the defendants correctly submitted, particularly given the 34 year operation of the Fairbridge Farm, that the hearing of those questions would become a procedure which was closer to an inquiry of the kind conventionally seen in a Royal Commission, rather than the determination of an adversarial dispute upon which the plaintiff bears an onus of persuading the Court that he or she has proved each of the elements of the pleaded cause of action. 141This is a factor which is to be weighed in the determination. But, I think, as did Mansfield J in Gugliemin, that any such risk can be managed with appropriate directions. As well, a hearing by means of common questions as a part of representative proceedings means that there is a positive benefit in terms of the saving of legal costs for the parties, which is readily able to be identified. 142The defendants in their submissions, pointed to the many differences which were likely to be encountered in the course of hearing a representative proceeding. So much can be accepted, particularly since these are all claims for personal injury arising out of physical abuse or sexual assaults. However, as I have earlier noted, the legislative scheme of representative proceedings recognises that this may be so, and the Court's power to give directions can be readily used to ensure that the existence of such differences do not work an injustice on the parties. Taken with the public interest to which Finkelstein J has referred in Bright, this factor is not sufficient, without more, to justify an order under s 166. 143Ultimately, it is a question, in light of the foregoing and all of the submissions of the parties, of whether the Court is satisfied that it is in the interests of justice to order that the proceedings no longer continue as representative proceedings under Part 10 of the Civil Procedure Act, having regard to the provisions of the various subsections in s 166 of the Civil Procedure Act. 144I am not so satisfied. On the contrary, as things presently appear, at this stage of the proceedings, I am satisfied that the most efficient and cost effective method of disposition of these claims is by a representative proceeding as it is presently constituted. 145In my judgment there are significant benefits to the plaintiffs, group members and each defendant in terms of the timeliness and efficiency in hearing and disposing of all common issues of fact and law at one hearing, and in a way which binds all group members to the results of the determination of the common questions. 146Importantly as well, from the perspective of the proper use of the Court's resources and in the circumstances here present, there is a significant saving of judicial time in a single hearing of all common questions together with a consistent approach to case management procedures. Such an approach is also most likely to achieve consistency of decision making. The proceedings as presently constituted are in the form of procedure most likely to result in the achievement of the overriding purpose of the Civil Procedure Act and the UCPR. 147Accordingly, I decline to make an order under s 166 of the Civil Procedure Act that these proceedings no longer continue under Part 10 of that Act.
The Limitation Issue 148The principal question to be determined is, at what stage of the proceedings the issue raised by each of the defendants on their pleadings relating to the expiry of the limitation period with respect to each of the claims brought by the plaintiffs ought to be heard and determined. 149Some of the underlying facts are not in dispute for present purposes. They include: (a)the first plaintiff, Dorothy Giles, was born in 1947 and was a resident of Fairbridge Farm between about 1954 and 1964. Accordingly, the first plaintiff was about 17 when she left the Fairbridge Farm, and was about 62 years old when these proceedings were commenced; (b)the second plaintiff, Vivian Drady, was born in 1955 and was a resident of Fairbridge Farm between about 1959 and 1971. Accordingly, the second plaintiff was about 16 when she left the Fairbridge Farm, and was about 54 years old when these proceedings were commenced; (c)of the identified group members, the oldest is Ronald Simpson, who was born in 1928 and attended Fairbridge Farm between 1938 and 1947. He was about 19 years old when he left and was about 81 when the proceedings were commenced; (d)the youngest identified group member is Valerie Corrigan, who was born in 1962 and attended Fairbridge Farm between 1966 and 1971 She was about 9 years old when the Fairbridge Farm ceased to operate and was about 37 when these proceedings were commenced. 150All parties accepted that, whether or not the limitation period in respect of either of the plaintiffs, and any group member, had expired prior to the commencement of the proceedings was a matter which had to be determined separately with respect to each individual. In other words, such a question could not be a common one. As the matter is presently pleaded, the only issue is whether the limitation period for each plaintiff has expired. There is no limitation issue pleading relating to group members. It follows that the determination of whether either plaintiff or a group member should be entitled to an extension of time is not, and cannot be, a common issue in the proceedings. It must be determined on an individual basis. 151The defendants submitted that the Court should find that one of two pieces of legislation was applicable to fix the limitation period. The first was the Limitations Act 1601 (Imp) (21 Jac.1.c16), and the second is the Limitations Act 1969. The Imperial legislation, it was submitted, fixed a limitation period of six years from the cause of action being complete, and does not provide for an extension of that period. However, the Imperial Act does make particular provision with respect to infants or people who are "non compos mentis". The limitation period does not run whilst a person is in this condition. As well, the Act provided for, in effect, an extension of time, for "femmes couvert" (married women) during the period of their marriage. The phrase "non compos mentis" is not defined in the legislation. Ascertaining the appropriate meaning for this phrase is unlikely to be a simple task. 152If the NSW legislation, as the plaintiffs submitted, is applicable to the claims, then the provisions of Subdivision 1 of Division 3 of the Limitation Act will have effect. Those provisions enable an extension of the limitation period to be granted where a plaintiff can satisfy the Court that one or more material facts of a decisive character relating to the cause of action was not within the knowledge or means of knowledge of the claimant until after a date within the 12 month period preceding the expiry of the limitation period. 153If an extension was sought in accordance with these provisions, a claimant needed to establish a number of other matters including but not limited to, that there is evidence to "... establish the cause of action". 154As well, so the plaintiffs submitted, an extension may also be able to be granted by a Court in accordance with Subdivision 2 of Division 3 of the Act, in which case similar but not identical considerations would arise. 155As has earlier been mentioned, each of the defendants rely in their pleadings upon the expiry of the limitation period. Thus there is a pleaded issue which the defendants seek to have determined in advance of the hearing of the other issues in the pleadings. In those circumstances, it is necessary to have regard to the provisions of Part 28 of the UCPR, which deal with the determination of separate questions. It is also necessary to keep in mind the authorities which deal with this part of the UCPR. The provisions of Part 10 also provide an ample power to determine this issue. 156The defendants submitted that it was not uncommon in personal injury claims for this Court to hear the limitation issue in advance of any full hearing of the remaining issues. It is true that there have been many occasions when this has occurred, but the context of the pleadings in those many cases is of central importance. Clearly, where a plaintiff seeks in advance of filing a statement of claim, an extension of time for filing their claim, it is necessary for the Court to hear and determine that issue. That is because the claim can be, and commonly is, contained in a separate summons for relief. However, if the limitation issue is raised on the pleadings as an issue, then ordinarily, the Court needs to consider whether making an order under Part 28 is appropriate having regard to the interests of parties, and having regard to the overriding purpose of the Civil Liability Act and the UCPR. The cases do not suggest any common practice of the Courts in this respect. 157The submissions of the defendants also pointed to the unfairness of hearing the limitation issue at the same time as the substantive proceedings because they would: (a)each be exposed to the significant costs of the final hearing in circumstances where, having regard to the age of the causes of action relied upon, there was little, if any, prospect of the plaintiffs succeeding on the limitation issue; (b)be able to deal with any hearing limited to the limitation issue quickly and with far more modest legal costs and expenses than with respect to the alternative proposed; (c)the hearing of the limitation issue could take place largely by reference to contemporaneous documents and largely without the need to call any witnesses; (d)because of the length of time since the alleged causes of action rose, the defendants submitted that it was inevitable that they would be prejudiced in their preparation for and presentation of evidence in the principal hearing, and accordingly, should only just have to deal with the issue of extension of the limitation period. 158In addition to these submissions, the third defendant, Fairbridge Foundation, drew attention to its unique position as a party to the proceedings. It submitted that it was a charitable organisation, with limited financial resources. It submitted that the provisions of various paragraphs of its Defence, filed after obtaining judicial advice in October 2012, namely, paragraph s8(c), 9(d)(iii) and 15(a) and (b), indicate that the plaintiffs have no cause of action against it. 159The Fairbridge Foundation submitted that since it was necessary for the plaintiffs to show on any application for extension of the limitation period that there is evidence to establish their cause of action and, by analogy with the decisions of the Court of Appeal in Yu v Speirs [2001] NSWCA 373 at [50], and Trustees of the Roman Catholic Church of the Archdiocese of Sydney v Ellis (2001) 70 NSWLR 565 at [9], they could not prove responsibility for the conduct pleaded as falling on the Fairbridge Foundation. The procedural course which would best achieve the overriding purpose of the Civil Procedure Act was to hear the application to extend the limitation period separately and in advance of the hearing. 160On the other hand, the plaintiffs submitted the course which best advanced the overriding purpose of the Civil Procedure Act, and which was in the interests of justice, was to hear the limitation issue at the same time as the principal hearing. 161The plaintiff submitted that the strength and weakness of each party's arguments on the likelihood of an extension being granted were irrelevant to the question in issue here. If the Court was satisfied that the issue on both sides was a properly arguable one, then no further enquiry into relative strengths ought be engaged in and was irrelevant. 162The plaintiff pointed to real benefits in hearing the limitation issue with the principal proceedings including that the plaintiffs themselves ought not to have to give evidence twice, particularly having regard to the subject matter and nature of the claims. 163As well, the plaintiffs submitted that where representative proceedings were properly on foot and continuing, a Court would rarely, if ever, hear an issue which applied only to a named plaintiff and not to group members, before the Court first heard and determined the principal issues. The plaintiffs submitted that such an approach was antithetical to representative proceedings concept and procedure, and was inefficient. 164The plaintiff pointed to the authorities on separate questions in accordance with Part 26 of the UCPR, and submitted that no sufficient reason had been demonstrated to separate any question for hearing in advance of the principal hearing.
Discernment 165As has earlier been noted, the limitation issue, which is the subject of the motion and judgment, is not an issue which is common to the plaintiffs and all of the group members. Rather, it is an issue affecting only each of the plaintiffs. 166It may be that a limitation issue arises in due course with respect to each group member, but no party has formulated or proposed a common question to deal with the issue for the whole group. Accordingly, in considering this question, the position of the group members insofar as the limitation issue is concerned, should be put to one side. 167A court considering the limitation issue is required to consider whether it should exercise a discretion to extend time, which discretion: "... should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing. The onus of satisfying the Court that the discretion should be exercised in favour of the applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an beyond the limitation period would not result in significant prejudice to the prospective defendant." See Brisbane South Regional Health Authority v Taylor [1996] HCA 2; (1996) 186 CLR 541 per Dawson J. 168In Brisbane South, Toohey and Gummow JJ identified the "real question" as "... whether the delay has made the chances of a fair trial unlikely". 169Of course, the discretion which is to be exercised arises for consideration after the foundational matters, such ignorance of facts of a decisive character, and existence of a provable cause of action are made out. 170In considering this issue, and the submissions of the parties, it is also important to keep in mind that the issue arises in a context where representative proceedings have been commenced, and are to be continued as representative proceedings, and the limitation issue is an individual (that is, to the two plaintiffs) and not a common one, and is raised on the pleadings. 171Each of the defendants argues that they have a very strong basis for resisting the application for extension of time, and that it is unlikely that either plaintiff will succeed on their application. Conversely the plaintiffs assert that they have a proper basis for an extension of time. 172It is not possible to resolve these contrasting submissions. Properly, none of the parties have put before this Court any evidence on the limitation issue. In the absence of that evidence, even if it were relevant so to do, and I doubt that it is, I am not prepared to make any finding about the strength of the parties' cases on the issue of obtaining an extension of the limitation period. I will proceed to determine this question on the only basis available to me, namely, that all parties have an arguable case on the issue. 173The determination of the question as to when the limitation issue ought to be heard is not easy of resolution. There are factors which weigh in favour of each argument. Neither solution is without disadvantages. The resolution depends upon forming a view as to what is in the interests of justice, and which alternative best saves the overriding purpose of the Civil Procedure Act. As well, the Court must consider the objects of case management as recorded in s 57 of the Civil Procedure Act. 174At its foundation, the issues can be seen as one where the Court is being asked to allow the determination of a non-common issue in a representative action to precede the hearing of the principal claims, with the anticipated result, which is said to be advantageous to the defendants, that the two plaintiffs could not proceed with their action, and judgment would be entered against them. 175However, even assuming that the issue was determined against the plaintiffs, and judgment were to be entered against them, that would not necessarily mean that the representative proceedings itself would be dismissed. The provisions of s 171 of the Civil Procedure Act would permit, in such circumstances, another group member to apply to be substituted as the "representative party". Given that there are a significant number of group members who have already been identified, there is every likelihood that this would occur. A similar limitation issue would, I infer, then arise with respect to that added representative party, and any subsequent representative party. 176Shortly put, the likely consequence of success by the defendants on the limitation issue, if heard first and in advance of the principal claims, is that the Court would be faced with successive individual actions for an extension of the limitation period by the group members. That succession of limitation actions would, whilst awaiting hearing, judgment and any appeal, inevitably delay, probably for an extended period, any hearing of the principal claims. Any such delay must have the effect of exacerbating the prejudice which, in light of the lapse of time since the events at Fairbridge Farm took place, must be assumed to exist. The quality of the justice ultimately administered by the Court will have deteriorated further. 177As well, there would be a duplication in the evidence to be adduced at a separate hearing of the limitation issue. This duplication may well involve a number of witnesses. Firstly, each plaintiff would be an essential witness on both an application to extend the limitation period and, if successful, the hearing of their principal claims. They would be exposed to cross-examination on two separate occasions on the same subject matter. Having regard to what they said occurred, and the fact that they each claim to have suffered a psychiatric and psychological harm, it is undesirable to expose each plaintiff to these circumstances. 178Another essential witness (or witnesses) on both the application for an extension of the limitation period would be the expert psychiatrists whose opinions would be likely to be relied upon to establish the nature and extent of the psychiatric injury suffered by each plaintiff and the causal relationship with what is said to have occurred at the Fairbridge Farm. Such experts' evidence may also, where relied upon, deal with any question of legal incapacity upon which either of the plaintiffs may rely, as being specifically relevant to an extension of time. 179It will be necessary also for a plaintiff to prove that they have a reasonably provable cause of action before obtaining an extension. The defendants here assert to the contrary. Any hearing of the evidence on this issue, whether it be wholly or partly documentary, will, although to a varying extent, involve a duplication of the evidence which will be led at the hearing. In particular, it will be necessary for the parties to an extension application to address the question, even though at a different level when compared to a final hearing of the principal issues, of the question of what reasonable standards were in the period during the operation of the Fairbridge Farm, with respect to the conduct of the defendants. This also involves an element of duplication. 180Not only do these issues of duplication mean that the expense to the parties by having potentially two hearings, would be significantly increased, there would be a significant increase in the demand upon judicial resources as well. 181As the authorities show, one issue of importance in an extension application for the Court to consider, and for the parties to deal with by evidence, is whether a fair trial would be likely. Often prejudice to a defendant which is apparent from the mere unavailability of a witness whether through death or otherwise, does not result in an unfair trial, because other evidence may be available which can deal adequately with the issue. Such an eventuality can be difficult to discern during an extension application when a defendant is not obliged to reveal at that stage, the whole of their case, merely to point to any matters of prejudice and disadvantage which they apparently suffer. 182It is important to keep in mind the question of costs and expense to the parties. Hearing on the one hand, a series of preliminary hearings on extension of the limitation period does not come without legal costs and expenses, but exposing the defendants to a hearing of the principal issues is also expensive. I am unpersuaded by the evidence that one alternative is necessarily significantly cheaper and more cost effective than the other. 183The position of the Fairbridge Foundation, particularly with respect to cost and expense, is ultimately, no different from the others. The submissions of the Fairbridge Foundation suggests that it wishes to argue, and asserts that it has a strong case so to do, that whatever be established as to the conduct at the Fairbridge Farm, its particular position means that it is not liable, either directly, or else vicariously for that conduct. Such an argument is a confined one, and one for which the evidences will also be confined and is probably, largely documentary. In those circumstances, there is no obligation on, or necessity for, the Fairbridge Foundation to be present at, or participate in, the whole of the hearing of the principal claims. It may choose to do so, but an assessment of the costs likely to be incurred, which in my view is appropriate, is one which concentrates on the necessary part of its attendance. That will be very similar whenever the argument is put. 184In all of the circumstances, I am of the view that whilst the matters are balanced, the interests of justice are best served by ordering that the limitation issue be heard and determined at the same time as the principal claims, rather than in advance of those claims. I am satisfied that this is because this course will result in the most efficient use of the Court's resources, and the timely disposal of the representative proceedings as a whole. It will also avoid a real disadvantage in this case of requiring the plaintiff and other witnesses to give evidence twice on largely similar issues. 185Whilst there will be some disadvantages in this course to the defendants, I am satisfied that those disadvantages are not sufficient to prevail. 186It follows that orders should be made providing that the hearing of the limitation issues should take place at the same time as the principal issues and that the motions should be otherwise dismissed.
Orders 187I make the following orders: (1)Amended Notice of Motion of first defendant filed 6 June 2012 be dismissed. (2)Amended Notice of Motion of second defendant filed 8 May 2012 be dismissed. (3)Further Amended Notice of Motion of third defendant filed 30 May 2012 be dismissed. (4)Order that the hearing and determination of the pleaded limitation issue take place at the same time as, and as part of, the final hearing of the plaintiffs' claim. (5)Notice of Motion of plaintiffs filed 3 December 2010 be otherwise dismissed. (6)Costs reserved
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Giles
Commonwealth of Australia
(2002) 195 ALR 574
(1996) 186 CLR 541
(1992) 29 NSWLR 382
(2005) 220 ALR 515
(2001) 70 NSWLR 565
(1993) 45 FCR 457
(1993) 45 FCR 384