The Statute of Limitations Ground
77This requires close attendance to the procedural chronology.
78In April 2008, Mr Withyman filed his statement of claim. On 30 June 2008, he filed a notice of motion seeking leave to institute proceedings under the Felons Act, s 4, which was in the following terms:
"A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application."
79The motion was called on for hearing on 20 August 2008. Both defendants (the State and Ms Blackburn) sought leave to appear given the terms of s 7 of the Felons Act, as follows:
"At the hearing or determination of an application or appeal under this Act, except by the leave of the court to which the application or appeal is made:
(a) the applicant or appellant, as the case may be, is not entitled to appear in person, and
(b) the person who would, if the proceedings to the institution of which the application or appeal relates were instituted, be the defendant in those proceedings, is not entitled to appear or be represented."
80On that day, McLoughlin DCJ gave a short extempore judgment and granted leave for the State and Ms Blackburn to appear.
81The issue before McLoughlin DCJ was whether leave should be granted. The purpose of the leave provision was as set out in Patsalis v State of New South Wales [2012] NSWCA 307 at [4]:
"The purpose of the leave provision was to ameliorate the perceived harshness of the doctrine of attainder. The leave requirement was also to prevent abusive proceedings: see s 7 and generally the Second Reading Speech of the Attorney General (New South Wales Parliamentary Debates, 1980-1981, Third Series, Vol 160 at 4813-4814)."
It was in this statutory and forensic context that the issues were to be litigated.
82In that context, the defendants sought to show that the proceedings were abusive because they were statute barred. One of the matters that Mr Sergi took objection to in the debate about whether leave should be given was that the defendant "seeks ... to turn this into some form of mini hearing of the merits of the case": Transcript, 20 August 2008, p.8 (30). Mr Sergi correctly identified the limitation question as not one requiring a discretionary extension of time but the pleading of the cause of action and a defence being put on by reference to the new limitation period of three years from discoverability: Limitation Act 1969 (NSW), ss 50A-50F (Pt 2 Div 6). Of particular relevance are ss 50A, 50C, 50D and 50F which are in the following terms:
" 50A Application of Division-kinds of causes of action
(1) This Division applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.
(2) This Division applies only to causes of action where the act or omission alleged to have resulted in the injury or death with which the claim is concerned occurs on or after the commencement of this Division (as inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002).
(3) This Division does not apply to a cause of action on a claim under the Motor Accidents Compensation Act 1999.
(4) This section extends to a cause of action that:
(a) is a survivor action, or
(b) is a compensation to relatives action.
....
50C Limitation period for personal injury actions
(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:
(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,
(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.
(2) For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times:
(a) the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased,
(b) the appointment of the plaintiff as the deceased's personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment,
(c) the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased's personal representative.
(3) For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased.
50D Date cause of action is discoverable
(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:
(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.
....
50F Effect of disability on limitation period
(1) If a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability.
(2) A person is under a disability while the person:
(a) is a minor, but not while the minor has a capable parent or guardian, or
(b) is an incapacitated person for a continuous period of 28 days or more, but not while the person is a protected person.
(3) In determining when a cause of action is discoverable by a person who is a minor, or an incapacitated person, who is not under a disability, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the incapacitated person are taken to be facts that are known or ought to be known by the minor or incapacitated person.
(4) In this section:
capable parent or guardian of a minor means a person who is a parent or guardian of the minor and who is not under a disability (as referred to in subsection (2)).
guardian of a minor includes a person who under a written law of the State is exercising the parental responsibilities of the Minister under the Children and Young Persons (Care and Protection) Act 1998 for the minor.
incapacitated person means a person who is 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:
(a) any disease or any impairment of his or her physical or mental condition, or
(b) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1990, or
(c) war or warlike operations or circumstances arising out of war or warlike operations.
protected person means:
(a) a person in respect of whose person another person is guardian, whether under the Guardianship Act 1987 or any other Act or law, or
(b) a person in respect of whom an order is in force under the NSW Trustee and Guardian Act 2009 or the Guardianship Act 1987 that the estate (or any part of the estate) of the person be subject to management under the NSW Trustee and Guardian Act 2009.
(5) Sections 52 (Disability) and 53 (Notice to proceed) do not apply to a cause of action to which this Division applies."
83Having granted the defendants leave to appear, McLoughlin DCJ heard argument on the motion under the Felons Act. It is only necessary to examine how the parties treated the limitation question. After evidence was led, on 30 September 2008 (Black vol 1, p. 23) the judge asked what had to be established on the motion. Mr Sergi, for Mr Withyman, answered (substantially correctly) as follows:
"SERGI: A prima facie case your Honour. Your Honour has to be satisfied there's a prima facie case.
HIS HONOUR: That's all that's got to be established?
SERGI: Yes your Honour, yes your Honour ..."
84The judge then proceeded on that basis. Mr Parker (for the State) accepted that framework saying (Black, vol 1, p. 25):
"PARKER: In my submission it would be an abuse of process for two reasons. One is, the proceedings are out of time unless this person is incapable of managing his affairs.
HIS HONOUR: So you say that it would be an abuse of process if the plaintiff had -
PARKER: If the plaintiff was capable of providing instructions and doesn't require a tutor, then these proceedings are out of time.
HIS HONOUR: Well it may or may not be, but are there any orders sought in respect of that?
PARKER: No your Honour, remember your Honour will recall this was raised on the first hearing date before your Honour."
The question of a relationship between the limitation question and the appointment of a tutor had already been raised. On 20 August 2008, Mr Parker had said to the judge (Black, vol 1, 1M):
"PARKER: One of the issues in the case is whether the plaintiff is disabled or not, whether he requires a tutor."
85Mrs Withyman, who had been appointed as tutor, was cross-examined by Mr Parker (for the State) on 30 September. He asked her questions seeking to distinguish a learning disability from an intellectual disability, such matters being relevant to the question of discoverability. Medical evidence was also tendered by the defendants.
86In addressing the judge in the afternoon of 30 September, Mr White (for Ms Blackburn) commenced by directing himself to the limitation question, as follows (Black, vol 1, pp 61 - 62):
"WHITE: Your Honour, in the statement of claim, the plaintiff relies upon section 50F of the Limitation Act to extend the usual three year period of discoverability which is under section 50D for the filing of his claim. And relies upon the fact that the plaintiff was under a disability in respect of being an incapacitated person as defined in section 50F(4) of the Act. In other words your Honour, the second limb of section 50F(2) that the plaintiff was under a disability in that he is an incapacitated person is the reason why this statement of claim was filed outside the usual three year period. Now it's my understanding your Honour that in relation to the application, the plaintiff's motion that the leave be granted in that he needs to show that it's not an abuse of process, it's the second defendant's submission that unless he can be shown to have filed his statement of claim within time it will amount to an abuse of process and oughtn't be ..."
This recognised that the threshold was abuse of process.
87Submissions then took place as to whether there was a disability, including submissions on the medical evidence. In addressing the medical evidence on that question, the following exchange took place between the judge and Mr White (for Ms Blackburn) (Black, vol 1, p. 65):
"HIS HONOUR: Is that issue just one on prima facie basis?
WHITE: Well, yes, I think so, your Honour, yes.
HIS HONOUR: Yes, under the legislation."
Thus, the matter was still being addressed (correctly) as one of a prima facie view or whether it was an abuse of process. To view the matter thus, in effect, only required the plaintiff to persuade the judge that the likely defence under Part 2 Div 6 of the Limitation Act may not succeed, that there was a prima facie case for the plaintiff. If, of course, on the application, the defendants were able to persuade the judge that the limitation defence was bound to succeed, it would be open for the Court to conclude that there was no prima facie case in that it would be an abuse of process to allow it to proceed.
88Mr Parker (for the State) put his submissions on the limitation question as the plaintiff being out of time. For the reasons just discussed, to succeed in resisting leave, he had to put it categorically. He also submitted that Mr Withyman did not need a tutor: Black vol 1, pp. 77-78. But Mr Parker clearly accepted that the matter was to be approached on a prima facie basis. In discussing discoverability, the following exchange took place between the judge and Mr Parker (Black, vol 1, p. 78):
"HIS HONOUR: But again I take it it's a question on a prima facie basis.
PARKER: Yes your Honour.
HIS HONOUR: The onus being on the plaintiff?
PARKER: Yes your Honour ..."
89Then Mr Sergi (for Mr Withyman) addressed the judge. He began by correctly characterising the relevant parts of the defendants' arguments, as follows (Black, vol 1, p. 84):
"HIS HONOUR: Both the defendants say there's no prima facie case because (1) he's not disabled in accordance with the legislation and (2) is the question of he's outside the three year period.
SERGI: They seem to be the issues. I will come to them -
HIS HONOUR: And (3) Mr Parker submits that it's not - the conduct - the relationship is not tortious.
SERGI: Yes."
The judge accepted this (Black, vol 1, p. 84):
"HIS HONOUR: They are the three main areas as I see the defendant's submissions."
90McLoughlin DCJ delivered judgment on 19 November 2008. Before analysing the terms of that judgment, the following is clear from the history of the application under the Felons Act that I have set out. First, the issue was one of a threshold point: Was the claim an abuse of process or was there a prima facie case? Secondly, all parties, at all times, accepted in argument that the issue was one of the stated threshold point. Thirdly, there was no suggestion that the plaintiff's motion under the Felons Act was being supplemented by some undocumented motion to try a substantive issue in a case that had not been granted leave. Indeed, defences were not filed until 2009.
91In a judgment carefully rehearsing the evidence, at pp 15ff his Honour recited the submissions about the relevant sections of the Limitation Act and Mr White's submission that the evidence did not disclose a disability. At pp 18ff the judge recorded Mr Parker's submission that the "matter is out of time". At pp 20ff the judge recorded Mr Sergi's submission that the injury was not discoverable until the receipt of Ms Robilliard's report on 8 January 2008. At pp 27ff the judge dealt with the limitation question. It can be accepted that his language was consistent with a resolution of the issue. At pp 34-35 his Honour said the following (White, pp. 43 - 44):
"In those circumstances I am well satisfied the plaintiff would not have been aware of any serious injury until he was assessed by Ms Robilliard and would not have been in a position to determine the fault of the second defendant until some person was in a position to point out to him that teachers had a duty of care not to commence an emotional or physical relationship with a student, more so when student is somewhat psychologically impaired and suffer from behaviour problems. The plaintiff did not recognise this during the term of the relationship and when the history is given does not really appear to have understood that until recent times. As it is the plaintiff must know each of the facts set out in sub paras A, B and C and I am of the view the plaintiff did not know each of those facts until receipt by his solicitors of the report by Ms Robilliard in February 2008.
I have dealt with the proposition that has been put that there was enough for the plaintiff to have done more to ascertain the proposition before that time, in my view there was not. When one looks at the psychiatric opinion that I have expressed and the impairment with which the plaintiff suffered I do not accept those propositions. Accordingly I am well satisfied that the cause of action was not discoverable as referred to under s 50D of the Limitation Act until February 2008 and there is no defence available to the defendants pursuant to the provisions of the Limitation Act."
92From the context I have given, it is plain that it was no part of the resolution of the motion for a decision to be made that a limitation defence would fail or failed. Rather, if the defendants could show that such a defence must succeed, it could be concluded that the institution of the proceeding was an abuse. No party argued the matter beyond it being necessary for the plaintiff to show that he had a prima facie case that was not an abuse of process in the context of the possibility of a limitation defence. The judge's reasons for the interlocutory order granting leave to proceed must be examined in that light.
93On 20 March 2009, the State filed a defence which pleaded that the claim was statute barred.
94On 2 April 2009, Ms Blackburn filed a defence without the assistance of a legal practitioner. It was a document of some pages that told her side of the story, denying any sexual relationship. It did not plead a limitation defence. On 16 September 2009, Ms Blackburn, now legally represented, filed an amended defence which pleaded that the claim was statute barred.
95On 22 February 2010, the plaintiff filed an amended statement of claim which once again pleaded facts relevant to the operation of the Limitation Act.
96There was no reply to the defences.
97On 15 May 2009, McLoughlin DCJ dismissed a motion brought by Ms Blackburn to remove Mrs Withyman as tutor.
98The matter was called on for hearing on 15 February 2010. Ms Blackburn was present and unrepresented. On the morning of the first day, the primary judge asked Mr Marshall, senior counsel for Mr Withyman, whether there was still a limitation point or whether it had been dealt with. Mr Marshall said (Black, vol 1, p.115):
"MARSHALL: We say it has been dealt with implicitly by Judge McLoughlin in earlier proceedings.
HIS HONOUR: Right".
Mr Marshall continued (Black, vol 1, pp.115 - 116):
"MARSHALL: Your Honour may need to look at the transcript for that. In those proceedings, Judge McLoughlin made orders that the plaintiff have leave to proceed, that a section of the Felons Act did not amount to a bar to proceedings. To do that, he had to satisfy himself that there was a valid course of action available to the plaintiff.
HIS HONOUR: But there hasn't been a hearing specifically dedicated to the limitation question? I mean in other words, you haven't had a motion asking for leave to proceed out of time--
MARSHALL: No.
HIS HONOUR: --or the defendant hasn't put on a motion saying you can't proceed because it's out of time?
MARSHALL: No. But the point was, I'm told by Mr Sergi who appeared on the motion, argued at length before Judge McLaughlin.
HIS HONOUR: All right."
99Mr Bridge, senior counsel for the State, then took issue with this, saying (Black, vol 1, p. 116):
"BRIDGE: We take issue to that, your Honour."
100The parties then considered their position. Further discussion took place (Black, vol. 1, pp. 121 - 122):
"HIS HONOUR: At first blush I would prefer to get on with the oral evidence but I must say I'm very concerned about the limitation point. From the point of view of whether there is a point or not, because I think that will effect the evidence. I will effect -
BRIDGE: It will from our perspective - I didn't want to interrupt my friend, but quite obviously your Honour, we will be on one view - your Honour will see that there is an issue in the pleadings about whether the plaintiff is disabled within the terms of the Tutor provisions and also within the terms of Limitation provisions. Both matters are put in issue in the pleadings now.
HIS HONOUR: There were some notions weren't there about removing the Tutor -
BRIDGE: I don't know about -
SECOND DEFENDANT: That's correct, your Honour, I put forward a motion.
HIS HONOUR: You had a motion to remove the Tutor.
SECOND DEFENDANT: I had a motion to remove the Tutor, yes.
HIS HONOUR: And what happened?
SECOND DEFENDANT: It was dismissed by McLoughlin DCJ."
101On the morning of the second day, Mr Bridge raised the matter with the primary judge. The following exchange took place (Black, vol 1, p. 141):
"BRIDGE: Your Honour, in relation to the limitation issue, I have read the judgment, I can't raise that point.
HIS HONOUR: Yes, I thought it was a clear issue estoppel, Mr Bridge, I read it again over night.
BRIDGE: It's helpful to read the judgment, your Honour.
HIS HONOUR: Okay, thank you for that. That will apply also to the second defendant.
BRIDGE: I haven't raised it with her.
HIS HONOUR: The limitation issue that we were talking about yesterday, Mr Bridge has said that he cannot raise it. Do you have a different position?
SECOND DEFEDANT: Yes. I concurred. I have very little legal knowledge but I would imagine one judgment is made in the court, the following judgment can't be made in the same court, is that correct or am I mistaken?
HIS HONOUR: That's called issue estoppel, thank you for that. Yes, what about the pleadings then?"
102On the appeal, Ms Norton SC sought to maintain this position against Ms Blackburn. The State (if I may say so, perfectly properly) did not seek to resile from the position it took at the trial. Mr Morris, on behalf of Ms Blackburn, did seek to resile from it.
103For the following reasons, the primary judge erred in his conclusion that the issue had been resolved in circumstances leading to an issue estoppel. Equally, counsel was wrong. Ms Blackburn was (of course, not intentionally) misled in this regard and should not be held to the error.
104In Blair v Curran [1939] HCA 23; 62 CLR 464 at 531 - 533, Dixon J said:
"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded.
...
The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order." (emphasis added)
105There is no doubt about the continuing application of the distinction made by Dixon J in Blair v Curran: Murphy v Abi-Saab (1995) 37 NSWLR 280 at 288.
106Further, in Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 at 373ff, the Court (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) applied what Lord Guest had said in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935:
"(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies."
At 375 [25] the Court referred to finality as follows:
A "final" decision, then, is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final. It must be "final and conclusive on the merits": "the cause of action must be extinguished by the decision which is said to create the estoppel".
107For one purpose, the decision to grant leave under the Felons Act is clearly interlocutory in that it does not finally decide the rights of the parties. But the conception of finality for these purposes of issue estoppel may be different. Is it completely effective (as an order granting leave) unless or until it was set aside on appeal?: Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; 109 CLR 285 at 298; Kuligowski at 374 - 375 [25] and 379 [39]. See also Maurice Blackburn Cashman v Brown [2011] HCA 22; 242 CLR 647 at 662 [40]. In Maurice Blackburn the question was of the finality of a decision (an opinion) of a medical board. It was not final because its determinacy went no further than the Act itself. Here, the decision which it is necessary to characterise as final or not is the decision to grant leave. Whether or not it is final in the relevant sense, the issue determined must have been legally indispensable for the decision. It was not. It was not a necessary or an indispensable part of the reasoning founding the grant of leave under the Felons Act to conclude that the action was not statute barred. The legal foundation for the leave to be granted was only that the claim was prima facie arguable and not an abuse of process in the face of the length of time since the events. No defence had been filed. No resolution of a joined issue was before the Court. The only issue decided between the parties was that the proceedings were not an abuse.
108It was argued that the parties had chosen to elevate a factual issue to a point and to an extent that placed it before the judge for disposition. There are two answers to that. First, from the terms of the argument that I have set out, the parties only ever approached the matter on a prima facie basis. The application began and ended with the express recognition of that from all counsel. The judge went beyond the argument and the issues before him for disposition.
109Secondly, given that issue estoppel is limited to what is legally necessary or indispensable, and that the fact of the matter not being statute barred does not fall into that category, any estoppel would have to be of a different type flowing from the conduct of the litigation: Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394. No such estoppel was pleaded. It was not what the primary judge or, apparently, counsel relied upon.
110During the appeal, Mr Morris filed in Court an amended notice of appeal dated 16 November 2012. For the reasons given above the appeal should be allowed on ground 11, that the primary judge erred in not determining Ms Blackburn's defence under the Limitation Act. The appeal otherwise fails. The consequence of this is that there needs to be a new trial limited to the limitation defence. It was accepted that this Court could not undertake this task. We did not have the relevant material that was before McLoughlin DCJ, and, more importantly, primary factual findings have not been made at a trial about the issues.
111As to costs of the appeal, Ms Blackburn has been successful in setting aside the judgment against her, but she failed on some issues. The problem arose (and I do not say this critically) in part because of the error of Mr Marshall. In these circumstances it is just and appropriate for Ms Blackburn to have the costs of the appeal. The costs of the first hearing should abide the result of the hearing on the limitation point and be within the power of the judge hearing the matter to award.
112The remitter should be to the primary judge. On the views that I have expressed, his Honour made no error other than the failure to deal with an issue. The parties (other than Ms Blackburn) led him into that error. Evidence was not called that was directed to that issue. It is true that findings in the nature of demeanour and credit findings have been made about Mr Withyman and his mother. None of those findings was attacked. It appears appropriate that the same judge finalise the issues that were before him, even though he has come to views on the evidence so led. This, however, is not a bar to any application that may be made before the primary judge if the matter is before him.
113The orders that I propose in Ms Blackburn's appeal are:
- Appeal allowed.
- Set aside the judgment for the plaintiff against the second defendant in the sum of $120,293.65 and set aside the order for costs against the second defendant.
- Remit the matter to Elkaim DCJ (or if this is not possible to another judge of the District Court) to hear and dispose of the defence of the second defendant (the appellant, Ms Blackburn) under the Limitation Act 1969, such remitter to be limited to such issues, by way of completion of the hearing before the District Court.
- The first respondent (Mr Withyman by his tutor Glenda Ruth Withyman) pay the appellant's costs of the appeal.
- The first respondent to have a certificate under the Suitor's Fund Act 1951 (NSW).
- The costs of the trial to date be decided by Elkaim DCJ (or such judge who hears the remitter) in the light of the disposition of the issues on remitter.