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State of Queensland v RAF

 

[2010] QCA 332

Reported at [2012] 2 Qd R 375

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

DELIVERED ON:

26 November 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

10 November 2010

JUDGE:

Margaret McMurdo P, White JA and McMeekin J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – DISABILITY – UNSOUNDNESS OF MIND – WHAT CONSTITUTES – where respondent commenced proceedings against the State of Queensland for personal injury suffered as a result of sexual abuse perpetrated by her step father – where contemporaneous complaints were made to the relevant government department but no action taken to protect the child from further abuse – where it was agreed that the respondent was under the disability of infancy until the age of 18 – where the respondent suffered from a significant personality disorder from the age of 10 years – whether the respondent was under a relevant disability at all material times – whether there was any sufficient amelioration of the respondent’s condition to enable her to pursue her cause of action

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the material fact relied upon was that the respondent was unaware that evidence existed in Departmental records to support her claim – whether the newly discovered facts had the necessary quality of decisiveness – whether all reasonable steps had been taken to discover the nature of the evidence contained within the Departmental records before the critical date – whether the respondent’s mental condition restricted her capacity to form and act upon rational decisions in relation to the cause of action – whether the limitation period should be extended

Limitation of Actions Act 1974 (Qld), s 5(2), s 29, s 30(1), s 31

Flemming v Gibson [2001] QCA 244, considered

King v Coupland [1981] Qd R 121, considered

NF v State of Queensland [2005] QCA 110, cited

Pizer v Ansett Australia Ltd [1998] QCA 298, cited

Saunders and Anor v Jackson [2009] NSWCA 192, cited

Sugden v Crawford [1989] 1 Qd R 683, considered

COUNSEL:

D J Kelly for the appellant

K C Fleming QC, with S J R Cilento, for the respondent

SOLICITORS:

Crown Law for the appellant

Dempsey Lawyers for the respondent

[1] MARGARET McMURDO P:  This appeal should be dismissed with costs for the reasons given by McMeekin J.

[2] WHITE JA: I have read the reasons for judgment of McMeekin J and agree with his Honour that the appeal should be dismissed.

[3]  McMEEKIN J: The respondent commenced proceedings on 12 February 2007 for damages against the State of Queensland for personal injury consequent upon the sexual abuse that she had suffered at the hands of her step father.  The abuse commenced when the respondent was aged 10 years.  She is now 48 years old.  Her complaint is that the matter came to the notice of the relevant government department but no proper action was taken to protect her and the abuse continued for many years thereafter.

[4] The respondent’s difficulty is that she was well out of time when she commenced proceedings and the appellant relies on the expiry of the limitation period to preclude her pursuing her action.

[5] There were two applications before the primary judge.  In one the respondent sought a declaration pursuant to s 29 of the Limitation of Actions Act 1974 (Qld) (“the Act”) that she was under a relevant disability at all material times and hence the limitation period did not run against her.  In the other she sought an extension of the limitation period pursuant to s 31 of the Act, asserting that a material fact of a decisive character was not within her means of knowledge until a date within a year of commencing proceedings.  She was successful in both applications.

[6] On this appeal the State of Queensland challenges both decisions.  The relevant issues to be determined on the appeal are:

 

(a) Whether the learned primary judge overlooked certain evidence, and thereby erred, in accepting expert medical opinion that the respondent was under a relevant disability; and

(b) Whether the requirements of s 31 of the Act were satisfied, the primary attack being on whether the claimed material fact was decisive in the relevant sense.

The Incapacity Point

[7] Section 29 of the Act, so far as is relevant, provides:

“29 Extension in cases of disability

(1) If on the date on which a right of action accrued whether before or after the commencement of this Act for which a period of limitation is prescribed by this Act the person to whom or for whose benefit it accrued was under a disability, the action may be brought at any time before the expiration of 6 years from the date on which the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired.

(2) Notwithstanding subsection (1)—

…..

(c) an action to recover damages in respect of personal injury or damages in respect of injury resulting from the death of any person shall not be brought by a person after the expiration of 3 years from the date on which that person ceased to be under a disability or died, whichever event first occurred.”

[8] Section 5(2) of the Act provides: “For the purposes of this Act, a person shall be taken to be under a disability while the person is an infant or of unsound mind.”

[9] It is common ground that the respondent was under the disability of infancy until 5 June 1980, her 18th birthday.

[10] Thereafter the respondent contends, and the primary judge found, that the relevant disability was unsoundness of mind.  The primary judge’s decision was based on the evidence of an experienced psychiatrist, Professor James.  The primary judge summarised Professor James’ opinion in the following passage:

“His opinion is that the applicant suffers from a virtually lifelong personality dysfunction of varying intensity with marked features of what is known in DSM IV as a borderline personality disorder but which is increasingly recognised in the professional literature as the consequence of a complex post traumatic stress disorder arising in childhood. If I understand his evidence correctly, he thinks that she has had this condition since about the age of ten.”[1]

[11]  In the course of his reasons the primary judge said of Professor James’ opinion that the respondent was of unsound mind: “The opinions expressed by Professor James in his final report at page 13 were adhered to by him under cross-examination and given his expertise I accept what he says.”

[12] The appellant’s criticism of his Honour’s finding centred on evidence elicited in cross examination.  The professor was being asked about the significance of a complaint made in 2003 by the respondent to the police about her step father’s conduct.  The respondent had made a detailed statement of her complaints.  The relevant passage is as follows:

“So at that stage she wouldn't be suffering from - would she, from an unsoundness of mind?-- At - at that stage probably not.”[2]

[13]  The appellant submits that to satisfy the concept of unsoundness of mind it is necessary that the condition be “continuous”, that Professor James conceded that it was not, and that the primary judge overlooked that concession, a concession fatal to the respondent’s case.

[14]  This was against a background, so the appellant urged, that the respondent had apparently functioned more or less normally in other respects.  The appellant’s counsel attempted to summarise the appellant’s view of the evidence in a question to Professor James.  It was suggested that the respondent had since the age of 15,

“obtained a drivers licence by having to sit a test, has obtained employment by applying, meeting people, has maintained that employment in a deli in Coles where she dealt with members of the public, accepted their orders, she has maintained two long relationships with men, she has on occasions lived on her own, she has rented premises and she says paid all her bills, she's taken out a bank account, which she's maintained. She's applied for and received family allowance, she's obtained a drivers licence, has driven a motor vehicle, has raised five children, taken them to school….”[3]

The question tends to overstate the respondent’s functioning and minimise the assistance that she received along the way, but nonetheless sets out a reasonable summary of her functioning generally for the purposes of the question.

[15]  As well, the appellant referred to a note in a hospital record dated 30 March 2005 made during an admission following an attempted suicide which read: “Stressors, awaiting Court case.  Is charging stepfather with past sexual abuse from her childhood.  Is also sueing (sic) government organisation for not acting on a statement she made about childhood sexual abuse when she was 11 years old.”[4]

[16]  To assess the validity of the complaint it is necessary to examine what is involved in the concept of unsoundness of mind and look more fully at the evidence.

[17]  There was no dispute that the relevant test to apply in determining unsoundness of mind for the purposes of the Act was that formulated by Macrossan J (as his Honour then was) in King v Coupland[5] and adopted by this Court in Flemming v Gibson.[6]  In the former case, which itself was concerned with the Act under consideration here, Macrossan J said:

“It may be accepted that the meaning of “unsoundness” of mind is to be gathered from considering the place of the relevant phrase in the statute and from the function intended by the statute itself. The examples given at p. 384 of relevant aspects of unsoundness seem helpful, with respect, and a number of the medical witnesses before me were asked to provide an opinion, basing themselves upon those guidelines viz. capacity to instruct a solicitor properly; capacity to exercise reasonable judgment upon a possible settlement and capacity to appreciate the nature and extent of any available claim. These seem to me to be aspects of a broader concept of a mental illness causing an incapacity to manage affairs in relation to the accident that is to manage them in the manner that a reasonable man would achieve. This I take to amount to the unsoundness of mind which the Statute brings into question.”[7]

[18]  In Flemming, the Court summarised the effect of that passage in these words: “Shortly stated it was necessary for the respondent to establish a mental illness producing incapacity to manage her affairs in relation to the accident in the manner of a reasonable person.”[8]

[19]  What should not be overlooked in both judgments is the reference to the incapacity “to manage affairs in relation to the accident” and not in relation to life generally.

[20]  I have no difficulty with the proposition that to constitute unsoundness of mind under the Act the condition from which the respondent was suffering needs to be more or less continuous.  The relevant test is whether the periods of any “lucidity” were such as to enable her to manage her affairs in relation to these proceedings in the manner that a reasonable person would achieve.  I do not think it possible or desirable to attempt to lay down any rule, but plainly evidence that brief periods of amelioration of the disability occurred, too short to enable comprehension of all relevant matters or action upon them, would not remove the protection provided by the section as such an interpretation would hardly meet the beneficial purpose of the statute.

[21]  When one looks at the evidence overall I think it clear that Professor James was not suggesting, by the answer I have referred to, that there was any such lifting or amelioration of the respondent’s condition so as to enable her to reasonably manage her affairs in relation to the matter of the prosecution of a case for damages arising out of the sexual abuse that she had suffered.

[22]  Before turning to that evidence I note that Professor James went to some trouble to explain that the disorder he diagnosed was considered to be a “mental disorder” in the standard texts in his field of psychiatry and was not described as a “mental illness”, as that latter term was no longer used.  He was plainly concerned at the use of the descriptor “mental illness” in the judgments in King and Flemming, with which he had been provided.  The use of the phrase “mental illness” in these cases was not intended as a term of art as it may be in psychiatry.  It is meant in the more general sense as connoting an abnormality of the mind.  And I see no reason why the word “mind” should not be taken to mean the mind in all its aspects – including the ability to form a rational judgment and to act upon any such judgment so formed.[9]  Professor James drew attention to the definition of “mental illness” in the Mental Health Act 2000 (Qld) as “a condition characterised by a clinically significant disturbance of thought, mood, perception or memory”.  He considered that the disorder that he diagnosed as present in the respondent would satisfy that test and he opined that it would come within psychiatry’s present view, not perhaps held in past decades, of what constitutes “mental illness”.[10]

[23]  I observe too that there was no dispute in the evidence that the respondent had a significant personality disorder.  Dr Varghese had given a similar opinion, when asked to examine the respondent by the appellant’s side, and a forensic psychologist Dr Walker had concluded:

“It would be my view that when one compounds her intellectual deficiencies with a florid, disabling and difficult-to-treat psychotic illness, it is a most likely outcome that her functioning within all levels of her societal roles would be highly compromised. This is supported again by the involvement of the Department of Child Safety in the care of her children and the removal of same in to foster carers.

This aside however, it is very likely that her capacities to form intentions and carry out plans and be aware of the issues of a complex nature in her life vis-a-vis her legal rights and responsibilities would be equally compromised.”[11]

[24]  In his written report Professor James considered that the disorder was “virtually life-long”, by which he meant that it had been in place since the respondent had been aged 10 years and would remain in place for her the rest of her life.[12]  Professor James was well placed to express an opinion he having seen the respondent by the time he gave his evidence on three occasions, and he having had long experience of such cases over some 40 years, and high qualifications.[13]

[25]  That opinion, at least so far as the past was concerned, was certainly supported by the evidence from the respondent which was to the effect that she had been under care from doctors and counsellors for her psychiatric problems since 1993, had been hospitalised on two occasions in Bundaberg and Townsville respectively, on the latter occasion following an attempted suicide,[14] and in her view had been “like this” since she was aged 13 years.[15]

[26]  Thus it seems unlikely that, taken in the context of his overall opinion, Professor James had any intention of suggesting that this life long condition, present in his view since the age of 10, had not been present for any significant period in 2003.

[27]  The appellant’s submission overlooks the true difficulty that the condition presents for the respondent.  It is not that she cannot understand what has been done to her, nor that she did not appreciate the wrong that it constituted.  Her difficulty, brought about by the personality disorder diagnosed, is that she cannot pursue matters relevant to her interests, at least in regard to this claim for damages for the sexual abuse that she had suffered.  Professor James pointed out in his report that the disorder that he had diagnosed caused the respondent “deprivation of the capacity to perceive, interpret and respond to situations as would the normal reasonable person”.[16]  He summarised his views as follows:

“Bearing all the above in mind, therefore, it is my opinion that [the respondent] should be considered as being of Unsound Mind for the purposes of the Limitations of Actions Act 1974 since at least from the age of sixteen. The repeated fragmentation and disruption of her sense of Self; the emergence periodically of symptoms of Major Depressive Disorder and of Psychosis; and the symptomatic abuse of potentially addictive substances; all combined with her pervasive and enduring sense of distrust of authority, would, in my opinion, have made it impossible for [the respondent] to formulate, sustain, and pursue effectively any course of action with respect to the claim of compensation.[17]

[28]  It is not to the point to argue that the respondent can do some of the normal things in life, nor that she managed to complain to the police about her step father.  The issue is whether Professor James resiled from the view, expressed in his report, that it was impossible for the respondent “to formulate, sustain, and pursue effectively any course of action with respect to the claim of compensation”.

[29]  When one considers the evidence that followed on the answer that the appellant seeks to stress, it is quite evident that Professor James considered that the episode of reporting the matter to the police did not evidence any significant alteration of the respondent’s condition, but rather at the most, a transient amelioration, and not one giving rise to an ability to effectively pursue her interests:

“So if there are other incidents where she has dealt with authority, so if she has gone and obtained a driver's licence after being stopped by the police because she was driving on a learner's permit, would you say at that time she wasn't suffering from an unsoundness of mind?-- Well, again, vulnerabilities, which include delusions, not that I think she actually had delusions, but people with unsoundness of mind frequently do, can be very, very circumscribed, and they can perform well in - outside those very, very circumscribed areas, and I think that's true of [the respondent], that there were certain issues which - with which she could approach authority with relative trust but not others.

Mmm. But certainly approaching the authorities like on her own about [the step father’s] abuse would put her into the position where she was no longer suffering-----?-Y-e ah.

- - - - for that period?-- Yes. I - I - I would like to add one word here which I think is important to convey, and that word is "transience".

Mmm?-- That this is one of the keystones of the condition and that - that a person may be, for a very short time, be able to do it or in a very tentative way, exploratory way, but not in any definitive, continuous and effective fashion.

Mmm. But that's speculation on your part, isn't it, Doctor?-- It's not speculation. I spent 40 years examining people of this kind.

Mmm. Yes. But you can't say, can you, that in that 30 year period during those instances where [the respondent] rose above her personality disorder that she wasn't then of sound mind?—I would say it was - in the appropriate meaning of the word very unlikely.

Mmm. Except for that period where she approached the police?-- Yeah. There may have been moments of transience when she could do that but as I say, it is likely at those early stages that these would have been tentative and exploratory approaches.”[18] (underlining added)

[30]  In my view the finding expressed by the learned primary judge that Professor James had adhered to his opinions was correct.

[31]  It is worth noting that the aspect of the respondent’s condition that Professor James emphasised – the ability to “sustain, and pursue effectively” her potential cause of action has been recognised as significant in other jurisdictions in cases involving consideration of this question of a mental disability preventing the running of the limitations statute.  In Saunders and Anor v Jackson,[19] Hoeben J (with the agreement of Ipp and Macfarlan JJA) said in reference to a complaint of sexual abuse in a family context:

“[45] It would take a person of exceptional robustness and strength of character to pursue such a claim in the civil courts even if that person were not suffering from an impairment of her mental condition. Her Honour recognized that fact in her judgment and Beazley JA referred to its significance in Harlum:[20]

“94The State’s approach also fails to deal with another of the other fundamental aspects of bringing a claim, namely that it requires the exercise of willpower to initiate the claim: see Kotulski at 118. In this regard, I consider that it is important to understand that it is not only a question of having the willpower to engage in the task of commencing proceedings. Such an approach takes a far too simplistic view of what is involved in the commencement of an action. In making a decision to commence an action, the person is also making a decision to continue with the claim.

95Even if a person is able to fulfil each of the requirements contained in the State’s approach, including the making of a decision to instruct a lawyer and to provide instructions, the person may not have the willpower to engage in all that is required to commence an action because of that person’s mental condition.”

[32]  In my view there was ample evidence on which the finding by the primary judge of a disabling “unsoundness of mind” could be based. With respect, I detect no error in the primary judge’s approach.

The Extension of the Limitation Period

[33]  In the circumstances it is unnecessary to deal with the appeal in relation to the extension of the limitation period, but in case the matter goes further I will say a few words in relation to it.  Again, I could detect no error in the reasons of the primary judge.

[34]  In order to succeed on an application to have the limitation period extended the applicant must show that “a material fact of a decisive character relating to the right of action was not within [her] means of knowledge” until a date after, in this case, 12 February 2006:  s 31(2)(a) of the Act.  There must be evidence to establish the right of action: s 31(2)(b) of the Act.  Those two matters being shown there arises a discretion to extend the limitation period for 12 months from the time the material fact was within the applicant’s means of knowledge.  Normally that discretion would be exercised in favour of the application unless there was relevant prejudice to the respondents.[21]  The onus lies on the applicant throughout.

[35]  The material fact relied on was that the respondent was unaware that there existed evidence in the Departmental records that her step father had admitted to the conduct of which she complained.  Further, she was unaware that there was a record of the response of the Department to her complaint and to his admissions.  That record showed that there had been no referral of the matter to the police for the prosecution of the step father’s grossly criminal conduct towards her, but rather an arrangement was entered into that the step father be permitted to remain in the home with her on his undertaking to seek psychiatric treatment from a named specialist.  The records suggest that there was no monitoring of the situation or attempt to ascertain whether her welfare was in fact protected by the arrangement entered into.

[36]  It was not contended that there was not evidence to establish the right of action.  Nor was prejudice argued for.

[37]  The principal issue on the appeal was whether the newly discovered facts had the necessary quality of decisiveness.  Section 30(1)(b) of the Act provides:

“(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—

(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

(ii) that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action…”

[38]  Lack of evidence supporting the intended case can amount to a material fact of a decisive character.  The principle was explained by Connolly J (with whom Shepherdson J agreed) in Sugden v Crawford,[22] where after referring to the two conditions set out in s 30(1)(b) of the Act, his Honour said:

“The basic assumption of the scheme is that if both those conditions were already satisfied without the new evidence, its discovery will not warrant an extension of time.  It follows that an order will be justified where there is such an enhancement of the prospect of success as, for example, would suffice to raise it from a possibility to a real likelihood.  Thus a prima facie case of actionable negligence may already exist but it may well seem to the applicant’s legal advisers to be, on balance, too risky until the newly discovered fact emerges.”

[39]  The difficulties inherent in conducting a case of this type are manifest.  The respondent was a child at the time of the offending conduct and at the time of the complaint to the Department.  Many years had passed since her complaint.  From the respondent’s perspective her complaint had been ignored.  It would seem that the respondent’s mother was angry with her for making the complaint and might well not have supported her in her complaints.  There was the prospect that Departmental records had been lost and the relevant officer to whom the complaint had been made no longer alive or of no assistance in establishing what had occurred.  And it was unknown what the departmental position might be.

[40]  To succeed in her claim it was necessary for the respondent to persuade a court that the Departmental officers had such evidence available to them as made it incumbent on them to act.  Further, she had to show that whatever action they took was not reasonable in the light of that evidence.  Her mere assertion that she had complained was not sufficient to establish good grounds for a claim.  For all that the respondent knew, the Departmental officers had other evidence which they reasonably believed did not support her complaints and which may have justified the Department’s stance.

[41]  The evidence known to the respondent before the disclosure of the Departmental records was summarised by her solicitor as follows:

 

“7.The following is information that was provided and advised to Mr Dempsey by the Applicant on or around the 10 November 2005:

 

- That some 30 years ago she was sexually assaulted by her Stepfather;

- The Applicant complained about the abuse to the Department of Children's Services, but was unaware at the time what action, if any, was to be taken by the Department at the time;

- Even after the Applicant told the Department about the sexual abuse, the Applicant was left in the household and the sexual abuse continued for a number of years whilst the Applicant was forced to remain living at home;

- The Applicant has suffered severe psychological injuries as a result of the abuse and has subsequently attempted to commit suicide. The Applicant has also been admitted to the Bundaberg Community Mental Health Unit;

- The Applicant was involved in Court proceedings and was required to attend Court in her sister's action against the stepfather for the same treatment. It was at this time that the Applicant was told that there was a document depicting a statement by a Mr. John Johnson stating that the Department of Children's Services were aware of the abuse, but did not make any attempt to take any action; and

- The Applicant did not see any of these documents at that time.”

[42]  To adapt the observation of Connolly J in Sugden the question is whether, given the evidence that the respondent already had in her possession, the respondent “ought, in [her] own interests taking [her] circumstances into account, hazard the risks of litigation and the time and expense involved”.[23]  There can be no doubt that the discovery of the Departmental records materially strengthened the respondent’s case against the Department.  In my view, until the appellant disclosed its records to her, the respondent did not have the necessary evidence to be sufficiently confident of success.  In my view a reasonable person, absent that information, could have justifiably considered that the litigation was too risky to hazard, and with that additional information, determine that the risks were significantly ameliorated such that it was now in her interests to proceed. 

[43]  It was common ground that that disclosure occurred after the critical date.  So, the records were not within the respondent’s actual knowledge.  The appellant nonetheless argued that the information was within her means of knowledge before the critical date.

[44] Section 30(1)(c) is relevant.  It provides:

“(c) a fact is not within the means of knowledge of a person at a particular time if, but only if—

 

(i) the person does not know the fact at that time; and

(ii) as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.

[45]  As his Honour, with respect, correctly recognised, the test of whether reasonable steps have been taken as required in s 30(1)(c)(ii) depends on “what can reasonably be expected from the actual person in the circumstances of the applicant” for the extension, as explained in NF v State of Queensland.[24]

[46]  The appellant’s point was that the respondent had been told before the critical date that records existed within the Department relating to her complaint and that therefore the need to pursue those records was self evident and, if that had been done, as was reasonably required, the claimed material facts would have been discovered before the critical date.

[47] The difficulty with the submission is that it takes no account of the existence of the disorder spoken of by Professor James, nor of the limited information that the respondent had.  Here the premise is that the condition that the respondent had was not disabling in the sense of amounting to unsoundness of mind but was nonetheless present.

[48]  As to the information she had, it is far from clear what it is that she was told about the records that were extant and how authoritative the source was.  Her affidavit reads: “In early 2005, I was told that the Department of Children's Services may have been aware of the abuse but did nothing about it.  I was told this when I attended Court for my sister's case…”[25] Added to that is her statement in evidence that, “When we took [the step father] to Court, that’s when I found out about what Family Services had admitted to…”.[26]

[49]  Assuming that a reasonable person was, by reason of the receipt of that information, thereby obliged to make further enquiries to establish the precise nature of the evidence held by the Department, the issue is whether it was reasonable for this applicant to have done so.  Whether or not her condition amounted to “unsoundness of mind”, it certainly severely restricted her capacity to form rational decisions and act upon them.

[50]  The primary judge concluded that “[g]iven her psychiatric condition and her stated knowledge she could not reasonably have been expected to seek legal advice or pursue an action before she did.”[27]  There was no error of fact disclosed in his Honour’s reasons or any misunderstanding of the principles involved.

[51]  It needs to be borne in mind that such findings by primary judges are not to be too readily interfered with.  As Thomas JA observed in the context of questions involving degrees of injury and extensions of the limitation period:

“Although the eventual decision is discretionary the determination of these issues is not. They involve findings of fact and a determination whether those facts satisfy the requirements of the statute. It is worth mentioning however that such findings and determinations are made in an area where different minds might reasonably reach different conclusions. In such a situation the appeal court is not free to decide the question according to its own preference. Unless the judgment reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference.”[28] (footnotes omitted)

[52]  In my view those comments apply with equal force here.  I agree with the primary judge’s conclusion, but, even if I did not, I cannot see any basis for interference on appeal.

[53]  In my view the learned primary judge was right to allow the extension of the limitation period.

Proposed Orders

[54]  I would dismiss the appeal and order that the appellant pay the respondent’s costs.

Footnotes

[1] AR 395 at [18].

[2] AR 54/1.

[3] AR 50/50 – 51/4.

[4] AR 364.

[5] [1981] Qd R 121.

[6] [2001] QCA 244.

[7] [1981] Qd R 121 at 123.

[8] [2001] QCA 244 at [4].

[9] Cf. Kotulski v Attard [1981] 1 NSWLR 115 at 118 per Slattery J, his views being cited with approval in Olive v Johnstone [2006] NSWCA 21 at [61] and in New South Wales v Harlum [2007] NSWCA 120 at [61].

[10] AR 278-279.

[11] AR 300.

[12] AR 282; 50/20.

[13] AR 284 -286.

[14] AR 29.

[15] AR 31/8.

[16] AR 281.

[17] AR 282.

[18] AR 54/15-55.

[19] [2009] NSWCA 192.

[20] New South Wales v Harlum [2007] NSWCA 120.

[21] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 per Dawson J; at 555 per McHugh J.

[22] [1989] 1 Qd R 683 at 686. See also Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 at [45] per McMurdo J.

[23] [1989] 1 Qd R 683 at 686.

[24] [2005] QCA 110 at [29] per Keane JA.

[25] AR 336 at [24].

[26] AR 31/59.

[27] AR 400 at [53].

[28] Pizer v Ansett Australia Ltd [1998] QCA 298 at [20].

Close

Editorial Notes

  • Published Case Name:

    State of Queensland v RAF

  • Shortened Case Name:

    State of Queensland v RAF

  • Reported Citation:

    [2012] 2 Qd R 375

  • MNC:

    [2010] QCA 332

  • Court:

    QCA

  • Judge(s):

    McMurdo P, White JA, McMeekin J

  • Date:

    26 Nov 2010

Litigation History

Event Citation or File Date Notes
Primary Judgment [2010] QSC 212 18 Jun 2010 Cullinane J.
Appeal Determined (QCA) [2010] QCA 332 26 Nov 2010 -

Appeal Status

{solid} Appeal Determined (QCA)