Lisa Maree Jacks v State of New South Wales

District Court of NSW|2013-09-06|Before: Yeldham J, Mr J

Judgment 1The applicant is now 39 years old (she was born in 1973). When the applicant was four months old, the Department of Community Services (DOCS, which was then the Department of Youth and Community Services) was notified of suspected parental neglect of the applicant. During the applicant's childhood, DOCS was involved with the applicant's family. The applicant says that throughout her childhood she was subjected to neglect and abuse from her mother and that, from about 1982 to 1986, her older brother J subjected her to sexual abuse, including strip-searching and sexual intercourse. J died in 1999. In 1984, 1985 and 1988, DOCS received notifications of possible sexual abuse of the applicant by J. There were also notifications of maternal neglect. In 1988, the applicant's mother applied for the applicant to be made a state ward on the basis that the relationship had broken down irretrievably. A wardship order was made in January 1989, when the applicant was 15 years old. 2The applicant said that, during her childhood, not only was she assaulted by J, but she was also sexually assaulted by a church fellowship leader, John Steggles, and she was indecently assaulted by a babysitter called "John" in 1983/ 1984. In 2011, Steggles pleaded guilty to charges. 3The applicant asserts that DOCS negligently failed to properly investigate and monitor her family. She says that by 1984 DOCS should have been aware that she was at risk of harm and should have removed her from her family. The applicant alleges that, because of these failures by DOCS, she suffered psychiatric injury. 4On 5 September 2012, the applicant filed a statement of claim. The respondent filed a defence raising the Limitation Act 1969 (the Act) as a defence. The applicant seeks an extension of the limitation period so that she may bring the proceedings.

Issues (1)Whether the applicant was a credible witness. (2)Whether as at 5 September 2009 the applicant was unaware of the nature or extent of her personal injury, or was unaware of the connection between that injury and the acts or omissions of DOCS. This "gateway issue" arises under s. 60I (1) (a) (ii) and (iii) of the Act and involves a consideration of when it was that the applicant ought to have become aware of the relevant matters. (3)Whether it is "just and reasonable" to extend the limitation period. This discretionary issue arises under s. 60G(2) of the Act. The applicant must show that there can be a fair trial. It is relevant to consider the extent of the delay, whether the applicant has a viable cause of action and prejudice to the respondent.

The applicant as a witness 5The respondent submitted that the applicant's case must fail because it depends upon her evidence and she was an unreliable witness. The respondent submitted that the applicant's complaints were inherently improbable. It was submitted that, whenever the applicant had come under external pressure to explain her behaviour, she had responded by complaining of maternal or sexual abuse. However, when DOCS had sought to investigate her complaints, the applicant had refused to cooperate. The respondent contended that the applicant had given conflicting accounts about who abused her and in what circumstances. Further, she had made no contemporaneous complaint. 6Regrettably, complaints about familial abuse and neglect are not inherently improbable. In this case, DOCS did not consider the complaints to be inherently improbable; over many years the Department was concerned for the applicant's welfare. The respondent asserted that the applicant fabricated allegations of abuse in order to excuse bad behaviour. An alternative explanation is that the applicant's bad behaviour was, at least in part, a consequence of abuse. As for the contention that the applicant should be disbelieved because she failed to make a contemporaneous complaint, it is often the case that victims of sexual abuse fail to make a complaint for many years. The criminal courts routinely warn juries that there may be a good reason for failing to complain about sexual assault. Indeed, the legislature requires that such a warning be given: s 294 Criminal Procedure Act 1986. 7The respondent submitted that the applicant was an admitted liar. In August 2008 she lied to her employer and general practitioner, saying that her mother had died recently. On several occasions, the applicant falsely asserted that she had attained a Higher School Certificate. On the social media site "Linked-in", she exaggerated her employment experience (wrongly stating that she had experience in "court support" and "advocacy services") and she lied about possessing tertiary qualifications. The respondent relied upon convictions for dishonesty (stealing a motor vehicle in 1989 and passing a valueless cheque in 1993). 8On the hearing of the application, the applicant was subjected to protracted cross-examination that extended over several days. With the exception of the "LinkedIn" cross-examination and the cross-examination concerning lies told to employers, the applicant emerged relatively unscathed. The applicant said that she had stated that her mother had died as a coping mechanism. She had needed to psychologically "kill off" her mother. In the context of the applicant's allegations concerning her mother's conduct, this explanation was believable. Overall, I found the applicant to be a reasonably believable witness. In substantial ways, the DOCS records support the applicant's account of her family life. 9The respondent relied upon Jones v Dunkel [1959] HCA 8 in relation to the applicant's failure to call her mother, younger brother A and other possible witnesses (including the applicant's aunt, a psychiatrist who saw the applicant in 1979, a psychologist who saw the applicant in 1985, a teacher and the principal of the applicant's primary school). 10On an interlocutory application, an applicant cannot necessarily be expected to call corroborative witnesses. The applicant has a deeply troubled relationship with her mother, whom she asserts assaulted, neglected and abused her over many years, and whom she says that she "killed off". The applicant is distant from her brother A, whom she says witnessed abuse (and, inferentially, did little or nothing to prevent it). She has had no contact with her brother for five years. I do not draw any adverse inference against the applicant arising from her failure to call these or other witnesses on the interlocutory application.

Sections 60 G and 60 I of the Act 11Sections 60G and 60I provide: 60G (1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, ... (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. ... 60I (1) A court may not make an order under section 60G or 60H unless it is satisfied that: 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 defendants act or omission, at the expiration of the relevant limitation period or at a time before that expiration when the proceedings might reasonably have been instituted, and 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). (2) ... 12In s 11, "personal injury" is defined to include "any disease and any impairment of the physical or mental condition of a person". 13Pursuant to cl 4(4)(b) of Schedule 5 to the Act, ss 60G and 60I of the Act apply to causes of action that accrued before 1 September 1990 as well as to causes of action that accrued after that date. An applicant must satisfy the requirements of section 60I(1)(a) (at the expiration of the limitation period, the applicant was unaware of the fact, nature, extent or cause of the relevant injury) and then establish that the application for an extension was brought within the time limit specified in cl 4(4)(a) (within three years of when the applicant became aware or ought to have become aware of those matters): Dedousis v Water Board (1994) 181 CLR 171. 14A statement of claim must be filed within the three year extension period: Grant v State Rail Authority (Supreme Court of New South Wales, Yeldham J, 28 February 1986, unreported), Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6, Turagadamudamu v PMP [2009] NSWCA 120. The applicant filed a statement of claim on 5 September 2012. Consequently, she must show that it was no earlier than 5 September 2009 that she became aware or ought to have become aware of the matters in s 60I(1)(a). 15The benefit of s 60I is available to an applicant who is unaware of the full nature or extent of personal injury suffered, i.e. is unaware of all the significant elements of his or her personal injury and of the connection of each of those elements with the relevant acts or omissions of the defendant: Briggs v Sewell [2002] NSWCA 182 at [40]. In that case, the question was whether, by the relevant date, the applicant had become aware or ought to have become aware of the full nature and extent of her personal injury and its connection, in all significant respects, with the (respondent's) alleged assaults upon her a decade earlier. It was noted that this was a difficult question because the alleged injuries were psychological and psychiatric in nature and impacted on many areas of the applicant's life: at [41]. 16The Court must first consider when it was that the applicant knew that she had a diagnosable psychiatric condition (as opposed to symptoms) related to the neglect and abuse of her mother and sexual abuse by her brother. Because the law distinguishes between mere emotional distress and a recognisable psychiatric illness, an applicant must be aware that he or she suffers from a recognisable psychiatric illness, not merely the associated symptoms: Commonwealth of Australia v Shaw 66 NSWLR 325, Commonwealth of Australia v Smith [2005] NSWCA 478 per Handley JA at [16]. However, an applicant need not know the medical description or diagnosis of her condition. In CRA Ltd v Martignano & Anor 39 NSWLR 13 the applicant knew of injury and the symptoms, but did not know the precise description of the condition and it was held that she was not entitled to relief.

Section 60I (1) (i) and (ii) - awareness of fact and nature of injury 17The applicant submitted that, at the earliest, she became aware of the nature and extent of her personal injury on 21 June 2010, when she received a report from Mr Rolfe dated 18 January 2010, stating that she suffered from borderline personality disorder and post-traumatic stress disorder. At that time she learned that she had a diagnosable psychiatric injury. 18The applicant conceded that, since childhood, she had realised that she had psychological problems. She had difficulties with trust, self - esteem and with articulating her needs. However, she said that she was not aware that her problems amounted to a psychiatric condition. During 2008, she gradually became aware of the fact, nature, extent and cause of her psychiatric injury. In August 2008, the applicant's ex-husband obtained custody of their son. That event caused the applicant to feel highly anxious. She ruminated about the maltreatment that she had received as a child. She compared her experience as a loving mother who had nevertheless lost custody of her son with her experience as an unloved child who had been forced to remain in an abusive family environment. 19In August 2008, the applicant sought treatment at the Mandela Unit, the mental health unit at Gosford Hospital. The psychiatric notes record that the applicant's health issues were attributed to several stress-related events. The applicant was affected by employment and family law problems and her mother's "death". The records state that the applicant had become "overwhelmed by multiple stressors". The notes do not refer to childhood abuse. 20In late 2008/2009, the applicant underwent counselling. On 10 December 2008, she first saw Kathryn Tiffen, a psychologist. The applicant and Ms Tiffen had difficulty establishing a therapeutic relationship and the applicant did not pursue the counselling. It seems that Ms Tiffen did not communicate any diagnosis to the applicant. 21On 3 March 2009, the applicant disclosed sexual abuse by J to her general practitioner. 22Later in March 2009, the applicant was referred by Victims Services for psychological treatment of post-trauma symptoms through the Victims of Crime Approved Counselling Scheme. In March 2009, the applicant began to receive counselling from Melanie Kelly for "post trauma symptoms". Between March and October 2009, she completed 21 counselling sessions. On 10 July 2009, Ms Kelly reported to the Director of Victims Services that the applicant "reported experiencing symptoms of post-traumatic stress disorder", including sleep difficulties, flashbacks, suicidal ideation and relationship difficulties. On 2 October 2009, Ms Kelly wrote to the applicant, referring to the "symptoms of post-traumatic stress disorder" (Ms Brewer's affidavit page 0052). I accept the applicant's assertion that this statement did not cause her to fully comprehend the nature and extent of her injuries. 23On 15 April 2009, the applicant made a police statement disclosing alleged sexual assaults by the bus driver John Steggles and her brother J. She also referred to abuse and neglect by her mother. 24In mid April 2009, Ms Brewer, the applicant's solicitor, assisted the applicant to complete six applications for victims compensation. Two applications related to J (they alleged physical and sexual abuse), one related to her mother (alleging physical assault), two related to Mr Steggles, and the sixth application related to "John", the baby-sitter. In the applications, the applicant described her compensable injury as "psychological injury", "sexual assault" and "domestic violence". 25It appears from the records of the Mandela Unit that in August 2008 the applicant did not appreciate that her psychological problems were post-traumatic in nature, and nor did her treatment providers. Her problems were attributed to non-traumatic matters such as employment and family law difficulties. In April 2009 when she completed the victims compensation applications, the applicant did not use the expression "post-traumatic". 26The applicant was referred to Mr Rolfe, a clinical psychologist, for assessment in relation to her six claims for victims compensation. On 18 January 2010 Mr Rolfe diagnosed the applicant as suffering from borderline personality disorder and post-traumatic stress disorder. He reported: "It is my opinion that the physical abuse and neglect by her mother together constitute a situation of domestic violence which is the primary cause, both in time and impact, of Ms Jack's childhood, adolescent and adult conditions and therefore contribute some 55% to her current presentation. Against this background it is my opinion that the physical and sexual abuse by her brother, (J) is also an important contributor, particularly to her early adolescent behavioural problems... which is considered to contribute (say 35%) to her current condition. Against this background, because it came later in time, was less frequent and for a short period and was external to her family the physical and sexual abuse by John Steggles is considered to be a relatively minor contributor (say 10%) to the current presentation." 27The applicant received this report on 21 June 2010 (JB affidavit at [63]). 28In the context of the lodgement of the applications for victims compensation and the extensive counselling that the applicant received from Ms Kelly in 2009, it is obvious that by approximately mid-2009 the applicant was gaining a growing appreciation that she was suffering from a "post-traumatic" psychological injury in the sense that her psychological injury was related to childhood abuse. 29Dr Klug reported that the applicant's conscious realisation that her child abuse had caused major psychiatric problems "likely was a gradual process from 2008 onwards." In his report dated 20 March 2013, Dr Klug stated: " The concept of having major psychiatric problems of this nature occurred only in 2008 onwards ... having stated that, it is clearly not a single point in time that an awareness of acknowledgement of these issues becomes conscious. It is likely was a gradual process from 2008 onwards." 30I find that, between 2008 (but probably not until after April 2009) and June 2010 the applicant gradually came to appreciate that her psychological injury was post-traumatic in nature, was caused by childhood abuse and was major in extent. However, she was unaware that she suffered from a diagnosable psychiatric injury from June 2010, when she read the report of Mr Rolfe.

When was it that the applicant ought to have become aware? 31In relation to the "normative element" (when it was that an applicant ought to have become aware of the relevant matters), in order to avoid constructive knowledge an applicant must have taken all such action as it was reasonable for him or her to take to find out: Commonwealth v Smith. This may be related to when it was that an applicant ought to have sought medical advice which would very likely have made the applicant aware of the nature and extent of his or her injury and its connection with the respondent's conduct: Commonwealth v Shaw. An applicant is expected to take all steps to acquire knowledge, having regard to what was reasonable for her at the time: Shaw 32In Pearce v The Commonwealth [2006] NSWCA 210, the Court confirmed that the assessment of when an applicant ought to have become aware was an objective one. At [33] the Court noted that factors that might make it inappropriate to conclude that a person "ought" to have taken steps that would have resulted in the obtaining of relevant knowledge might include any known link between the injury and the failure to take such steps, any discouraging conduct from the prospective defendant, particular characteristics of the applicant that may have discouraged the taking of such steps, and the likelihood in the applicant's mind that such steps would be appropriate. 33The respondent relied on evidence that in 1990/ 1991 the applicant had disclosed the fact that J had sexually abused her to a family with whom she was staying. The family had suggested to the applicant that she should seek counselling in relation to J's abuse, and also told her that she was no longer welcome in their home. 34It is unrealistic to expect that a victim of abuse who is still a minor and who is going through a very difficult period (possibly due to undiagnosed psychological problems) will follow advice to seek counselling. It is far from clear that, had the applicant sought counselling in 1990, the counselling would have revealed a post-traumatic stress disorder. That diagnosis was not made in August 2008 when the applicant was treated at the Mandela Unit. 35It is not the case that the applicant ought to have become aware of her condition prior to 2010.

Section 60I (1)(a)(iii) - awareness of connection between injury and acts of DOCS 36This issue is concerned with when it was that the plaintiff became aware of the connection between her injury and the acts or omissions of DOCS. The inquiry addresses when it was that the applicant knew that DOCS had relevant power, not when the applicant learned details of the legal basis for that power: Briggs v Sewell. Importantly, the question is not when she became aware of the connection between her injury and the acts of her mother and brother. 37The applicant submitted that she was not aware of the powers of DOCS to seek her removal until she received the report of Professor Oates in January 2011 (para 281 of the applicant's affidavit). 38Lack of awareness of a "material" act or omission that constitutes a substantial ground upon which reliance will be placed is sufficient to satisfy s 60I(1)(a)(iii): Dedousis. It will be enough if the applicant proves that she was not aware of alternative systems available to protect her: Dedouis at pp 181 - 182. 39In late 2008, the applicant applied for her DOCS file. In early 2009, she received and read the file. 40On or about 16 April 2009, the applicant's solicitor informed the applicant of "the possibility of a civil claim against (the respondent) for failure to adequately protect [the applicant] from harm to which she was subjected perpetrated by her brother Jason". She also informed the applicant that there would need to be medical evidence and expert evidence in relation to whether DOCS had breached its duty of care towards her. 41At that stage, the applicant was going through a personal crisis and was quite unstable. According to her evidence (para 219 of her affidavit): "I was aware at that stage that I was damaged from what happened in my childhood and that I was suffering with some type of anxiety, however I was never told that I suffered from any recognised psychiatric illness by Melanie Kelly. All we did was explore my feelings and discuss recent events happening in my life." 42In June 2009 the applicant contacted her solicitors stating: "It is vital for me to have DOCS acknowledge how they treated me and how they let me down as everyday are paying the price for being a state ward... I'm homeless at the moment and just feel like I can't get my life back because I am so consumed with having my voice heard ..." 43The applicant felt antagonistic towards DOCS and felt that the Department had behaved badly, but she was ignorant about whether and what avenues had been open to DOCS to take action. 44In mid 2009, the applicant's solicitor was still reading and analysing the very substantial DOCS file. 45On 13 July 2009, the applicant's solicitor wrote a detailed letter to the applicant advising her about the possibility of a claim against the respondent and of the need to investigate liability, causation and damage. The applicant responded, confirming that she wished to understand her position in relation to whether she could bring proceedings against DOCS. 46Following further exchanges, on 10 August 2009 the applicant attended a conference with her barrister. He advised that the possibility of bringing a claim against the respondent should be further investigated. Through August, the applicant solicitor continued to compile a draft chronology. She also endeavoured to identify an appropriate expert. In late September 2009, Professor Oates was identified as an expert who could report upon whether DOCS had breached its duty of care to the applicant. He was retained in November 2009 but did not report until January 2011. 47In September/October 2009, the applicant had a "meltdown". She was evicted from a house in which she was residing. 48In his report dated 20 March 2013, Dr Klug stated: "Mrs Jacks in my view could only become aware of the connection between her child abuse and the failing of the Department of Community Services to protect her once she came to a conscious realisation that her child abuse had caused major psychiatric problems for her. 49It was not until June 2010 that the applicant read the report of Mr Rolfe and came to a conscious realisation that child abuse had caused major psychiatric problems for her. In that report, Mr Rolfe also referred to the connection between the conduct of DOCS and the applicant's condition. At that stage, she was aware of the possibility that she had a claim against DOCS and she wanted to pursue any claim that was available, but she was following legal advice and waiting to receive an expert report.

Ought the applicant to have become aware of the connection at an earlier time? 50The concept of liability arising from the failure of a department to fulfil its statutory obligations is not an easy one for the layperson to grasp, particularly when any direct liability for an injury lies with a third-party (in this case, the applicant's mother and J). 51In order to become aware of a connection between injury and a respondent's conduct, an applicant must first become aware of the nature of her injury, must have an understanding of the action that the respondent could have undertaken, and must then appreciate that there is a link between her injury and the respondent's failure to act. In this case, the applicant did not become aware that her injury was post-traumatic in nature until some time in 2009. She did not become aware that she had a diagnosable psychiatric condition until June 2010. Both the applicant and her solicitor were awaiting an expert's report from Professor Oates in relation to DOCS. There is no basis for concluding that the applicant ought to have become aware of the connection between her injury and the failure of DOCS prior to receipt of the report of Professor Oates because the applicant was unaware of the powers possessed by DOCS.

"Just and reasonable" to extend the limitation period? 52The Court must consider the length of the delay and the reasons for the delay, whether the applicant had a fairly arguable case and its prospects of success, and prejudice to the respondent: Tomko v Palasty (No 2) (2007) 71 NSWLR 61. 53Undoubtedly, a delay of thirty years is very substantial. The primary reason for the delay was the nature of the injury. It was only when she became an adult and faced a crisis in relation to her own child that the applicant began to appreciate the impact of childhood abuse upon her.

A viable cause of action? 54In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, the High Court held that an applicant must show that she has an arguable substantive case (or a viable cause of action), not merely that she falls within the grounds. It would not be "just and reasonable" to extend the limitation period if there was no utility because an applicant's claim must fail, but the test of viability "is not a demanding one": Cavanagh v State of New South Wales [2008] NSWCA 350 per Giles JA at [24]. Weakness of the applicant's case is a matter that militates against allowing a claim to proceed: Pearce at [46] 55In the period 1977 - 1998, s 148B (5) of the Child Welfare Act 1939 provided: "148(5) Where the Director has been notified under subsection (2) or (3), he shall - (a) promptly cause an investigation to be made into the matters notified to him; and (b) if he is satisfied that the child in respect of whom he was notified may have been assaulted, ill-treated or exposed, take such action as he believes appropriate, which may include reporting those matters to a constable of police." 56One course of action available to the Director was to bring Children's Court proceedings alleging abuse or neglect. The Children's Court was empowered to make an appropriate order, including an order committing a child to the care of the Minister to be dealt with as a state ward: s 82. Pursuant to s 148C(1)(b) of the Act, the Director had the power to require that a child be presented to a medical practitioner for the purpose of a child being medically examined. 57It is arguable that the State through DOCS owed a duty to exercise reasonable care in the discharge of the mandatory requirements of both limbs of s 148B(5) of the Act, i.e. that, having received a notification, DOCS was required to promptly investigate the matters notified and, if satisfied that the child may have been assaulted or ill treated, to take such action as the Director thought appropriate: TC v State of NSW [2001] NSWCA 380 per Mason P at [117], [125], DC v State of NSW [2010] NSWCA 15 per Sackville AJA at [50]. In DC, Sackville AJA (with whom McColl and Basten JJA agreed) considered a factual scenario where children had been subjected to frequent physical and sexual assaults by their stepfather, which came to the attention of DOCS. The stepfather admitted to sexual abuse of children. His Honour was inclined to agree with the argument that DOCS owed a duty to exercise reasonable care in the discharge of the mandatory requirements of the Child Welfare Act: at [50] - [52]. 58In January 1974, the applicant's aunt reported to DOCS that the applicant's mother was unstable and that the applicant and her brothers were being neglected and exposed to "moral danger". During 1974, DOCS officers conducted home visits on approximately 17 occasions. In 1975 and 1976, there were approximately 11 visits a year. In 1977 there were approximately 28 contact visits. In 1978 there were about 22 visits. Between 1979 and 1981, DOCS lost contact with the family. In August 1981, contact was re-established. During 1982, the applicant attended a psychologist for six sessions. 59From 1973, DOCS was aware that the applicant's mother was psychologically unstable. In 1976 and 1979, the applicant's mother indicated that she could not manage the children. In 1979, the applicant's mother stayed at a convent and was observed to be disturbed. In December 1985, DOCS recorded a fear that the applicant's mother may have caused the applicant to use illicit drugs. In January 1986, DOCS recorded that the applicant's mother would resort to violence "if she felt that she could do this with impunity". In addition, DOCS was aware that J was impulsive and aggressive, and had a significant juvenile record. DOCS knew that the applicant was emotionally disturbed and exhibited behavioural problems. The applicant contends that DOCS should have appreciated the link between the applicant's dysfunctional family and the applicant's emotional and behavioural problems. 60In October 1984, the principal of the applicant's primary school notified DOCS that the applicant had alleged assault by her brother and the principal believed that the applicant was referring to sexual assault. When DOCS made enquiry, the applicant referred to physical assaults by her brothers and also referred to her brothers "doing it" to her. She said that "it" hurt. DOCS spoke to J, who denied any sexual abuse. Later in October 1984, J left home. A child at risk notification dated 1 November 1984 stated "suspected sexual abuse by brother - no corroboration at present". 61In 1985, DOCS visited the home frequently. The applicant and her mother were referred to a psychologist. However, the applicant would not elaborate on the abuse to DOCS officers or the psychologist. DOCS noted that the applicant's mother appeared to be pressuring the applicant to remain silent on the issue of abuse. Following a home visit in September 1985, DOCS officers noted that the applicant's mother was hostile and disturbed and that the applicant identified strongly with her mother. 62In December 1985, the applicant's primary school again notified DOCS of possible sexual abuse of the applicant. 63In 1986, DOCS investigated a notification that the mother was absent from the home. It was concluded that the family was dysfunctional and "secretly resistant" to change, such that ongoing supervision was unlikely to be beneficial. In November 1986, the applicant informed DOCS that her mother had physically assaulted her and she was afraid to go home, but the applicant's mother denied the allegations. During 1986, the applicant ran away from home on several occasions. 64In May 1987, the applicant was suspended from school on two occasions. In June 1987, the applicant left home after an argument with her mother and refused to return home. In this context, DOCS noted that the Director of the Sydney City Mission and a school counsellor thought that the applicant's older brother might have sexually abused her. However, the applicant was not prepared to make a direct disclosure to DOCS. The applicant's mother remained uncooperative. 65In 1987 DOCS noted "given (the applicant) age and her non-compliance with Departmental offices, there is little point in yet again re-establishing contact with the family". In September 1988, the applicant was staying at a youth refuge and refusing to have contact with her mother. At this stage, she informed DOCS that her brothers had given her "a good touching up". DOCS officers interpreted this as a reference to sexual abuse and noted that, if such conduct had occurred, it could explain the applicant's reluctance to reside at home. In October 1988, the applicant refused to discuss the allegations in any detail and became angry towards DOCS officers. 66The applicant's mother applied to have the applicant made a State ward, citing irretrievable breakdown in the relationship. In December 1988, an order was made 67DOCS records show that, from soon after her birth, DOCS was aware of problematic behaviour by the applicant's mother associated with mental instability. DOCS noted that the applicant was delayed in her early development. DOCS received a number of notifications concerning the applicant, her mother and the family generally, and DOCS deemed it appropriate to maintain a continuing involvement with the family. Many home visits gave rise to concern on the part of DOCS officers in relation to the emotional disturbance of the children. DOCS was aware of aggressive and uncontrollable behaviour by the applicant's brother J, and knew of the applicant's difficult behaviour (which was consistent with abuse). There is ample basis for the applicant to argue that DOCS failed to properly investigate her domestic situation and take available action. 68I conclude that the applicant has a viable cause of action.

Prejudice 69A respondent suffers presumptive prejudice if an extension of the limitation period is granted, but presumptive prejudice itself may not disentitle an applicant to the relief sought: Brisbane South per McHugh J at [555]. The Court must consider the significance of the prejudice and whether it is such as would make the chances of a fair trial unlikely: South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 at [33]. 70It is for the respondent to adduce evidence of particular prejudice: Brisbane South per Toohey and Gummow JJ at [547] and per Kirby J at [566]. 71In this case, the principal matters upon which the respondent relied in relation to prejudice were the death of a key witness, J, the loss of records (particularly in records concerning particularly records concerning the 1982 attendance at the applicant on a psychologist, Shirley Allum for six sessions), the "lack of identification of witnesses" and the lack of corroboration of the applicant's allegations of identification of witnesses". 72The death of a key witness, J, is important. It is known that J denied wrongdoing when he was interviewed by DOCS. On the other hand, the applicant's mother is alive and is presumably available to give evidence about the general interaction between the applicant and J. 73It is true that some medical records have been lost. Ideally, the records of Ms Allum would be available. Fortunately, the key records, those of DOCS, have been retained. The applicant's case and that of the respondent will probably turn on the contemporaneous records of DOCS. 74In addition, the respondent argued that causation has been complicated because of the additional assaults by John Stegalls and the babysitter "John". I accept that the occurrence of other episodes of assault is a complicating factor, but I do not accept that the complication is substantial. I note that Mr Rolfe was able to distinguish the relative impact of the non-familial assaults on the applicant from the impact of any assaults by J. 75I find that it is "just and reasonable" to extend the limitation period. 76The limitation period for the commencement of proceedings is extended.

Costs 77Ordinarily, a successful applicant will be required to pay the respondent's costs, unless the respondent's opposition was wholly unreasonable: Holt v Wynter 49 NSWLR 128 per Sheller JA at [21]. 78In this case, the respondent cross - examined the applicant repetitively and, for most of the time, to little effect. At least a day and a half was wasted in this manner. Consequently, I order the applicant to pay the respondent's costs, excluding the costs of 1 ½ days of hearing.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 September 2013

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