"JX" v "GX" & 3 Ors

CATCHWORDS : Extension of time to maintain proceedings - Limitation Act 1969 (NSW) - s 60G & s 60I

Conveyancing Act - s 37A LEGISLATION CITED : Limitation Act 1969 (NSW) - s 23, s 60G & s 60I Victim's Compensation Act 1996 (NSW)

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 BHP Steel (AIS) Pty Ltd v Giudice (& Ors) (NSWCA, 7 March 1997, unreported) Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195 CASES CITED : Harris v Commerical Minerals Ltd (1996) 186 CLR 1 Holt v Wynter [2000] NSWCA 143 (2000) 49 NSWLR 128 McLean v Sydney Water Corp [2001] NSWCA 122 Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315

Mr D T Kennedy SC with Mr P Gow (Plaintiff) COUNSEL : Mr M T M McCulloch SC (First Defendant)

Ms Tahra Baulch Adamson Solicitors (Plaintiff) SOLICITORS : Mr Glen Coyne Coyne & Whittemore

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT (Extension of time to maintain proceedings - Limitation Act 1969 (NSW) - s60G and s60I) 1 MASTER: By notice of motion filed 23 March 2004, the plaintiff seeks orders granting leave pursuant to Part 3, Division 3 of the Limitation Act 1969 (NSW) (the Act) to maintain proceedings against the defendants, thus extending the time within which to commence proceedings against the defendant. An order has been made that the parties be known by pseudonyms. The plaintiff is JX. The first defendant is the plaintiff's brother, GX. The second defendant is GC, the solicitor who acted for the plaintiff's brothers. The third defendant is the plaintiff's mother, MX. The fourth defendant is the plaintiff's sister, AX. The plaintiff relied on his affidavits sworn 3 August 2004 and 27 September 2004. The defendants have filed a notice of appearance but did not rely upon any affidavit evidence.

2 By further amended statement of claim (FASC) JX alleges that GX sexually assaulted him on numerous occasions and as a result of these assaults, battery and trespasses, JX has suffered personal injuries. JX seeks an extension of the limitation period pursuant to ss 60 G & I of the Act. 3 JX was born on 8 September 1961 and is currently 43 years of age. He attended school at Brookvale and had aspirations of becoming a solicitor. He is presently employed as a greenkeeper as he has been since 1986. During the 1960s and 1970s, at a time when JX was a minor, GX sexually assaulted him on numerous occasions and various places. GX's abuse of JX started when he was 2-3 years old and continued until JX was 14 years of age. 4 Following the abuse, JX became a heavy smoker, a binge drinker from the age of 18 (t-5.49) and gambled frequently to temporarily forget about the abuse. JX has had problems with relationships and blames himself for what happened to him. 5 On 11 March 1996, when he was 34 years of age, JX consulted with a solicitor at Manly, who arranged for him to see a detective at Mona Vale Police Station. At the meeting with the detective, JX made a statement in respect of the sexual abuse he suffered at the hands of GX. GX was charged. On 21 May 1997 GX was convicted in the District Court of two counts of indecent assault and one count of buggery relating to his sexual assault of JX. On appeal GX's sentence was reduced to 8 years. GX is presently incarcerated in the Long Bay Correctional Facility at Matraville.

The Victims Injury Compensation Tribunal proceedings 6 Following GX's conviction, JX returned to his solicitor to make an application for victim's compensation. The original application was made on 31 June 1997. 7 In September 1997 JX recalls reading articles in the Manly Daily and Daily Telegraph newspapers that indicated that GX had transferred his interest in a property to another brother "L". JX believed that the Victims Compensation Tribunal could not stop the transfer and that the GX had no other assets. 8 On 3 June 1998, the Assessor handed down reasons for determination in respect of the JX's application. JX was awarded the statutory maximum of $50,000.00 under the Victim's Compensation Act 1996 (NSW) for compensation for injury and costs. On receipt of the victims compensation payment, JX contends that he was of the view that "that was the end of the matter and that no further action could be taken".

Transfer of the GX's property 9 On 23 June 1997, one month after GX was convicted and sentenced to gaol, GX transferred his North Narrabeen home to his brother "L" for a consideration of $1.00. In December 2000, the plaintiff's brother "L" died. The plaintiff became aware of the contents of L's will after a conversation with another brother. The will provided for the transfer of property that GX had transferred to "L", to the second, third and fourth defendants to be held in trust for GX. It is JX's evidence that it was only after his solicitor had obtained advice from counsel that he came to the view that he could make an application and instructed his solicitor to do so.

Counselling 10 JX has received counselling in relation to his abuse. On 1 September 1997 and 8 September 1997, JX consulted Dr Lamble, a consultant clinical psychologist. Dr Lamble (report 26.9.1997) stated that JX had problems with alcohol abuse and was apprehensive in social situations. 11 In early 1998 Dr Lamble reassessed JX and further stated (report 3.4.1998) that JX had a problem with gambling, sleep disturbance, poor appetite, was constantly irritable and easily fatigued, less interested in sex, was at times suicidal, was suffering from chronic depression and was reluctant to accept help with the above. 12 On 20 October 2003 JX saw Dr Anderson, a consultant psychiatrist. Dr Anderson reported (21.10.03) that JX was frightened of the outside world, that he drank, gambled and suffered from a major depressive disorder, anxiety disorder and alcohol dependence. 13 On 24 February 2004, Dr Lamble reassessed JX after a break of four years. Dr Lamble (report dated 29 February 2004) found that JX's condition of anxiety had not improved. At their February meeting, Dr Lamble considered that JX had constant anxiety, recurrent feelings of depression with gambling pathology and that his symptoms also met the criteria for the diagnosis of social phobia, post traumatic stress disorder, clinical depression, addiction to cigarettes and binge drinking. 14 On 3 February 2003 JX filed a statement of claim seeking an order that the transaction to the second to fourth defendants as trustees for GX be set aside pursuant to s 37A of the Conveyancing Act. 15 On 23 February 2004 JX filed this notice of motion seeking an extension of the limitation period. 16 On 5 October 2004 JX filed a further amended statement of claim. The Law 17 Section 60G of the Act applies to a cause of action that accrues on or after 1 September 1990 found on negligence, nuisance or breach of duty, for damages for personal injury. Some of the acts occurred in the 1960's and 1970's when the plaintiff was a minor, so s 58 of the Act would be applicable. Section 58 empowers the court to extend the limitation period, if it is just and reasonable to do so "for such period as it determines". The onus of such cases rests with the plaintiff. In addition to satisfying a threshold requirement in s 60I(1)(a), it must be shown that it is just and reasonable to make an order. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1; BHP Steel (AIS) Pty Ltd v Giudice (& Ors) (Court of Appeal, 7 March 1997, unreported); Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195; Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128; McLean v Sydney Water Corp [2001] NSWCA 122; and Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315. 18 The relevant provisions of s60I of the Act are as follows: "(1) A court may not make an order under s60G or s60H unless it is satisfied that:

(a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 19 Under the Act, in order to gain access to the beneficial provisions of s60G, JX must show that:

(1) As at 1985 (being the latest date of the expiration of the relevant limitation period) he was unaware of one or more of the matters identified in s60I(1)(a)(i), s60I(1)(a)(ii) or s60I(1)(a)(iii);

(2) That he did not become aware of that or those or he ought to have become aware in s60I(1)(a) (or the last of those matters to become known to him) earlier than 3 February 2000.

As a result, the practical effect is to require JX to identify specifically what fact or facts he claims not to have known in 1985, which lack of knowledge meets the description in one or more of para (i), para (ii) and para (iii) of s60I(1)(a); and to show, by evidence, the date on which he acquired knowledge thereof (being a date later than 3 February 2000); or to show that that fact was, or those facts were still unknown to him on that date.

(i) Whether the plaintiff has proven that "he did not know that a personal injury had been suffered"

20 The plaintiff submitted that there are a number of matters of which he was unaware in terms of the nature or extent of the personal injury that he has suffered until very recent times and within the last three years that is, a diagnosis of social phobia and a diagnosis of post traumatic stress disorder. Further, the plaintiff submitted that he was also unaware that there was a connection between the sexual assault and any right of action that he may have had to redress that matter. 21 Since he was a minor, JX suffered from GX's sexual abuse. The reports of Drs Lamble and Anderson detail the poor and deteriorating psychological state of JX and his dependence on alcohol, gambling and cigarettes to relax and settle his nerves. While JX knew of symptoms he experienced over the years, it is his contention that it was only subsequent to making his statement to the police, giving evidence in the proceedings against GX, seeing a psychologist and social worker, commencing his application for victim's compensation and instigating the present application that he recalled a number of other instances of abuse. 22 As was stated by the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (per Gummow and Cooper JJ at 402), it is important to appreciate that the personal injury that the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important. 23 From at least March 1996 JX knew that he had been sexually abused by his brother. Regrettably, it is my view that JX knew that he had suffered personal injuries well prior to 2000. The plaintiff's claim under s60I(1)(a)(i) fails.

(ii) Whether the plaintiff has proven that he was "unaware of the nature or extent of the personal injury suffered" 24 JX submitted that until 24 February 2004, when he revealed for the first time to a psychologist that he had had a sexual relationship with a male classmate when he was at school, he had not mentioned this event previously because of the intense shame JX felt over the relationship that continued for some 6 months. JX was unaware that this behaviour was typical of someone sexualising a relationship after having been a victim of sexual abuse. This additional knowledge, the plaintiff submitted, meant that he was unaware of the nature or extent of the personal injury suffered. 25 The test of knowledge posed by s60I(1)(a)(ii) requires the court to look at the actual awareness of JX. Neither the reasonableness of that awareness nor constructive knowledge is an element of s60I(1)(a) - (Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 9 and 10). Harris v Commercial Minerals Ltd is a case of a physical disease of gradual onset and not one of psychiatric illness. The nature and extent of the injury that JX sustained is to be determined as at the date of the hearing of the application (per Harris v Commercial Minerals Ltd at 13 and 14). A plaintiff may be held to have been aware of the nature or extent of his injury within the relevant period if, during that period, he was aware of the effect that the injury was then having upon him and of its likely future course; even though he may have been unaware of the precise pathology or medical diagnosis. On the other hand, knowledge of the medical diagnosis will not itself amount to knowledge of the nature and extent of the injury if the plaintiff is unaware of significant aspects of the prognosis, for example that the injury is permanent and will not be amenable to treatment; or that it may deteriorate with the passage of time. As long as the consequences are of a kind that the plaintiff expects, the plaintiff will be aware of the extent of the injury. 26 Prior to the expiration of the limitation period, JX was aware of the acts that he had been subjected to by his brother. He knew that he had become withdrawn and unable to trust people. He knew that he no longer participated in social outings, instead choosing to drink heavily, smoke and gamble to distract him from thinking about the sexual abuse. In 1997 and 1998 Dr Lamble considered that JX had constant anxiety, recurrent feelings of depression with gambling pathology and that his symptoms also met the criteria for the diagnosis of social phobia, post traumatic stress disorder, clinical depression, addition to cigarettes and binge drinking. The plaintiff was aware of the psychologist's views. 27 At the hearing the plaintiff gave evidence that without proper medication the problems he was experiencing would persist indefinitely (t-4.45-48). The plaintiff has been receiving medical treatment over many years. This factor, together with the plaintiff becoming aware of his sexualising a relationship after being a victim of sexual abuse, are not in my view significant aspects of the prognosis. It is my view that the plaintiff was aware of the nature or extent of his personal injury by 1998 at the latest. This falls outside the threshold period. 28 Thus JX's claim under s60I(1)(a)(ii) fails.

(iii) Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission" 29 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. In his affidavit evidence JX deposed that it was not until after he had obtained advice from counsel that he came to the view that he could make an application and instructed his solicitor to do so. 30 Under cross-examination JX conceded (t-7.5-10) that Mr Adamson, his solicitor, informed him that if the Victim's Compensation Tribunal was unable to bring proceedings against GX, then any claim might potentially be a waste of time and resources. When JX was asked to agree with the proposition that he was aware, in 1998, that the Victim's Compensation Tribunal was thinking about taking proceedings against GX, he agreed (t-8.8-12). Counsel then queried whether JX was aware at the time that the Victim's Compensation Tribunal was thinking about taking proceedings to recover compensation that the Tribunal had paid to JX; he conceded knowledge of this fact (t-8.14-21). Shortly thereafter, it was put to JX that he was aware that the Victim's Compensation Tribunal commenced proceedings against GX in the Supreme Court in respect of GX's property and he conceded knowledge of this occurring (t-8.37-46). 31 When it was put to JX that he was aware in 1997 that GX had "tried to do something … to put the property out of his name", his reply was "Only when I read it in the Manly Daily" (t-16.56). On about 7 September 1997 articles appeared in the Manly Daily and Daily Telegraph concerning the transfer of the property. JX maintained that the reason he did not take further action against GX until he spoke to his solicitor, Mr Adamson, in 2003, was because he thought no further action could be taken (t-17.1-16). When pressed by counsel during cross examination that this was not true, JX maintained his initial answer. JX was shown a receipt for $200.00 issued in 1998 for expected disbursements he paid to Mr Adamson and was asked about whether the money paid was to conduct searches and what the purpose of asking his solicitor to undertake enquiries about whether GX had assets to see if it was worthwhile suing him, JX stated that he could not remember (t-17.18-35). I did not find this explanation to be convincing. JX's claim under s60I(1)(a)(iii) fails. 32 If I am wrong and the plaintiff has passed through the s60I(1)(a)(i), s60I(1)(a)(ii) or s60I(1)(a)(iii) gateway, I turn to consider whether it is just and reasonable to extend the limitation period.

Just and reasonable 33 I turn now to consider whether it is just and reasonable to extend the limitation period. 34 Although the facts giving rise to this claim occurred between 1971 to 1979, they are well known as there has already been criminal and victim's injury compensation proceedings arising from the sexual assaults involving JX and GX. There is a profile of JX's medical condition since 1997. The defendant has had JX assessed by a psychologist and a psychiatrist but has not yet served those reports. 35 "L" has died. GX submitted that "L's" evidence of why GX's property was transferred to him for $1.00 by GX is no longer available. But GX is able to give evidence as to why he transferred his property to "L". Likewise, the other defendants may have some understanding as to the reasons why L inserted this transfer provision in his will. It is my view that, had JX passed through a threshold gateway, the defendant would have been afforded a fair trial. It would have been just and reasonable to extend the limitation period. 36 Further, as the causes of action arguably arose prior to 1990, s 58 of the Limitation Act may apply. As this was not the subject of legal argument before me, I will not say any more on this topic.

Equitable relief 37 While this judgment is concerned with the parts of the statement of claim that seek damages for personal injury, other relief is pleaded in the statement of claim. At paragraphs 13 to 16 of the further amended statement of claim pleads: "13. At all material times the First Defendant was aware that the Plaintiff intended to commence proceedings against the First Defendant for damages for assault and battery. Particulars The Plaintiff demanded compensation from the First Defendant prior to March 1996. 14. The First defendant effected the transfer in order to avoid paying any judgment sum that may be awarded to the Plaintiff in an action for damages. 15. In the premises the First Defendant effected the transfer with the intent to defraud the Plaintiff within the meaning of section 37A Conveyancing Act 1919. 16. The Plaintiff was prejudiced by the Transfer. Particulars The property is the only property of the First Defendant on which a judgment could be executed." 38 The plaintiff seeks an order against the first defendant that the transfer be set aside. As against the second to fourth defendants, the plaintiff seeks that they transfer the property to the first defendant; or alternatively, a declaration that the transfer is voidable and that the transfer be set aside. Section 23 of the Limitation Act reads: "ss 14, 16, 17, 18, 20 and 21 do not apply, except so far as they may be applied by analogy, to a cause of action for specific performance of a contract or for an injunction or for other equitable relief." These claims are in the nature of equitable relief and they may not be statute barred. As I have not heard any legal argument upon this topic, I say no more. 39 This is an unusual case and in my view costs should abide the outcome of the proceedings. Hence, I reserve the question of costs.

(1) The plaintiff's notice of motion filed 23 March 2004 is dismissed.

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