HWC v The Corporation of the Synod of the Diocese of Brisbane & Ors

The applicant commenced proceedings on 15 August 2002 and in that claim he sought compensation from the first respondent only.

His drug taking increased throughout 2002 and he became addicted to both illicit and prescription drugs. By April 2003 his opiate habit had made fulltime work untenable and he advised his psychiatrist and his wife of his narcotic addiction. This was reported to the New South Wales Medical Board in June 2003 as he was resident and practising in that State. On 17 October 2003 the New South Wales Medical Board imposed restrictions on his right to practise due to his opiate dependency and psychiatric condition. The Interview Report of the New South Wales Medical Board dated 13 January 2005, records that the applicant had suffered from severe depression since 2001 and since 2002 had abused narcotics, first in the form of smoking heroin and then injecting intravenous pethidine.

The committal proceedings for Knight commenced in September 2003 and the applicant spent three days giving evidence. On 6 October 2003 he took an overdose of morphine tablets. There was a further suicide attempt in late October 2003. His marriage ended in late 2005. The applicant has in recent years worked part-time as a medical practitioner and he has at times been subject to restrictions on his right to practise.

The preliminary issues relating to jurisdiction

[23] When the matter came on for hearing on 14 March 2008, the second and third respondents raised an issue in relation to s 78(b) of the Judiciary Act 1903 (Cth) and whether notice of the cause needed to be given to the Attorneys-General for the States as there was a cause pending in a court which involved a matter arising under the Constitution of Australia or involving its interpretation. However, having considered the matter further, Counsel for the State of South Australia now submits that there is "...no matter of sufficient novelty or importance warranting the issue of notices pursuant to s.78B of the Judiciary Act..."[2] There are, however, a number of preliminary observations which need to be made and I note the helpful submission from Counsel for the second and third respondents in this regard.

[24] It is clear that this action relates to proceedings where the applicant was a resident of New South Wales at the time that proceedings were commenced against the second and third respondents. The applicant does not appear to have resided in Queensland since 1996. He also seeks to sue the Minister of Education for the State of South Australia who is the second respondent, as well as the State of South Australia who is the third respondent. There is authority to support the conclusion that the statutory corporation, the Minister of Education, is, for all present purposes, the State of South Australia.[3] Therefore, the action against both the second and third respondents is an action between a resident of the State of New South Wales and the State of South Australia. It follows that this is an action which falls within the original jurisdiction of the High Court of Australia[4] and consequently it is within "...federal jurisdiction."

Section 39 of the Judiciary Act 1903 (Cth) invests the Supreme Court of Queensland with federal jurisdiction in the circumstances of this case.

[26] In Blunden v The Commonwealth of Australia the High Court of Australia stated that:[5]

"[i]t is established by The Commonwealth v Mewett 31 that the liability of the Commonwealth in tort is created by the common law and that s 75(iii) of the Constitution denies any operation to doctrines of Crown or Executive immunity which otherwise might be pleaded in an action to recover damages in respect of a common law cause of action."

[27] Section 75(iv) of the Constitution of Australia deals with a claim or action between a State and a resident of another. Based on High Court obiter dicta, the second and third respondents posit that this section likewise abrogates the immunity of the State against suit.[6] It is clear that the State of South Australia is not immune from suit in this Court and the third respondent makes no submission to the contrary.

[28] Whilst it would seem that, pursuant to s 58 of the Judiciary Act, the applicant should commence proceedings in the Supreme Court of South Australia, the State can waive its rights to insist upon the resident of another State commencing an action in the proper forum.[7] At the hearing, Counsel for the third respondent did not contend that this Court was an inappropriate forum for the determination of the action brought by the applicant against it and accordingly indicated that the State of South Australia did not intend to raise any objection under s 58. The State of South Australia has therefore submitted to the jurisdiction of the Supreme Court of Queensland.

[29] The next question that needs to be determined is the question of the choice of law rules that will apply. When an action is brought in tort, in the federal jurisdiction, where the resident of one State sues another State, the applicable choice of law rules will be in issue. A determination of this issue will have consequences on which State's statutory law applies and will therefore affect issues such as limitation of actions, assessment of damages, evidence, and procedure.

[30] The Judiciary Act becomes relevant. The High Court in The Commonwealth v Mewett[8] considered that s 64 and s 79 of the Act could operate in some circumstances to engage the relevant limitation legislation of the State in question. Further, a majority in the High Court in John Pfeiffer Pty Ltd v Rogerson[9] suggested that Musgrave v The Commonwealth[10] is authority for the proposition that, by virtue of either s 79 or s 80 of the Judiciary Act, "...the common law choice of law rules apply to an action in tort brought in federal jurisdiction."[11] The majority went on to say that:[12]

"Because ss 79 and 80 of the Judiciary Act both require reference to the statute law of the State or Territory in which the court concerned is exercising federal jurisdiction so far as that statute law is applicable, it follows that, subject to some qualifications...the statute law of the State or Territory in which federal jurisdiction is exercised will be applied. And if the common law rules for choice of law in a case which has some interstate element are applicable and require reference to the laws of the forum, the law which will be applied will depend upon where the court is sitting."

[32] Little discussion is required in terms of whether the law of the forum (lex fori) or the law of the place of commission of the tort (lex loci delicti) is applicable, given the High Court in Pfeiffer stated that "...the common law should now be developed so that the lex loci delicti is the governing law with respect to torts committed in Australia but which have an interstate element."[13]

Where is the lex loci delicti and where did the tort occur?

[33] The applicant's statement of claim against the second respondent makes determining the lex loci delicti relatively problematic. Authorities relating to products liability and defamation assist the Court to answer this question. In Dow Jones,[14] a defamation matter, the High Court said that, due to the difficulty in formulating a single rule of location to determine the place of commission of a tort, the question is:

"...'where in substance did the cause of action arise' (Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 4587 at 468; Voth [1990] HCA 55; (1990) 171 CLR 538 at 567)? In cases, like trespass or negligence, where some quality of the defendant's conduct is critical, it will usually be very important to look where the defendant acted, not to where the consequences of the conduct were felt (Voth [1990] HCA 55; (1990) 171 CLR 538 at 567)."

[34] First the relevant "act" of the defendant which gave rise to the cause of action must be identified.[15] The second and third respondents submit that the lex loci delicti is Queensland.

The applicant was exposed to the risk of being sexually molested when he was put in the presence of Mr Knight in the context of their pupil/teacher relationship. The duty was owed to the applicant as a student in Queensland. The cause of action arose when the applicant was a student in Queensland because this is when the first, second, and third respondents' conduct became significant. Therefore, the place of the tort was Queensland and so the law of Queensland applies.

In terms of the claim about the references given, those authorities where the tort was defamation indicate that the place of the tort is the place where the publication which results in the damage to reputation occurs.[16] It follows that the place the tort occurred in terms of the references was Queensland. The references were relied upon in Queensland.

[37] It seems clear that questions regarding the application of limitation periods, in this context, are regarded as issues relating to substance and not relating to procedure. The majority in John Pfeiffer Pty Ltd v Rogerson stated that:[17]

"...the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure...The application of any limitation period would, therefore, continue to be governed (as that legislation requires) by the lex loci delicti. Secondly, all questions about the kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti."

[38] Turning to procedural matters, s 79(1) of the Judiciary Act provides that:

"... the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory..."

[39] Therefore, on the basis of Pfeiffer v Rogerson, the procedural law to be applied is the law of the forum where the action is brought. In the circumstances, the applicable law of evidence will be Queensland law, and this conclusion is supported by the reasons of their Honours Gummow and Hayne JJ in Chief Executive of Customs v Labrador Liquor Wholesale Pty Ltd.[18]

Accordingly, Queensland law governs issues in this case to do with matters of substance and procedure. So, all issues which arise with respect to the admissibility of evidence, the limitation law to be applied, and the law with respect to the assessment of damages, are to be governed by Queensland law.

These conclusions reflect the submissions of Counsel for the second and third respondents. No contrary submissions were made.

[42] The third party proceedings against the State of South Australia as well as the Minister raise matters of federal law and come within federal jurisdiction.[19]

[43] The third party proceedings brought by the first respondent involve a contention that "...the State of South Australia is a 'tortfeasor who is...liable in respect of the same damage' for which the Anglican Church may be liable to [the applicant]." So, the third party proceedings require the Supreme Court of Queensland to determine the liability of the State of South Australia to a suit brought against it by a resident of another State. Therefore, the same issue within federal jurisdiction that arises in the proceedings brought by the applicant against the State of South Australia arise in third party proceedings. It follows that the third party proceedings involve issues of federal law.

[44] Turning then to the application for the extension of the limitation period.

Application for extension of the limitation period pursuant to s 31 of the Limitation of Actions Act 1974 (Qld)

[45] The applicant needs to obtain an extension of time within which to commence his action for damages for personal injuries because the limitation period in fact expired in 1989. The circumstances in which such an application can be granted are set out in s 31 of the Limitation of Actions Act 1974 (Qld) which provides as follows:

(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.

(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court -

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

(3) This section applies to an action whether or not the period of limitation for the action has expired -

(b) before an application is made under this section in respect of the right of action."

[46] The applicant bears the onus in relation to three matters:

(1) First, that a material fact of a decisive character was not within his means of knowledge until a date after commencement of the year last preceding the expiration of the period of limitation for his claim for personal injuries.

(2) Secondly, that there is a prima facie case of causative liability in the defendants (apart from the defence of the expiration of the limitation period).

(3) Thirdly, that there is no prejudice to the defendants obtaining a fair trial, notwithstanding the expiration of the limitation period and that the discretion ought to be exercised in favour of an extension.

[47] Accordingly, in relation to his claim against the first respondent the applicant must establish that a material fact of a decisive character was not within his means of knowledge at any time prior to 15 August 2001, being one year before the institution of proceedings against the first respondent.

[48] Furthermore, in order to obtain the extension of the limitation period in relation to his claim against the second, third, and fourth respondents, the applicant must also establish that a material fact of a decisive character was not within his means of knowledge at any time prior to 17 December 2006, which was one year before proceedings were actually instituted against those respondents in December 2007.

[49] Material facts are essentially "...those facts which must be proved in order to establish the negligent conduct upon which the cause of action in negligence is founded."[20]

Section 30 provides guidance as to the meaning of material facts:

(1) For the purposes of this section and sections 31, 32, 33 and 34 -

(a) the material facts relating to a right of action include the following -

(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

(ii) the identity of the person against whom the right of action lies;

(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv) the nature and extent of the personal injury so caused;

(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(b) material facts relating to a right 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 right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right 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 right of action;

(c) 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 know the fact at that time; and

(ii) as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time.

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."

The extension of the limitation period in respect of the first respondent

[51] It is clear that an applicant always has at least one year to commence proceedings from the time when his or her knowledge of the material facts coincides with the circumstances that a reasonable person with the applicant's knowledge would regard those facts as justifying and indicating that an action be brought in his own interests. It is accepted that the legislation requires a "step by step" approach in order to ascertain whether the facts of which the applicant was unaware were material facts and then to ascertain if they were of a decisive character. If that is established then the next step is to ascertain if those facts were within the means of knowledge of the applicant before the specified date.[21] It is also clearly established that the phrase "material fact of a decisive character" is to be interpreted as a composite phrase.

In State of Queensland v Stephenson[22] it was held:

"The better view is that the means of knowledge (in the sense given by para (c) of s 30(1)) of a material fact is insufficient of itself to propel the applicant outside s 31(2)(a). For circumstances to run against the making of a successful extension application, the material fact must have 'a decisive character'. Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say, as the plaintiffs submit in their written submissions, that in a sense none of the material facts relating to the applicant's right of action is of a decisive character until a reasonable person 'knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing' the features described in sub paras (i) and (ii) of s30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court."

[53] A material fact will be of a decisive character if and only if a reasonable person knowing those facts and having taken appropriate advice on those facts would regard them as showing that an action would have a reasonable prospect of success and result in an award of damages sufficient to justify bringing the action on the right of action and that the person ought, in their own interest, bring the action on the right of action.[23] Further, there is no requirement to take advice or ask questions if, in all the circumstances, it would not be reasonable to expect a reasonable person in the situation of the applicant to do so.[24] Facts known to a solicitor are not necessarily imputed to an applicant depending on the circumstances and whether the applicant has failed to maintain contact with the solicitor or whether there has been some other omission.

Turning then to the matters which must be established by the applicant. The applicant must show that the facts of which he was unaware were material facts and then he must establish that they were of a decisive character. If that is established then the next step is to ascertain if those facts were within the means of knowledge of the applicant before the specified date.[25]

With respect to the action against the first respondent the applicant is relying on two separate material facts:

(1) that he was not aware of the impact that the sexual abuse had on him until he read the newspaper articles in late 2001 and 2002 which made him realise the impact of the abuse on him;

(2) that it was March 2006 before he knew that the St Paul's Headmaster, Mr Case, had been specifically warned about Knight by the BBC Headmaster, Mr Thomson.

[56] In relation to the other respondents, namely the State of South Australia, the Minister of Education, and Mr Hopgood in his personal capacity, the applicant states that it was October 2007 before he discovered for the first time that Knight had actually been dismissed in May 1978 by the second respondent but that dismissal was subsequently rescinded by him and he was permitted to resign and then subsequently given a reference by Mr Hopgood, the fourth respondent, in his personal capacity.

The factual background to the submission that there is a "material fact of a decisive character"

An understanding of the impact of the abuse for the first time

[57] The applicant submits that it was not until there was media coverage of sexual abuse and the Anglican Church in late 2001 that he turned his mind to the abuse he suffered from Knight at school and it was in March 2002 that he became aware for the first time of the extent and nature of the injury caused to him. In particular it would appear that the first article about sexual abuse at an Anglican school in Toowoomba appeared on 13 December 2001 and in February 2002 there was an editorial in The Courier-Mail regarding the Anglican Church and its handling of the abuse allegations with a reference to Mr Case. The applicant states that it was then that he began to feel "...on edge, anxious and nervous" and he reported his abuse to Police in March 2002. He also consulted his solicitors and he states:[26]

"I was aware from media reporting in February that Shine Lawyers were representing St Pauls students who had been abused by a different teacher at the school. The purpose of me attending upon Shine was to tell my story which I thought might in some way go to assist the other victims and prevent Knight from inflicting further abuse.

...I did not give instructions for a claim to be brought on my behalf, this was because I didn't believe that I had a claim to bring. My attendance was merely to give a statement on the basis that it might somehow go to help the others."

[58] On 7 May 2002 the applicant executed a retainer with his solicitors and in July attended to provide an account of the sexual abuse he had encountered at St Paul's. His solicitor Mr Singh in his affidavit swears the following:[27]

"Although the Plaintiff professed to be suffering from an injury, which he attributed to past incidents of abuse, it was clear to me that any damages claim that he might have against the Defendant was very much 'out of time'. Furthermore, there was an absence of evidence from the Plaintiff to prove that the Defendant, at a point in time prior to the Plaintiff's own abuse, had reason to suspect that its students were at risk whilst in the company of Knight. Consequently I was aware that on the evidence as it currently stood the prospects of proving that the Defendant was vicariously liable for Knights acts or omissions were remote."

The claim was then filed against the first respondent on 15 August 2002 and Mr Singh states that the proceedings were issued out of an abundance of caution to prevent further time from running against a possible claim.

[59] The applicant's drug use increased throughout 2002 and by June 2003 he was unable to continue working. He submits, therefore, that he instituted a claim within 12 months of the impact of the abuse coming within his means of knowledge. That is within 12 months of the first manifestations in late 2001 or early 2002 of the psychological symptoms of the sexual abuse.

[60] The applicant gave evidence at the hearing. The applicant's evidence was that in second year medicine in 1988 during a psychology lecture they were told that psychological well-being could be affected by traumatic life events including sexual violence. After the lecture he had discussed with both his mother and his brother his relationship with Knight. He told them that he did not think that Knight's abuse had affected him.

[61] There is some evidence, therefore, that the applicant had turned his mind to the issue of sexual abuse and its impact on him during the year 1988. There is also evidence that by the end of that year his life had become troubled and he broke up with his long-term girlfriend in late 1988. In 1989 he began to smoke marijuana and to fail exams and course work. He subsequently failed all of third year medicine in 1989 but successfully repeated third year in 1990. There is evidence that he had a psychotic episode in 1990 as he heard voices, had bizarre beliefs, and believed he had magical powers.[28] Dr Danesi's report of 7 July 2003 indicates that, "...[a]t the age of 22 he had a depressive episode for a year."[29] In his report dated 26 September 2005, Dr Steinberg also stated that he considered that the applicant "...has had symptoms of posttraumatic stress disorder at least since he left school approximately 1988. I believe the symptoms of posttraumatic stress disorder were evident at that time."[30]

The question is whether these facts were material facts of a decisive character at that time or whether they only assumed this character in 2001-2002. The first respondent submits that these material facts were of a decisive character and were in fact known to the applicant by 1988.

Subsection 30(1)(b)(i) provides that material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken appropriate advice would regard those facts as showing that a right of action would have a reasonable prospect of success and result in an award of damages sufficient to justify the action. Subsection 30(1)(b)(ii) then provides that the person ought, in their own interest and taking their circumstances into account, bring an action. As was stated in State of Queensland v Stephenson:[31]

"The practical result of this construction is that an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a)) coincides with the circumstance that a reasonable person with the applicant's knowledge would regard the facts as justifying and mandating that an action be brought in the applicant's own interests..."

[64] The applicant's argument is that it was not until 2001 or 2002 that he realised the extent to which the sexual abuse had affected him. The realisation that the sexual abuse is having a psychological effect or is having a greater effect than one previously realised is of course a material fact within the provisions of s 30(1)(a). The question is whether it is a material fact of a decisive character pursuant to s 30(1)(b). It will assume this character if a reasonable person knowing those facts and having taken appropriate advice would regard those facts as showing that a cause of action would have a reasonable prospect of success and that the person ought in their own interests and taking their circumstances into account, bring an action. Clearly, this knowledge of psychological impact is a material fact of a decisive character within the meaning of the section because such knowledge means that you have an injury and this was caused by the actions of another person. The next question is whether this was not within the applicant's means of knowledge until 2001 or 2002.

[65] A material fact of a decisive character will not be within a person's means of knowledge at a particular time if but only if the person does not know the fact at that time and as far as the fact is able to be found out by the person the person has taken all reasonable steps to find out the fact before that time. The question is essentially whether it was within his means of knowledge before 2001 or 2002 that the sexual abuse was causing him psychological consequences such that he had a cause of action. As was explained by Keane JA in NF v State of Queensland:[32]

"Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant."

[66] In the present case there were some facts in evidence by 1989 or early 1990, when he repeated third year, that the applicant was experiencing some psychological symptoms. There was evidence of depression, exam failure, relationship breakdown, and drug use. He knew he had been sexually abused and he knew by third year that his life was disintegrating and he needed to take a break. He knew therefore that his psychological well being was in fact being affected. The question is whether it was actually within his means of knowledge that the sexual abuse at the hands of Knight was the cause.

[67] As was stated in Pizer v Ansett Australia Ltd,[33] the question of whether a person has taken all reasonable steps to ascertain the nature and extent of the injury depends on the nature of the warning signs of the injury and the extent to which other facts call for a prudent enquiry to protect one's own health and legal rights. In the applicant's case there were some warning signs. He was experiencing some symptoms within 12 months of his psychology lecture and he not only failed third year but subsequently took a year off in 1991. Should these factors have made him aware of the impact the abuse was going to have on his life such that he should have instituted action at that point in time? Failing a year, experiencing a relationship breakdown, and experimenting with drugs are not uncommon events in a student's life. I consider that it was understandable that the applicant did not necessarily attribute these events to his sexual abuse.

Even if he did wonder if the abuse was the cause of these difficulties there was nothing at that point in time to indicate that he would suffer any long-term effects from the abuse. I do not consider that at that point in time he knew that the abuse would have long term effects because he managed to get his condition under control around 1991.

Furthermore, even if a reasonable person in his position at that time would have suspected that abuse was the cause, a reasonable person would also have understood that by commencing an action then they would have to re-live the abuse over a period of time while the action was on foot. They would also be subject to the stress associated with potential litigation, and with potential adverse consequences on their health at the time. In 1991 he appeared to be recovering. The very thing which occurred in 2002-2003 shows why, in about 1991, it was not in the applicant's own interest, and taking into account his personal circumstances, to bring a cause of action. Instead, at that time he chose to try to manage his condition and establish himself in a career for life which he did with some success.

The question of whether a person has taken all reasonable steps is to be determined from the point of view of a reasonable person, with the knowledge and experience of the applicant. At the time the warning signs began to manifest, the applicant was a medical student with knowledge of the consequences of sexual abuse but he had turned his mind to the question and considered he had not been significantly affected. In fact, he successfully got on with his life. He graduated, had a successful marriage, and a medical practice which was financially successful.

I accept the evidence of the applicant that it was not until the media articles in late 2001 and early 2002 that his abuse at the hands of Knight began to weigh on his mind and trouble him in a significant way. It was at that time he mentioned these matters to a medical practitioner and he sought counselling and then treatment from a psychiatrist. I accept that it was really not until 2002-2003 that he was diagnosed with a psychiatric condition and that he knew his condition was having significant affects on his relationship with his wife and his ability to work.

I do not consider that these material facts of a decisive character were within his means of knowledge before 2002 or that was within his means of knowledge that there was a worthwhile cause of action prior to that time.

As was stated in Brisbane South Regional Health Authority v Taylor:[34]

"But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."

[74] I consider that a reasonable person in the applicant's position would not have made enquiries to protect his health and legal rights by 1991 when he had some manifestation of the warning signs. As Macrossan J, as he then was, said in Moriarty v Sunbeam Corporation Limited:[35]

"In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it.

He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s.30(b) comes down to: Taggart v The Workers' Compensation Board of Queensland [1983] Qd.R. 19, 23, 24 and Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 C.L.R. 234, 251 per Deane J."

[75] I do not consider, therefore, that this material fact of a decisive character was within the applicant's means of knowledge before August 2001.

The discovery of the warning by the Headmaster of BBC to the Headmaster of St Paul's

[76] Turning then to the other material fact which the applicant relies upon which is discovery in March 2006 of the warning from one headmaster to the other. The solicitor for the applicant states that, whilst a claim was filed in 2002, this was done as a matter of routine and there was no real evidence to support the claim against the first respondent until 11 August 2005, when he learned, as a result of press reports, that Knight had been the subject of previous complaints. After investigations, he took a statement in March 2006 from the Headmaster of BBC, the school which had previously employed Knight and learned that the Headmaster of St Paul's had been warned prior to employing Knight that he had been the subject of complaints at BBC. In August 2006, the solicitor then received, during the course of disclosure from the first defendant, a copy of a statement from the Headmaster of BBC that he had been contacted prior to Knight's appointment. Further disclosure in February 2007 revealed a statement from the BBC headmaster made in 2002 indicating that he warned the St Paul's headmaster at the time of the dangers of employing Knight at the time he was engaged. This statement provides:

"15. Mr Case said that Knight had applied for a position at St Paul's. He asked if I could give him the background of why he had left BBC.

16. There was a code of conduct between headmasters which required that we should be honest with each other in giving references about employees.

17. At the time of that telephone conversation the details of the allegations against Knight were clear in my mind. I made it clear to Mr Case that Knight had been discharged from BBC on the grounds of irregular conduct in his attitude towards the boys.

18. I definitely gave Mr Case reasons for Knight's discharge. The reasons were probably given in more general terms than in particular detail.

19. I told Mr Case that Knight had made no attempt to defend himself.

20. I heard later that St Paul's had appointed Knight. I recall that I was surprised at Mr Case's decision."

[77] The principal allegations against the first respondent are that the Diocese negligently hired Knight, failed to carry out proper supervision of Knight, failed to take proper care in selecting music teachers to teach the applicant, as well as permitting the applicant to undergo tuition when it ought to have known that such action was likely to result in injury.

[78] The real question is whether it was within the applicant's means of knowledge that he had a worthwhile cause of action against the school as opposed to the perpetrator of the abuse prior to the filing of the claim. The question is whether it was within his means of knowledge that the school could in any way be held responsible for the actions of the teacher prior to 2006. The applicant says he did not have a good case against the school for vicarious liability until he knew of the warning by the BBC headmaster to the St Paul's headmaster which did not become fully revealed until August 2006 when a copy of the 2002 statement was obtained. The applicant submits that it was only at that point that he, or a reasonable person in his position, would be able to believe that he had a cause of action worth putting on the basis that it could succeed. The applicant submits that before this information became available he did not have satisfactory evidence that anyone knew of Knight's conduct.

[79] Accordingly, the applicant submits that the material facts of a decisive character were not within his means of knowledge until his solicitors conducted their investigations and received disclosure of the following facts:

1. That the first defendant, by the St Paul's headmaster, had been informed that complaints had been previously made about Knight whilst he was employed at another school;

2. The identity of the other school from which the complaints emerged, namely BBC; and

3. That the St Paul's headmaster confirmed he had been contacted by the BBC headmaster about Knight before he decided to employ him.

[80] It is clear that Knight conducted tuition alone, for long periods, in soundproof rooms without supervision. The allegations against the first respondent are that it failed to take proper care in selecting persons to carry out music tuition, that it failed to properly supervise Knight, and that it permitted the applicant to undergo music tuition when it knew, or ought to have known, that such action would be likely to result in injury to the applicant. There is some evidence that both employees and students of the school had made derogatory comments indicating sexual activity between the applicant and Knight. The applicant also gave evidence that he had told the headmaster of the abuse by Knight but that he had been rebuked by the headmaster and told that his scholarship and that of his brother could be in jeopardy. There is also evidence that in January 2005 the applicant told the Medical Board that he believed his claim would settle out of court. I do not think that such a statement however indicates that he in fact considered that he actually had a viable cause of action against the school.

[81] I do not consider that these facts would have acquired a decisive character prior to March 2006 because a reasonable person knowing those facts and having taken appropriate advice would not have considered that he had a right of action against the school with reasonable prospects of success before March 2006.

[82] I consider that until the facts were known of the nature of the conversation between the two headmasters and knowledge was obtained of the specific warning given to Mr Case the prospects of success in proving that the first respondent was liable, directly or vicariously, for Knight's actions were not strong. It is clear that these material facts were only discovered through the work of the applicant's solicitors and, therefore, were not within his means of knowledge.

[83] I consider that because these facts go to the issue of negligence or a breach of duty, as well as the question of the identity of the person against whom the action lies, it is a material fact of a decisive character within the meaning of the section.

[84] Whilst the applicant commenced his action before material facts of a decisive character were within his means of knowledge, this is not significant as the statute is not expressed in such a way as to exclude such a case from relief.[36] In State of Queensland v Stephenson,[37] it was expressly stated that, whilst on the face of it s 31 was concerned with an extension before the institution of an action, the section may also be utilised where an action has already been instituted. I consider that Mr Singh's affidavit explains why the proceedings were instituted before March 2006 but in the circumstances I consider that a material fact of a decisive character was not within his means of knowledge prior to that time.

Accordingly, I consider that the applicant has established that a material fact of a decisive character was not within his means of knowledge until March 2006.

As Macrossan CJ said in Wood v Glaxo Australia Pty Ltd:[38]

"The policy detectable in this legislation does not suggest that a potential plaintiff with the limitation period running against him must necessarily always commence his proceedings when he has no more than a hint of the existence of a necessary link in his chain of proof but, of course, if being at that point he delays he will do so at his peril because he will only subsequently save himself if he can persuade a judge that he did not know enough or would not, even if he had undertaken appropriate enquiries, have known enough to justify commencing proceedings at an earlier time."

[87] I would therefore grant an extension of the limitation period pursuant to s 31 in respect of the first respondent.

[88] Turning then to the extension of the limitation period in respect of the second, third and fourth respondents.

The extension issues in relation to the second, third, and fourth respondents

[89] The applicant's case against the second respondent is that the Minister of Education for the State of South Australia had power to appoint and dismiss teachers and was agent for the third respondent, the State of South Australia. The applicant also submits that the fourth respondent, Mr Hopgood, was also an agent or servant of the State of South Australia. The case against these respondents, therefore, is that there was sufficient cause for disciplinary action against Knight and he was dismissed by the fourth respondent acting on behalf of the second and third respondents, effective from 31 May 1978. On 14 June 1978, this Notice of Dismissal was rescinded and, instead, Knight's resignation was accepted from 31 May 1978.

[90] On 13 December 1978, the fourth respondent wrote a reference for Knight on a South Australian Parliamentary letterhead recommending him for music conducting and tuition. The letter stated:[39]

"...Mr. Gregory Knight has been Music Director of the Noarlunga City Concert Band for a little over 12 months. During most of that time I have occupied the position of President of the Band. I can, therefore, testify to his ability, enthusiasm and qualities of leadership.

The Band is composed of players who are amateurs and who are involved in a recreational sense. There is a considerably large range from teenagers to septuagenarians and also varying expectations as to the nature of the music which should be played, how competitive the Band should become and the sort of 'jobs' that it should undertake. Welding such a divers collection of musical and semi-musical humanity into any sort of a competent aggregation, is therefore, no mean feat and this Mr. Knight has been able to achieve..."

[91] This reference, together with a reference from a headmaster at a school in South Australia at which Knight had previously taught, were in the possession of the headmaster at St Paul's at the time Knight was employed. When Knight applied for registration as a teacher in Queensland he supplied his South Australian registration issued in December 1978.

[92] It is alleged that the second and third respondents breached their duty by rescinding Knight's dismissal and failing to ensure his dismissal was endorsed on his record, and that the circumstances of his dismissal were known to principals where he was engaged. It is alleged that this duty was breached in circumstances where the respondents knew that, by rescinding his dismissal, he would be able to seek employment elsewhere as a teacher by relying on his South Australian registration and that he might obtain references from principals with whom he had worked and who were unaware of the circumstances of his dismissal.

[93] It is also alleged that the fourth respondent breached his duty by providing him with a reference in circumstances where it was foreseeable that he would rely upon the reference to gain employment. The allegation is that when the fourth respondent wrote the reference he specifically referred to his suitability in dealing with teenagers.

[94] The solicitor for the applicant states that he was unaware of these facts until he received a letter from the solicitors for the first defendant on 6 February 2007 which made him aware of the circumstances in South Australia for the first time. The applicant states that those matters were material facts of a decisive character which were not within his means of knowledge until the first defendant's solicitors brought them to the attention of his solicitors.

[95] Furthermore, the applicant submits that these factors go to the fact of the occurrence of negligence or breach of duty, as well as the identity of the person, as required by s 30.

[96] I consider that the evidence indicates that these references did not become known to the applicant until February 2007 and that they were material facts as they made him aware for the first time of the involvement of the second, third, and fourth respondents.

[97] The question is whether they were material facts of a decisive character. Section 30(1)(b) provides that 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 appropriate advice, would regard those facts as showing the action would have a reasonable prospect of success. The second and third respondents submit that the material facts never acquired the characteristic of being of a decisive character because there was never a cause of action with a reasonable prospect of success.

[98] Furthermore, it is submitted that the applicant cannot establish a right of action against the second and third respondents within the meaning of s 31(2)(b), which requires that he establish that there is a prima facie case of liability. Whilst the applicant does not need to fully prove his case, there must be evidence that the applicant has a right of action.

[99] The question, therefore, that needs to be examined is whether there is a prima facie case against the second, third, and fourth respondents.

Prima facie case of causative liability against the respondents apart from the defence founded upon the expiration of the limitation period

[100] The second respondent under the Education Act 1972 (SA) is a statutory corporation, and the third respondent is the State of South Australia. In Crouch v Commissioner for Railways[40] it was held that the statutory corporation was the State, for the purposes of proceedings against it. The fourth defendant is Mr Hopgood, who was a member of the South Australian Parliament as the Member for Baudin. He also happened to be the Minister of Education at the relevant time. The applicant submits that the second respondent was an agent of the third defendant and that the fourth respondent was a servant or agent of the third defendant.

In order to obtain an extension of time in relation to these respondents therefore, the applicant has the onus of establishing that evidence exists and can be adduced at trial which establishes that he has a cause of action against them. It is clearly established by the authorities that the applicant does not have to fully prove his case and all that is required is some evidence from which "...the Court could form an opinion that the applicant has a right of action."[41] As Macrossan CJ stated in Wood v Glaxo Australia Pty Ltd, applicants seeking an extension of limitation period are not intended to be placed in a position where they have to establish an entitlement to recover twice. The first being at the hearing of the application and then again at trial:[42]

"...Although the requirements of the legislation must be complied with if an extension is to be granted, the extent to which an applicant must show a case on the hearing of the application to extend time will frequently depend on the impression on the judge's mind of the material which the applicant presents or the existence of which he demonstrates or points to. It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions. A judge may harbour a feeling that there is a strong chance that particular applicants will fail at trial but, in my opinion, he should not act on the basis of this impression both because that is a question reserved for another occasion and because he cannot know and should not insist on being able to see in all of its ramifications the full strength of the case which will eventually be presented at trial."

[102] In relation to the second, third and fourth respondents, the applicant relies on Crimmins v Stevedoring Industry Finance Committee[43] to support a finding that there was a breach of duty by a statutory authority. In that decision McHugh J stated:

"[93] In my opinion, therefore, in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:

1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
3. Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
5. Would such a duty impose liability with respect to the defendant's exercise of 'core policy-making' or 'quasi-legislative' functions? If yes then there is no duty
6. Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.

[94] If the first four questions are answered in the affirmative, and the last two in the negative, it would ordinarily be correct in principle to impose a duty of care on the statutory authority."

[103] The applicant submits that there is evidence that there was improper conduct by Knight towards students in South Australia, and then subsequently against him, as a student in Queensland, and that in each case, Knight was a teacher and registered as such. It is alleged that the second and third respondents breached their duty by rescinding Knight's dismissal, failing to ensure his resignation was endorsed to indicate he was dismissed, failing to inform previous principals of the reasons for Knight's dismissal, and failing to ensure Knight was prevented from teaching at St Paul's.

[104] The basis of the liability of the second and third respondents is essentially that, at the time of Knight's application for registration as a teacher in Queensland, he was held out by the second and third respondents as being registered as a teacher in South Australia, despite having been found guilty of acts warranting his dismissal. When his application for registration was then considered, his South Australian registration and the references were relied upon by the Board. The applicant states that this is sufficient to indicate a prima facie case against the second and third respondents.

[105] The applicant submits that the second and third respondents breached their duty because they knew that by rescinding the dismissal he would be able to seek employment elsewhere as a teacher, relying on his South Australian teaching qualifications, and that he might obtain references from other government schools in South Australia if they were not informed of the circumstances of his dismissal.

[106] The evidence the applicant will rely upon at trial in relation to this breach of duty has been foreshadowed in this application. In particular, it appears that the applicant will rely on the evidence of Mr Neville Fry,[44] the executive officer of the Queensland Board of Teacher Education. His evidence is that in 1980 South Australia and Queensland were the only States that had a Teacher Registration System and that the Queensland Teaching Registration Board had a close working relationship with the Registration Board in South Australia. His evidence is that generally speaking the focus of the Board was whether the teacher had the requisite qualifications for registration in Queensland. He states that Knight's registration in South Australia was relevant in determining his suitability for registration in Queensland, particularly as he had not completed an accredited course of teacher education in Queensland. The applicant states that the evidence is that if an applicant for registration lacked the qualifications for registration, then the Queensland Board would consider other information, such as references and the status of the interstate registration, to determine suitability for Queensland registration. Essentially, they submit that this registration was then relevant to the decision by the Headmaster of St Paul's to employ Knight.

The applicant has, therefore, pointed to the fact that there is some evidence that the South Australian registration and the references would have been considered by the Board of Teacher Education Queensland in registering Knight and by the Headmaster of St Paul's in employing him. In relation to this evidence, it is clear that this evidence is from a current employee of the Board about what he considers the Board practice would have been in 1980 and 1981. There is no direct evidence that the Queensland Board did in fact rely on the references or the fact of South Australian registration. There is no evidence from a member of the Board or evidence as to what they actually considered. The Application Form[45] and the correspondence between Knight and the Board are in evidence. However, that form does not ask if the candidate was registered in another State. That form seeks information about teaching experience and formal qualifications rather than previous registration elsewhere. It would seem that Knight was not initially registered in Queensland because he did not have the formal tertiary qualifications.

Neither is there evidence from the Headmaster of St Paul's that he actually relied on the South Australian registration or the references, although it would appear they are on file. Mr Case, the headmaster, has provided statements and he does not in any way state that he relied on the references, that he read them, or was even conscious of them. In fact, his evidence is that "...there were no other reasonable candidates for the position of Head of Music [in fact, virtually the only Music teacher] at St Pauls."[46] Mr Case does refer to his conversation with the Headmaster of BBC and stated, "...I believe that I was being advised to be cautious in appointing him, but what I was told did not constitute grounds for not appointing him to the position applied for."

Accordingly, there may be evidence that Knight's registration in South Australia was still current and that the references were on the file at both St Paul's and the Queensland Teachers Registration. There is, however, a question as to whether they were in fact relied upon by the Board or the headmaster in the decisions they came to in deciding to register and employ Knight. There is no direct evidence that they were relied upon.

The essential question is whether the State of South Australia owed a duty of care to the pupils of schools in other States. The essential issue is whether there is a prima facie case that the respondents owed a duty of care to the applicant. It is clear that in this application an applicant is not required to fully prove his case but must establish that evidence does exist that he can produce at trial which goes to the liability of the respondents. Whilst the actual evidence need not be produced at the hearing for an extension of time it is clear that it is: [47]

"not right for the Court on such an application to imagine circumstances or put together a case which is not justified by evidence or apparent evidence. Guesses (as distinct from proper inferences) are no more permissible on these applications than they are upon a trial."

[111] Is there evidence of a prima facie case? It seems clear that the mere fact that a public body is invested with a function or power is not sufficient to impose a duty of care on that body.[48] In relation to statutory authorities the question of the extent of the duty of care is dependent on the nature of the relationship. In Graham Barclays Oysters Pty Ltd v Ryan,[49] which related to the question whether a local council had a duty of care to consumers of oysters to exercise its statutory powers to undertake regular water testing so as to avoid contamination of oysters, it was held that neither the State nor the Council owed a duty of care to consumers. It was also held that at no stage did the council exercise control over the risk of the harm that eventuated and that control was not established by noting the council's powers in respect of sources of the contamination. However as McHugh J stated:[50]

"Ordinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk. And public authorities are in no different position. A public authority has no duty to take reasonable care to protect other persons merely because the legislature has invested it with a power whose exercise could prevent harm to those persons. Thus, in most cases, a public authority will not be in breach of a common law duty by failing to exercise a discretionary power that is vested in it for the benefit of the general public. But if the authority has used its powers to intervene in a field of activity and increased the risk of harm to persons, it will ordinarily come under a duty of care. So also, if it knows or ought to know that a member of the public relies on it to exercise its power to protect his or her interests, the common law may impose a duty of care on the authority. If the authority comes under a duty of care, the failure of the authority to exercise a discretionary statutory power may give rise to a breach of the common law duty of care. But subject to these exceptions, ordinarily the common law will not impose an affirmative duty of care on an authority which would have the result that a failure to exercise a statutory power constitutes a breach of that duty.

82 The likelihood of the common law imposing an affirmative duty of care whose content may require the exercise of a statutory power increases where the power is invested to protect the community from a particular risk and the authority is aware of a specific risk to a specific individual. If the legislature has invested the power for the purpose of protecting the community, it obviously intends that the power should be exercised in appropriate circumstances. If the authority is aware of a situation that calls for the protection of an individual from a particular risk, the common law may impose a duty of care. In that situation, failure to exercise the power may constitute negligence. This seems the best explanation of Pyrenees Shire Council v Day where the majority of the Court held that a Council which knew of a fire risk owed a duty of care and breached it by not exercising its powers. Kirby J said:

'The statutory power in question is not simply another of the multitude of powers conferred upon local authorities such as the Shire. It is a power addressed to the special risk of fire which, of its nature, can imperil identifiable life and property. Therefore, the nature of the power enlivens particular attention to its exercise and to the proper performance of a decision whether to give effect to it or not.'" (footnotes omitted)

[112] As set out in Barclays Oysters Case, in most cases a public authority will not be in breach of a common law duty by failing to exercise a discretionary power that is vested in it for the benefit of the general public unless it is a power which addresses a particular risk. It is clear that to answer such a question regard must be had to the relevant Act. A preliminary examination of the Education Act 1972 (SA) indicates that the Act is an Act regulating employment and registration of teachers in South Australia. Section 15 provides that the Minister appoints teachers to be officers in the teaching service in government schools and that no officer appointed on a permanent basis shall be dismissed or retired from the service except in accordance with the Act. The Minister has the power to dismiss teachers.

[113] Whilst the Act establishes an obligation to be registered and establishes a scheme of registration for all teachers, the Minister of Education does not register the teachers or control registration. Section 65 of the Act provides that the Board may on its own motion or upon application by the registrar conduct its own inquiry. Section 65 sets out the Board's powers in relation to the cancellation of a teacher's registration and s 65(2) provides:

"If after conducting an inquiry under subsection (1) the Board is satisfied that the registered teacher -

b) is guilty of any disgraceful or improper conduct; or

d) is subject to a serious mental or physical incapacity by virtue of which he is unable properly to exercise and discharge the functions and duties of a registered teacher.

[114] The Minister had no power in relation to the cancellation of Knight's registration as that was the function of the Teachers Registration Board. He did, however, have the power to dismiss Knight from the teaching service and presumably could have referred the matter to the registrar of the Board for further action. The question is whether the intention of the Act was to impose a duty on the Minister to dismiss Knight and ensure his record reflected this fact including the cancellation of his registration as a teacher. Counsel for the second and third respondents argues that there is nothing in the legislation which indicates the intention to impose a positive obligation to act and that the Act would appear to have been passed for the purpose of making proper provision for primary and secondary education in the State of South Australia. There are no objects which express an intention to create rights in parties or an intention that holders of office have duties imposed on them in the interests of the public.

[115] The Act regulates employment of teachers in South Australia. The duty alleged by the applicant is that the State of South Australia owed a duty of care to pupils of schools in other States. Counsel for the second and third respondents submit that the allegations against the second and third respondents are general allegations of negligence and no breach of a statutory duty or an obligation to act is pleaded. The applicant asserts that there is a duty and then relies on foreseeability as the basis of that duty.

[116] It is clear that mere foreseeability of harm by itself is not sufficient to establish liability and in Sullivan v Moody[51] it was stated:

"The argument was conducted upon the basis that it was foreseeable that harm of the kind allegedly suffered by the appellants might result from want of care on the part of those who investigated the possibility that the children had been sexually abused. But the fact that it is foreseeable, in the sense of being a real and not a far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms."

[117] In the recent decision of X v South Australia (No3),[52] where the Parole Board had released a convicted paedophile who subsequently sexually assaulted a nine year-old boy, it was held that there was no relevant duty of care owed. Debelle J stated:[53]

"Reasonable foreseeability of the harm suffered by the plaintiff is relevant but the limitations of this criterion must be noticed. While reasonable foreseeability of harm of the kind suffered by the plaintiff is a necessary condition for the existence of the duty of care, it is not in itself sufficient to establish the duty:...A defendant will only be liable in negligence for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff in circumstances where the law imposes a duty to take care."

[118] With respect to the claim against the fourth respondent it is alleged that he breached his duty by writing the reference for Knight in circumstances where it was foreseeable that Knight would rely on the reference to obtain employment at another school.

[119] In relation to the fourth respondent no authority is cited to support the proposition that as the Member for Baudin the fourth respondent was an agent of the State of South Australia. Nor is there any authority for the proposition that the State of South Australia would be vicariously liable for a reference written by a member of the South Australian Parliament.

[120] In relation to liability for references Spring v Guardian Assurance Plc[54] provides that liability with respect to references is limited to the intended recipients of such a reference rather than an indefinite number of potential recipients. It is necessary to show both foreseeability and proximity. There are obviously difficulties in this case in relation to the size of the class to whom the duty is alleged to have been owed. This also raises issues in relation to the issue of proximity.

Counsel for the second and third respondents submits that not only is there a lack of proximity or special relationship but that the alleged duty in relation to both the reference and in allowing Knight to resign gives rise to indeterminacy of liability. "...The number of potential employers to whom Knight may have applied over the subsequent decades is incalculable as is the number of potential students."[55] Furthermore, it would seem neither the reference of Mr Wilkinson nor that provided by the fourth respondent was addressed to nor confined to the first respondent. Clearly there are difficulties in relation to proximity and indeterminacy of the class.

The second and third respondents rely on the decisions in cases such as Agar v Hyde[56] to argue that there was no duty owed by them to the applicant and submits that the High Court has been at pains not to permit the extension of the obligation of a duty of care with respect to physical harm in circumstances where there is no pre-existing relationship between the injured person and the alleged tortfeasor and where to hold the tortfeasor liable would be to expose persons to a new and indeterminate category of liability.

In essence at trial the first respondent will be denying causation on the basis that it acted on the various references provided and the fact that Knight was registered as a teacher in Queensland and that such registration was gained, in part at least, from current registration in South Australia. Therefore, the first respondent will be alleging that the fault of another party caused the applicant's injuries. The second and third respondents, however, submit that the harm suffered by the applicant was a direct result of the criminal conduct of a third party and that the applicant is not left without a remedy against those primarily responsible, namely, Knight and the first respondent.

[124] In relation to the claim by the applicant under the Trade Practices Act 1974 (Cth) for misleading and deceptive conduct it would seem clear that neither the second, third, nor the fourth respondents are trading or financial corporations within the terms of that Act.

[125] However, the ultimate issue of liability is not the task I am charged with as that is a question for the trial judge. The question I need to be satisfied of is whether there is evidence of prima facie causative liability and whether the applicant has demonstrated the availability of evidence which shows, prima facie, that there is a probability that his psychological suffering was caused by the failure of the respondents to dismiss Knight so that he was able to continue teaching and thereby sexually abuse the applicant.

[126] In Sullivan v Moody the High Court stated that different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care and that it is the relevant problem which becomes the focus of judicial attention at trial to determine whether such a duty exists:[57]

"Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle."

[127] As Warren CJ held in the 2008 Victorian Court of Appeal decision Tania Kirkland-Veenstra v David Stuart, there is no 'check list' or formula for determining whether a duty exists but rather:[58]

"...it is a question to be determined in the context of the factual matrix. Particular features will be weighted more or less heavily than others in a given situation. A weighing, and assessment, of each of the various elements that are particular to the situation is to be made before the issue can be determined. These elements may include: control, vulnerability, knowledge, coherence of the law and determinacy of the person or class of persons at risk will be relevant. There must also be consideration of any potential conflict of duties and public policy issues."

[128] Clearly then, in determining whether a relevant duty exists so much will depend on the actual factual matrix and the weighing and assessment of the many relevant considerations. That detailed task is a matter for the trial judge and the extensive judicial evaluation referred to is an evaluation for the trial judge and that is not my task. The question I must answer is whether there is a prima facie case of causative liability as against the second, third, and fourth respondents and all that needs to be shown is that there is an arguable case. I am not called upon to undertake an extensive examination of the facts or the law or to finally determine whether a duty of care is owed but rather whether there is evidence of a cause of action.

[129] Clearly, a detailed examination of the Education Act 1972 (SA) is a matter for trial and will be the focus of considerable argument with respect to the duty of care owed. I consider, however, that there is a sufficiently arguable prima facie case that in exercising their powers under that Act the second and third respondents owed a duty of care to a pupil who might suffer abuse as a result of an act or omission on their part. Moreover, the applicant submits that this was not a mere failure or omission to exercise a power but rather those respondents purported to exercise their powers and that relying on the decision Council of the Shire of Sutherland v Heyman[59] a duty of care is more likely to be found. Similarly, the applicant submits that when the fourth respondent gave the reference with the specific knowledge that he had of Knight's behaviour it is also arguable that the fourth defendant owed a duty of care.

In examining whether there is evidence to establish a right of action I consider that the applicant has established that there is some evidence to establish a right of action and that it is arguable that a duty as alleged exits. In particular, when examining the six questions posed in Crimmins in relation to identifying in a novel case when a duty of care is owed, I am satisfied that there is an arguable case of liability based on the criteria set out in that decision. There was foreseeability of harm and there were positive acts on the part of the respondents which created or increased the risk of injury to pupils who would be taught by Knight irrespective of where he taught them. There was also a vulnerable class, namely, pupils and arguably the respondents should have known the risk of harm to that specific class. Arguably, there was also a power to protect a specific class from harm. Knight was allowed to continue to hold himself out as a registered teacher and he was given references. As Warren CJ stated in Tania Kirkland-Veenstra v David Stuart:[60]

"Whether a duty of care exists in a novel situation is a question of law but is determined by reference to the factual context. Tests for foreseeability, proximity, incremental development by analogy and salient features fall to be considered.

The High Court has expressed the approach as one considering 'salient features' of the factual scenario and looking to the 'totality of the relationship'. There is no single, formulaic test to be applied. Consideration should be given to all relevant factors, such as: the reasonable foreseeability of the risk of harm, the defendant's knowledge of the risk, the control exercisable by the defendant over the situation and the vulnerability of the person or persons at risk. In addition, analogous situations in the authorities provide guidance. The factual similarity or difference between decided cases and the case at hand enable incremental development."

[131] Because there is no single formulaic test to be applied and because all the relevant factors need to be considered those matters should be determined by the trial judge. In this regard it is important that a plaintiff should not be denied the fundamental right to have a court decide the case on "...on the entirety of the evidence and argument."[61]

Accordingly I consider that the applicant has satisfied the requirements in s 31 of the Limitation of Actions Act 1974 (Qld) to allow an extension of the limitation period in respect of the second, third, and fourth respondents.

The limitation period in respect of those respondents is therefore extended until 18 December 2006.

The question of prejudice to the defendants obtaining a fair trial

[134] The applicant also bears the onus of proof that commencement of the action against the respondents will not result in significant prejudice to them. It has been held that a material consideration, and sometimes the most important consideration, is whether because of the time that has elapsed, a fair trial can be had.[62] The applicant has the positive burden of establishing that the justice of the case requires the extension.

Whilst the onus is on the applicant to demonstrate that a fair trial can be had, the applicant submits that the respondents should point to identify specific matters of prejudice, and relies on the decision in Limpus v State of Queensland,[63] where Jerrard JA held that, whilst there was an onus on an applicant to show that the justice of a particular case requires an extension of time, where that onus is unlikely to be satisfied because with the passage of time the respondent may not be able to fairly defend the proceedings, then there is:

"...an evidential onus on a potential defendant to identify the prejudice to it of which the defendant is aware and which makes a fair trial no longer possible or creates a significant chance of that result."

[136] In this regard, Counsel for the second and third respondents pointed to the fact that some crucial and relevant personnel in the respective teacher registration boards cannot be found. Furthermore, "...because the boards are different and the registering authorities are different and because people have retired and long gone ...they don't have a clear recollection."[64] Counsel for the second and third respondents submit that "...a 30 year delay leads to the inevitable inference of prejudice because of dimmed recollections." It is clear however that the files of the Queensland Board are in evidence and the weight to be given to such documents and the evidence of the witnesses is a matter for the trial judge having heard all of the evidence presented at the trial.

The South Australian investigations identified two former State Government employees who were involved in the decision to rescind the dismissal of Knight in 1978 namely Colin Laubsch the Director of Personnel and John Mayfield the Director-General of Education who had also conducted the investigation into the allegations against Knight. Mr Laubsch died in 1991 and Mr Mayfield died in 2006.

The dismissal in South Australia occurred 30 years ago and the registration in Queensland some 28 years ago and I accept that memories will obviously have dimmed, however, I consider that there is ample documentary evidence on file which sets out the Report of the investigation in full and the conclusions. The document dated 16 May 1978 is addressed to the Minister of Education and entitled "Enquiry into allegations concerning teacher Gregory Knight" and records a numbers of factual findings against Knight in specific detail. That document stated that the Director of Educational Facilities had found that Knight was guilty of improper and disgraceful conduct and recommended to the Minister that he dismiss Knight from the teaching service. In any event there is clear evidence that the Minister dismissed Knight from the South Australian teaching service as a consequence of the investigation.

Indeed it was Hopgood who then dismissed Knight and subsequently revoked that dismissal. He is available to give evidence. Furthermore, it is not as if Knight was just one of many hundreds of teachers in South Australia that Hopgood as Minister was responsible for but rather Knight was personally known to Hopgood and the circumstances would have had a particular resonance.

[140] Whilst Mr Hopgood is elderly he has stated that he does have "...a reasonable recollection of the basic sequence of events up to and including the provision of the reference."[65] As he played in the band with Knight it is clear he knew him personally and he says as much in his reference. I do not consider in the circumstances that the second, third, and fourth respondents would be prejudiced in their ability to meet the allegations against them even given this effluxion of time.

[141] Counsel for the second and third respondents also submitted that there is evidence of a failure by Mr Fry from the Queensland Board to recall and that "...the failure to be able to recall whether he had dealings with the file or what they were and the way in which he's pieced together what might have been the practice" is of concern. Counsel made particular reference to his concern in relation to "...evidence purportedly to be given by way of reconstruction."[66] Counsel submitted that this factor was particularly prejudicial in this case and will prohibit a fair trial. Reconstruction is obviously a matter for the trial judge and I do not consider that the potential for prejudice in this case is such that it will not allow a fair trial.

One of the major issues at trial relates to the conversation between Mr Case and Mr Thomson and what the precise content of that conversation was and whether a warning was given. Both Mr Case and Mr Thomson are alive and both remember the conversation although their memories of the conversation would appear to vary in relation to the precise content of the conversation. Importantly both have given statements about the conversation and both are available to give evidence.

The applicant relies on the practices at the school in the 1980s and Mr Case can give this evidence as can the applicant. Similarly, they can both give evidence as to the conversation where the applicant is alleged he told Mr Case of the abuse.

[144] Counsel for the second and third respondents as well as the fourth respondent point to the danger of applying standards of liability which exist today to practices which occurred in the past and that there is a danger of approaching the matter with hindsight rather than prospectively. Given the recent Court of Appeal decision in Hegarty v Queensland Ambulance Service[67] the law in that respect is clear and will obviously be the focus of Counsel's submissions at trial.

Counsel for the second and third respondents also points to the fact that this is a case involving psychiatric injuries and argues that damages claims for psychiatric injuries brought after a lapse of time are more likely to produce prejudice because of the notorious difficulty in defending and investigating such injuries and relies on the decision of Page v The Central Queensland University.[68] An examination of the facts in that case, however, indicates that the circumstances there are very different to those in existence in the current case.

In Batistatos v Roads & Traffic Authority (NSW) Kirby J referred to the decision of Priestley JA in Holt v Wynter[69] as follows:

"One thing seems to be clear; that is that the term [fair trial] is a relative one and must, in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case. Further, for a trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable. Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court. Time and chance will have their effect in evidence in any case, but it is not usually suggested that that effect necessarily prevents a fair trial."

[147] Accordingly, I consider that the circumstances in this case are such that there should be no prejudice to the second, third, and fourth respondents in obtaining a fair trial and that the discretion should be exercised in favour of an extension. I consider that despite the fact some 30 years have gone by the claim can still be fairly litigated given the number of witnesses still available and the extent of the documentary evidence available not only in relation to the events in South Australia in 1977 but subsequent events.

Application for an order pursuant to s 18 PIPA

[148] Section 18 provides:

"18 Claimant's failure to give part 1 of a notice of a claim

(1) A claimant's failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim unless -

(a) the respondent to whom part 1 of a notice of a claim was purportedly given -

(i) has stated that the respondent is satisfied part 1 of the notice has been given as required or the claimant has taken reasonable action to remedy the noncompliance; or

(ii) is conclusively presumed to be satisfied it is a complying part 1 notice of claim under section 13; or

(b) the respondent has waived compliance with the requirement; or

(i) declares that the claimant has remedied the noncompliance; or

(ii) authorises the claimant to proceed further with the claim despite the noncompliance.

(2) An order of the court under subsection (1)(c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant's failure to comply with the requirement."

[149] It is clear that in this regard the applicant is seeking an indulgence and has an obligation to demonstrate to the court that he should be allowed to proceed with his claim. The real question is whether there is a good reason for making the order.[70] The issues which need to be explored are the extent of the applicant's delay in giving the notice, the adequacy of the explanation for the delay, and the likelihood of prejudice.

As Jerrard JA stated in Gillam v State of Queensland & Ors:[71]

"Where there has been delay, and where at the time an application under s 18 is heard a reasonable excuse for that delay exists, then whether that excuse has been provided as required by s 9(5) or not, its existence will be relevant to the exercise of the s 18(1)(c)(ii) discretion in a claimant's favour; but demonstrating that one exists is not mandated by the section."

[151] I consider that, given that the material fact of a decisive character with respect to his claim against the second, third, and fourth respondents were not within the applicant's means of knowledge until they were brought to his attention in late 2007, there is an adequate explanation for the delay. I do not consider that the prejudice is such that leave should not be granted.

The application for a stay of the plaintiff's claim or for the claim to be dismissed as an abuse of process pursuant to r 171(1) (e) of the UCPR

[152] This application centres on the issues of prejudice already determined and I do not consider that prejudice has been shown such that this application should be granted.

[154] I will hear from Counsel as to costs and as to the precise formulation of the Orders.

(i) The period of limitation in respect of the applicant's claim for damages against the first respondent be extended to 16 August 2002.

(ii) The period of limitation in respect to the applicant's claim for damages against the second, third, and fourth respondents be extended to 18 December 2007.

(iii) As against each of the second, third, and fourth defendants' Orders pursuant to s 18 of PIPA, that the plaintiff proceed with his claim despite the fact that he has not given a complying notice of claim.

(iv) The applications filed on 31 March 2008 by the second and third respondents to strike out or stay the plaintiff's proceedings against them and the first defendant's third party proceeding against them are refused.

1. [1] Transcript of Proceedings, p 25.
2. [2] Submissions of the second and third respondents, p 2.
3. [3] Crouch v Commissioner for Railways (Qld) [1985] HCA 69; (1985) 159 CLR 22, 36.
4. [4] Section 75 of the Constitution of Australia.
5. [5] Blunden v The Commonwealth of Australia (2003) 218 CLR 330, 336.
6. [6] British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 217 CLR 30, 57-58 (dicta of McHugh, Gummow and Hayne JJ).
7. [7] Breavington v Godleman & Ors [1988] HCA 40; (1987-1988) 169 CLR 41.
8. [8] (1997) 191 CLR 471.
9. [9] [2000] HCA 36; (2000) 203 CLR 503.
10. [10] ;