SG v State of Queensland; AO v State of Queensland; JO v State of Queensland; SD v State of Queensland; VG v State of Queensland; NY v State of Queensland [2004] QCA 461

Court of Appeal (Qld)|2004-12-03|Before: de Jersey CJ, McMurdo P and Chesterman JSeparate, reasons for judgment of each member of the Court, de Jersey CJ and Chesterman J, concurring as to the orders made, McMurdo, P dissenting

Cramp v McArthur & Anor, unreported, Muir J, SC No 6522 of 2004, 10 August 2004, considered

DA Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582, considered

Gillam v State of Queensland [2003] QCA 566; [2004] 2 Qd R 251, considered

Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139, considered

M Grant-Taylor SC, with K Philipson, for the respondent/appellant

[1] de JERSEY CJ: Each of the respondents applied for leave to start proceedings under s 43 of the Personal Injuries Proceedings Act 2002 (Qld). That section provides:

"(1) The court, on application by a claimant, may give leave to the claimant to start a proceeding in the court for damages based on a liability for personal injury despite noncompliance with this part if the court is satisfied there is an urgent need to start the proceeding.

(2) The order giving leave to start the proceeding may be made on conditions the court considers necessary or appropriate having regard to the particular circumstances of the case.

[2] By a judgment given on 17 December 2003, the first Judge at first instance refused the applications. The unsuccessful applicants (the present respondents) appealed, and on 25 June 2004 the Court of Appeal dismissed their appeals. In the meantime, the respondents, no doubt conscious of the 12 months time limitation under s 31(2) of the Limitation of Actions Act 1974 (Qld), had brought fresh applications for the same relief. On 16 June 2004 (nine days before the Court of Appeal delivered its judgment in respect of the first appeals), the second Judge at first instance granted the relief, subject to certain conditions. (As will emerge, there was a reason why her Honour felt constrained to determine the matter prior to the delivery of the judgment of the Court of Appeal.)

[3] The material relied on by the respective applicants was similar. Each alleged having been subjected to serious physical and psychological abuse while in foster care some years ago. The applicable limitation period for the bringing of proceedings had in each case expired a long time ago. On 18 June 2003, the "Courier-Mail" published articles and an editorial describing years of alleged abuse of fostered children by a particular fostering family. At about that time, the respondents approached the Bravehearts organization for counselling and support. As the matter was presented to the learned Judges, upon the first application inferentially, and upon the second more directly, it was that publication which stirred the respondents to explore any rights of recourse.

[4] The issue arose whether the circumstance of that publication may have enlivened the court's discretion to extend the limitation period under s 31 of the Limitation of Actions Act 1974 (Qld).

[5] The first Judge took the view that on the material before him, it was entirely speculative whether or not an application for extension of the limitation period would succeed: the matter was still only at an exploratory stage. He concluded there was no urgency warranting the making of an order under s 43. Either the contemplated proceedings were out of time, or they could be validated by an order extending the limitation period - in relation to which he could only speculate.

"... I am not satisfied that there is an urgent need to start the proceeding under s.43. Either the proceeding is out of time, in which case there is no urgency shown, or it may become a proceeding which can be proceeded with successfully if leave is given under section 31 of the Limitations of Actions Act to extend the period of limitation, and I just cannot predict on the material available to me whether that will happen and whether the limitation period will be extended to any particular date. At most, all that the applicant ... can show is that he is investigating whether there is evidence to warrant an extension of the period of limitation."

[7] The second Judge considered that the material before her was significantly different from the material which had been before the first Judge, because there was on the earlier occasion "no assertion that the Courier Mail article constituted a fact known to the applicant". Her Honour continued:

"At best the affidavit [before the first Judge] invited an inference to that effect from the fact that the various applicants had made approaches to Bravehearts around the time the article appeared. It is not surprising that his Honour regarded as entirely speculative the question as to whether the limitation period would be extended, and if so, to what date."

"The situation now is considerably clearer. There seems a strong basis for an argument that a material fact of a decisive character became known to the various applicants on 18th of June 2003, when the Courier Mail article appeared."

Her Honour drew that from affidavit material before her, which had not been before the first Judge, in which the solicitor for the respondents deposed to having been informed by the respondents that it was after reading the article in the "Courier-Mail" of 18 June 2003 that they realised they may have a claim against the present appellant which should be investigated.

[8] The evidence put before the second Judge, contained in the respondents' solicitor's affidavit, was as follows:

"25. I am advised by the Applicant and verily believe that although the Applicant knew he had been abused, he did not know he could do anything about it or that the Department be at fault. After reading the article in the Courier Mail on 18 June 2003 he realised he may have a claim against the Respondent and that he should investigate. Thereafter he contacted Bravehearts who put him in contact with Solicitors. I exhibit hereto marked "SJH5" a copy of the Courier Mail article dated 18 June 2003.

26. It appears the most likely date of material fact is 18 June 2003 however we cannot be certain without further enquiry and medical evidence.

27. The applicant may have therefore only become aware on 18 June 2003 of the following:-

a.

that the abuse carried out by his foster family and other simular (sic) families was not only perpetrated against other children but was much more widespread than the applicant has believed at the time of the abuse or since

b.

the applicant has always believed that he was the only victim of abuse perpetrated by a member(s) of Foster Families;

c.

not withstanding any actual knowledge of the abuse by the respondent it is also submitted that as a result of the extensive abuse now uncovered by Queensland Police Service and CMC enquiry and which occurred over a long period of time that it is more likely to have been suspected or known about by the respondent at the time of the individual abuses and since; however, until 18 June 2003 the applicant was unaware of this.

d.

The applicant was not aware that a criminal investigation had taken place until on or after 18 June 2003.

28. The applicant has real prospects, in light of the aforementioned, in establishing that these are material facts pursuant to section 31 of the Limitations of Actions Act 1974."

[9] I find problematic the view that the material before the second Judge was significantly different. Whether reliance on the newspaper publication was established directly, or inferentially, does not really matter. The relevant point could only be, reliance or not. Reviewing their reasons, each Judge appears to have proceeded on the basis the publication activated the respondents' interest in exploring legal recourse.

[10] As to the weight of the new material, one notes the tentative quality of the position presented in para 27 of the affidavit, which only speaks of possibilities. I do not consider the opinion advanced in para 28 is justified by the content of the preceding paragraphs.

[11] At the time the second Judge determined the applications, the period of 12 months following the publication on 18 June 2003 (s 31(2) Limitation of Actions Act) was about to expire. Her Honour, accepting the view advanced in para 28 of the affidavit, reasoned as follows:

"There seems a strong basis for an argument that a material fact of a decisive character became known to the various applicants on 18th of June 2003, when the Courier Mail article appeared. However, that will not avail the applicants if the 18th of June [2004] passes without commencement of the proceedings. There is, therefore, an element of urgency which, clearly, was lacking before [the first Judge] at the time of the application before him. On any view, there was then at least six months to run before a likely extension period expired. The bringing of this application does not, therefore, amount to an abuse of process."

[12] In relation to a particular submission, her Honour expressed the view that s 43 "permits the bringing of an application where the limitation period has expired". She made an order granting leave under s 43, but conditional upon each applicant's making application pursuant to s 31(2) of the Limitation of Actions Act for an extension of the period of limitation, in accordance with certain directions she made.

[13] The grounds of appeal are in each case as follows:

"2.1 The learned judge at first instance was in error in declining to rule that, by reason of the dismissal by Douglas J on 17 December, 2003 of an application by the applicant[s] [being SC No 11319 of 2003, SC No 11321 of 2003, SC No 11295 of 2003, SC No 11299 of 2003, SC No 11301 of 2003] for relief relevantly indistinguishable from that sought by the applicant, and upon material relevantly indistinguishable from that relied upon by the applicant, in [his or her] originating application filed 11 June, 2004, the latter application was an abuse of process and ought to be dismissed.

2.2 The learned judge at first instance was in error, as a matter of law, in holding that sec. 43 of the Personal Injuries Proceedings Act 2002 empowered the court to grant leave to commence a proceeding after the limitation period in respect of the applicant's cause of action had expired.

2.3 The finding of the learned judge at first instance that there was an urgent need for the applicant to start a proceeding was against the evidence and the weight of the evidence.

2.4 In granting the applicant leave to start a proceeding, the exercise of the discretion of the learned judge at first instance miscarried."

[14] Ground 2.1 raised the question of the sustainability of an application for relief, where the same relief has previously been refused in an application between the same parties on the same or at least very similar evidence. The Victorian Court of Appeal considered the point in DA Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582, where the majority view was that the subsequent application should be stayed as an abuse of process. A majority of the New South Wales Court of Appeal reached a contrary conclusion in Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139, rejecting the contention of the Nominal Defendant that "only one application should be permitted unless there has been a change of circumstances, or unless the second application rests on evidence which could not, with reasonable diligence, have been obtained for use in the first application" (p 147).

[15] After the hearing of the appeals, and after the respondents' Counsel's presentation of comprehensive written submissions on the question, the appellant somewhat surprisingly abandoned reliance on grounds 2.1 and 2.4, which had raised issues central to the appellant's response to the applications at first instance. It is accordingly necessary to deal only with grounds 2.2 and 2.3. The appellant should however be ordered, whatever the outcome of the appeals, to pay in each case the respondent's costs, to be assessed, thrown away by reason of the abandonment of grounds 2.1 and 2.4.

[16] I turn to ground 2.2. The appellant submitted that leave could not be granted, under s 43, where the limitation period had already expired. In the decision of the Court of Appeal dismissing the appeals against the first Judge's refusal of relief ([2004] QCA 215), Jerrard JA contemplated that leave might be granted under s 43 notwithstanding the expiration of the limitation period, provided the applicant had grounds for securing an extension under s 31 of the Limitation of Actions Act.

"I consider that the relevant urgency may also be demonstrated where the court is satisfied on a s 43 application brought before a Limitation Act application that the applicant has an argument to advance for the extension of a limitation period in which, if successful, time would be running out when the s 43 application was brought. The learned [first instance] Judge was sympathetic to that construction..."

[18] Muir J agreed "generally" with the reasons of Jerrard JA, although he expressed "no views on the...ambit of operation of s 43".

[19] In the view of the other member of the court, Williams JA:

"Here ... the limitation period applicable in each case had already expired when the application under s 43 was made. Further, the material relied in support of the application under s 43 did not establish that any of the appellants was in possession of material which would provide the basis for the court making an order under s 30 and s 31 of the Limitation of Actions Act.

In effect the appellants were seeking to obtain an extension of the applicable limitation period by obtaining an order under s 43. In my view s 43 on its proper construction does not empower the court to do that. On its proper construction s 43 can only operate where the original or extended limitation period has not expired."

[20] In a later first instance case, Cramp v McArthur & Anor, unreported, SC No 6522 of 2004, 10 August 2004, Muir J said, of that arguable difference in view:

"There appears to be a divergence of viewpoint between Williams JA and Jerrard JA on that issue. I was the other member of the Court and found it unnecessary then to express any view on the question and it is unnecessary for the purposes of determining this application to decide the point. I content myself with the observation that I can see no compelling reason why a remedial provision such as section 43 should be construed restrictively."

[21] It is of assistance to note the confirmation in Gillam v State of Queensland [2003] QCA 566 of the unfettered character of the s 43 discretion. I agree with the observation of Muir J just quoted.

[22] I consider the requisite "urgency" could be demonstrated where, although an extension of the limitation period had not already been secured, the expiration of the 12 months period under s 31(2) was imminent and the applicant could demonstrate a reasonably arguable case for the granting of an extension. In this case, however, the material before the second Judge left that issue only marginally less speculative than was the position before the first Judge, which takes me to ground 2.3.

[23] In his reasons for judgment on the appeals brought from the determination of the first round of applications, Jerrard JA put the matter as follows (17 December 2003 was the date of determination of the first applications):

"If investigations by the solicitor do result in establishing a material fact of a decisive character in any one or more or all of the cases, not known to that appellant until after the expiry of the ordinary limitation period, the material put before the learned judge and this court made it just as likely that those investigations would show that even a notionally extended limitation period had already expired by December 2003, as that they would show time was then running; and even possible that they would show the material facts had not come to the relevant appellant's knowledge by then. Each appellant accordingly lacked in December 2003 both the grounds to show that appellant had an argument to advance for the extension of a limitation period in which time would then be running in December 2003, and lacked grounds on which the learned judge could find the required urgency."

I consider that position still obtained at the time of the second round of applications. The matter remained in the limbo of speculation, and some, if indirect, support for that may be drawn from the circumstance that by the time of the second applications, no applications for extension of the limitation period had in fact been made.

[24] The applications the subject of these appeals should have been refused on the ground that "urgency" within the meaning of s 43 was not established, essentially for the reasons expressed by the Judge who determined the applications first in time.

(a) that the appeal be allowed, with (subject to (d)) costs to be assessed;

(b) that the orders made in the Trial Division on 16 June 2004 be set aside;

(d) that the appellant pay the respondent's costs, to be assessed, thrown away by reason of the abandonment of grounds of appeal 2.1 and 2.4.

[26] McMURDO P: The learned Chief Justice has stated the relevant facts, issues and statutory provisions. I will only repeat and add to those as necessary to explain my reasons for reaching a different conclusion and refusing each appeal.

[27] Each respondent claims to have suffered very significant personal injuries resulting from abuse suffered whilst a child in the care of the appellant in the later decades of last century. The three year limitation periods applicable to their claims under the Limitation of Actions Act 1974 (Qld) ("the limitations statute") have all long expired so that to bring their claims they must succeed in an application to extend the limitation period under s 31(2) of the limitations statute. At the time of hearing these appeals these applications had not been argued. The respondents contend that on 18 June 2003 they may first have become aware of material facts of a decisive nature relating to the claim against the appellant.[1]

[28] The relevance of 18 June 2003 is that on that day The Courier-Mail published an article alleging that:

"A QUEENSLAND foster family was entrusted with the care of dozens of children for more than a decade despite the Families Department repeatedly being told of evidence of continuing sex abuse. Two girls under 10 got venereal diseases while with the family in care but were not removed.

No children were removed despite authorities admitting that the family should not be responsible for children.

Authorities removed 16 children from two houses northwest of Brisbane on May 30.

But there are concerns over as many as 50 child victims.

Child abuse support group Bravehearts initiated the action after being contacted by a victim.

But Families Department documents show officers knew of abuse dating back to 1990 but failed to act.

Bravehearts has provided the Commissioner for Children with documents after being approached by the victim, now 25.

Bravehearts executive director Hetty Johnston said she was horrified at the extent of the abuse and the documented failure of four successive governments to stop it.

'It appears that children are being sexually assaulted under a veil of secrecy legislated by government,' she said.

Department documents reveal a disturbing history of an extended 'secret family network' headed by an elderly couple who began fostering after a court gave them custody of five children in August 1988.

Families Department case files show the couple's son, in his 40s, and daughter, in her late 30s, were alleged to be involved in the sexual and physical abuse, along with others in the house.

Documents show the department at one stage lost count of the number of children under the couple's care and that case officers were refused entry to the house and could not verify sleeping arrangements. They also show that a girl was complaining of sexual abuse as early as December 1990.

Three years later two young girls under the couple's care had contracted venereal disease.

The documents report: 'Of significant importance is that the concerns are not about low-level harm or risk to the children, but are serious child protection concerns' ... 'specifically the possible sexual abuse and physical discipline/abuse using implements'.

Bravehearts office administrator Rachael Bon who has been supporting indigenous victims of the family, has asked anyone experiencing abuse under a foster situation to come forward."

"THE files tell harrowing stories of a house of horrors stretching back a decade but going unchecked despite the knowledge of the Families Department that children were in danger and being severely harmed. ..."

[30] One of a number of illustrations to the article was a photograph of an edited Departmental file note apparently confirming some of these allegations.

[31] Each respondent brought an unsuccessful application in December 2003 and then a successful application in June 2004 under s 43 Personal Injuries Proceeding Act 2002 ("PIPA") for leave to start a proceeding in court for damages for personal injuries caused by the appellant's negligence, breach of statutory and fiduciary duty and unconscionable conduct. These appeals are from the successful second applications. A major difference between the facts before the court on the first and second applications was the second application was made just short of 12 months from the publication of the Courier-Mail article; s 31(2) of the limitations statute enabled the limitation period to be extended to 12 months from 18 June 2003, a date which, at the time of the second application, was fast approaching. The respondents contended that at the time of the second application there was therefore an urgent need to start the proceedings justifying the grant of leave under s 43 PIPA.

[32] The discretion given to a judge under s 43 PIPA is unfettered: Gillam v State of Queensland & Ors.[2] Different judges may reasonably reach different conclusions on the same or similar material. This Court will not lightly interfere with the exercise of that discretion unless it was unreasonable or clearly unjust or it arose from error of fact or law or failure to take into account a material consideration or from giving undue weight to any circumstance or matter: House v The King.[3]

[33] The Chief Justice, with whom Chesterman J agrees, has stated that, because the expiration of the one year extended period under s 31(2) of the limitations statute was then close to expiring, the respondents to each appeal were entitled to succeed in their second application under s 43 PIPA, made in June this year, if they demonstrated a reasonably arguable case for the granting of an extension of the limitation period.[4] That is undoubtedly so but the plain words of s 43 PIPA, which are remedial in effect and should be broadly construed, do not make success in an application under that section dependent also on demonstrating a reasonably arguable case for an application for an extension of the limitation period. On the other hand, if there are clearly no prospects of succeeding in any necessary application for an extension of the limitation period, then it would be futile to grant the application under s 43 PIPA and it should be refused. In my view it is sufficient for a court to give leave under s 43 PIPA to a claimant to start a proceeding despite non-compliance with Pt 1 Ch 2 PIPA if the court is satisfied there is an urgent need to start the proceeding, for example, that the expiration of the 12 month period under s 31(2) of the limitations statute is close and the claimant has some realistic, not merely fanciful, prospects of succeeding in an application for an extension of the limitation period.

[34] The judge in the second application the subject of these appeals was satisfied there was a significant difference between the material before her and that before the first judge hearing the original December application under s 43 of PIPA,[5] noting:

"As before Justice Douglas, there was no assertion that the Courier-Mail article constituted a fact known to the applicant. At best the affidavit invited an inference to that effect from the fact that the various applicants had made approaches to Bravehearts around the time the article appeared. It is not surprising that his Honour regarded as entirely speculative the question as to whether the limitation period would be extended, and if so, to what date.

The situation now is considerably clearer. There seems a strong basis for an argument that a material fact of a decisive character became known to the various applicants on 18th of June 2003, when the Courier Mail article appeared."

[35] The learned primary judge gave leave to each respondent under s 43 PIPA to start proceedings, which were immediately stayed as required by s 43(3) PIPA until compliance with Pt 1 of Ch 2 PIPA. Her Honour also made each grant of leave conditional upon the respondent filing and serving the application for an extension of the limitation period no later than 31 August 2004 and returnable no earlier than 30 November 2004 and requiring that each respondent swears personally to the issue of when it was that, and the circumstances under which, a material fact or facts of a decisive character relating to the cause of action were first within each respondent's means of knowledge.

[36] Because the appellant has abandoned the grounds of appeal alleging abuse of process, the distinction between the material before the first judge and that before the second judge is not of great significance. The issue has become whether the material before the second judge was sufficient for her Honour to grant the applications under s 43 PIPA.

[37] Some of the relevant material before her Honour is set out in the Chief Justice's reasons at para [7] and I need not repeat it. An affidavit from the respondents' solicitor, Mr Harrison, referred to his great difficulty in obtaining instructions from the respondents to even partially complete the notice of accident claim form required under PIPA; they became distressed when discussing relevant matters and he had difficulty obtaining their trust because they perceived him as an authority figure when past authority figures have caused them injury. Mr Harrison attested to his opinion that each respondent "has real prospects, in light of the aforementioned, in establishing that these are material facts pursuant to section 31" of the limitations statute. Other material before her Honour demonstrated that the respondents' legal representatives were genuinely attempting to obtain material to support the application for an extension of the limitation period from the Department of Families, from schools attended by the respondents and relating to police investigations of their carers; they had arranged for respondents to be medically examined so as to obtain medico-legal reports. Most significantly, the material, unlike that before the judge in the first application, established urgency in that the date one year after, at least arguably, some material facts of a decisive character[6] became known to the respondents through the Courier-Mail article was about to expire. Without the order sought under s 43 PIPA, then even if the anticipated applications for an extension of the limitation period were successful, the respondents could never commence their claims against the appellant.

[38] The unusual circumstances surrounding the respondents' potential claims against the appellant make it difficult for each respondent to presently precisely articulate what material fact or facts each will rely on in the anticipated applications for an extension of the limitation period. On the material before her Honour it can, however, be said that each respondent arguably became aware on 18 June 2003 when reading the Courier-Mail article of the material facts that abuse of children in the appellant's care at about the time each respondent was injured may have been systemic and recorded in Departmental documents and case files; these documents and files may still exist and may show that the appellant placed the respondents when children with carers who injured them, knowing of complaints about the unsuitability of those carers. The material before her Honour was certainly insufficient for the respondents to succeed in applying for an extension of the limitation period under s 31(2) of the limitations statute but that did not mean it was also insufficient to establish that the respondents had realistic, not merely fanciful, prospects of succeeding in an application under s 43 PIPA. It was capable of demonstrating that each respondent had real, not merely fanciful, prospects of mounting a reasonably arguable case for the granting of an extension of the limitation period, even though they had not then obtained all the material necessary to succeed in such an application.

[39] As 18 June 2004 was rapidly approaching at the date of the application before her Honour, her Honour was entitled to find on the material there was an urgent need to start the proceedings under s 43 PIPA. The learned primary judge did not err in holding that s 43 PIPA empowered the court to grant leave to commence a proceeding after the respondents' limitation period had expired. Nor am I persuaded that her Honour erred in determining that there was an urgent need to start each proceeding. I would refuse each appeal with costs to be assessed.

[40] CHESTERMAN J: I agree with the reasons for judgment prepared by the Chief Justice and with the orders proposed by his Honour.

[2] [2003] QCA 566; [2004] 2 Qd R 251, Jerrard JA 258, [23] and Dutney J 261, [37].

[4] See the reasons of the Chief Justice, [22]; SG v State of Queensland [2004] QCA 215; Appeal Nos 376-381 of 2004, 25 June 2004, Jerrard JA, [24] and Cramp v McArthur & Anor, unreported, Muir J, SC No 6522 of 2004, 10 August 2004, p 3.

[5] See O v State of Queensland & Ors [2003] QSC 463; BS No 11301, BS 11299, BS 11321, BS 11295, BS 11319 and BS 11287 of 2003, 17 December 2003.

At a glance

Court

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Judgment (91 paragraphs)

Cases Cited (2)