Rich v Kitchingman & Anor

CATCHWORDS : PRACTICE AND PROCEDURE - Application for extension of time application to be heard at some time as trial - plaintiff sexually assaulted as child - whether same issues would arise - whether plaintiff would be exposed to undue hardship by being cross-examined at two hearings - whether outcome of extension of time application might shorten or obviate need for final hearing.

CASES CITED : State of NSW v Harlum [2007] NSWCA 120

Shane Rich - Plaintiff PARTIES : Allan Kitchingman - First Defendant Anglican Church Diocese of Sydney - Second Defendant

F Tuscano - Plaintiff COUNSEL : P Braham - First Defendant No Appearance - Second Defendant

Maurice Blackburn Cashman - Plaintiff SOLICITORS : Turnbull Hill Lawyers - First Defendant No Appearance - Second Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: Nature of Application By statement of claim filed 17 July 2006 the plaintiff commenced proceedings against the defendants alleging that he was subjected to sexual and physical assault during 1975 and 1976 as a result of the conduct of servants and agents of the second defendant, in particular the first defendant. The proceedings against the second defendant have been settled. The terms on which that matter were settled are unknown. 2 Although the first defendant had not at the time of this application filed a defence, he was legally represented. His counsel advised the court that a defence would be filed in the near future and it would raise amongst other things the provisions of the Limitation Act 1969 (NSW). Counsel for the plaintiff advised the court that he was aware of this and was not taken by surprise. The plaintiff proposed to rely upon s60G and s52 of the Limitation Act to overcome the proposed limitation defence. 3 Before me the plaintiff seeks an order that any application for an extension of time, to the extent that it is necessary, should be determined when the matter is finally heard and not by way of a separate preliminary hearing. This application is opposed by the first defendant.

Factual background 4 The question of whether the plaintiff was sexually assaulted by the first defendant is not in issue. The first defendant pleaded guilty in 2002 to five counts of indecent assault and has served a sentence of imprisonment. 5 In support of the application the plaintiff relied upon the affidavit of his solicitor, which had attached to it a report from a Dr Evelyn Howe, clinical psychologist, dated 6 June 2005 and a report of Dr Anthony Dinnen, consultant psychiatrist, dated 30 October 2006. The affidavit also had annexed to it the remarks on sentence of Judge Coolahan when he sentenced the first defendant in August 2002. A statement from the plaintiff as to his history was also before the court. 6 The effect of the report of Dr Howe was that the plaintiff has for many years suffered from a post-traumatic stress disorder, depression and a borderline personality disorder. The psychologist attributed those conditions, at least in part, to the sexual assaults and other treatment to which the plaintiff was subjected between 1975 and 1976. Dr Dinnen in his report reached the same conclusion as to diagnosis. He went somewhat further and in terms of the Limitation Act expressed the opinion that for a period of 30 years the plaintiff had been incapable or substantially impeded in the management of his affairs by reason of his mental condition. 7 The plaintiff was born in September 1961 and is now 46. He has been drug and alcohol dependent since 15 years of age. The drugs which he has mainly used are cannabis, heroin and speed. The plaintiff says that he overcame his problems with alcohol in 1997 but that he remains addicted to speed and heroin. As a result of his intravenous drug use he has contracted hepatitis C. 8 The plaintiff has a long criminal history commencing with a stealing offence when he was 17. The plaintiff has undergone two periods of imprisonment, the first was for 4 years with a non-parole period of 2 years for the offence of aggravated sexual intercourse without consent. He was imprisoned for 6 months in July 2005 for the offences of larceny, maliciously destroying property, common assault and breach of bail conditions.

Submissions 9 Section 52 of the Limitation Act provides: "52(1) Subject to subsections (2) and (3) and subject to section 53, where: (a) a person has a cause of action, (b) the limitation period fixed by this Act for the cause of action has commenced to run, and (c) the person is under a disability, in that case: (d) the running of the limitation period is suspended for the duration of the disability, and (e) if, but for this paragraph, the limitation period would expire before the lapse of three years after: (i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or (ii) the date of the person's death, (whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates. (2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period. (3) This section does not apply to a cause of action to recover a penalty or forfeiture or sum by way of penalty or forfeiture, except where the person having the cause of action is an aggrieved party." 10 Section 11(3)(b) defines disability as follows: "(3) For the purposes of this Act a person is under a disability:

… (b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (i) any disease or any impairment of his or her physical or mental condition, (ii) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1958 , (iii) war or warlike operations, or (iv) circumstances arising out of war or warlike operations." 11 The plaintiff submits that the contest relating to the Limitation Act is likely to be hard fought and occupy a considerable amount of time. It is likely to take as long as the final hearing of the matter. Accordingly, it would be more efficient for both the limitation question and the final hearing to be heard together. 12 The plaintiff points out that the limitation question could involve the cross-examination of doctors. Those same doctors are likely to be called at the final hearing and so a duplication of costs would be involved if there were separate hearings. Generally speaking the plaintiff submits that if a separate hearing were allowed on the limitation question, two potentially lengthy and expensive hearings would be involved. The proposal by the plaintiff would allow one trial to deal with all issues and would produce the most cost effective result for both parties. 13 The plaintiff also submits that two hearings would involve the plaintiff in undue hardship. The plaintiff as a victim of child sexual abuse will be required to be cross-examined on two occasions in relation to these very painful events in his past. The psychiatric evidence is that this is very difficult for him and causes him considerable stress. 14 The first defendant submits that the two hearings involve different issues and that there is no real overlap. The issues to be dealt with in the limitation hearing are whether the s60G gateways can be accessed by the plaintiff and whether he has established disability of such a kind as to enable him to have the benefit of s52. 15 The first defendant points to a practical difficulty in dealing with the limitation question during the final hearing. There is a danger that there will be an elision of the questions to be decided by the court and that they will not be kept separate. It is difficult to argue questions of prejudice relevant to the limitation question while at the same time attempting to run a trial. Accordingly the more practical and fair way of dealing with the matter is to have two separate hearings. 16 The first defendant pointed to the obvious advantage that if the limitation question were decided adversely to the plaintiff this would bring proceedings to an end thereby potentially saving substantial costs. If the plaintiff were successful in his application, there would be no duplication of the evidence of the doctors (if they were called) at the trial. This is because their evidence would be directed to different questions in each proceeding. 17 The first defendant submitted that the plaintiff would not be exposed to undue hardship in that there would be no occasion for him to give evidence about the sexual assault episodes during any hearing on the limitation question. That hearing would be concerned primarily with the plaintiff's mental condition and his capacity to manage his affairs.

Consideration 18 The matters to be taken into account when considering the applicability of s52 of the Limitation Act were recently considered by the Court of Appeal in State of NSW v Harlum [2007] NSWCA 120. It is clear from the analysis in that case that the issues likely to arise on a hearing of the limitation question would be quite different to those likely to arise at the final hearing. This is true both of the factual and medical matters. At the limitation hearing the factual focus would be upon the plaintiff's state of health and ability to make rational decisions. The medical evidence would be directed to the same issues. At the final hearing the factual focus would be upon the plaintiff's present state of health and those features which established a causal relationship between the acts complained of and the damage suffered. The medical evidence at a final hearing would also be directed at the causation issue. 19 It seems to me most unlikely that any cross-examination of the plaintiff as to the circumstances of the sexual assaults would occur at a hearing of the limitation question. Such matters are not relevant to the issues to be decided at that hearing and cross-examination directed to them would almost certainly be rejected by the judge hearing the matter. 20 There is also considerable force in the submission that given the complexity of the issues likely to arise on the limitation hearing, that this is a matter which ought be dealt with separately. On my reading of the factual material the more significant hearing in this matter is likely to be that relating to the limitation defence. If the plaintiff can successfully overcome that obstacle, apart from the causation issues, the final hearing is likely to be straightforward given the admissions made by the first defendant and his conviction for sexual assault offences against the plaintiff. 21 Finally, taking into account the requirements of s56 of the Civil Procedure Act, ie that the focus of the court ought be upon the "just quick and cheap resolution of the real issues in proceedings", it seems to me that this matter would be more efficiently and fairly dealt with if the hearing of the limitation question was kept separate from the final hearing. If the plaintiff were unsuccessful in obtaining an extension of time within which to file the statement of claim then subject to appeal that would be the end of the matter. No court time and resources would be wasted in dealing with the causation and damages questions likely to arise at the final hearing. This could involve a significant saving in time and resources. 22 It follows from the above analysis that I am not prepared to make the orders sought by the plaintiff. In my opinion any application for an extension of time by the plaintiff or for the running of the limitation period to be suspended pursuant to s52, should be heard separately from the final hearing of the matter. 23 In relation to costs the normal rule is that costs should follow the event. My inclination is to order that the plaintiff pay the first defendant's costs of the application. Since, however, the parties have not had the opportunity to address me on the question of costs, I will make no final order on that issue so as to enable the parties to put submissions as to costs if they wish. 24 The orders which I make are as follows:

(1) I decline to grant the plaintiff's application that any limitation questions be dealt with at the same time as the final hearing.

(2) I reserve the question of the costs of this application. **********

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