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HWC v The Corporation of the Synod of the Diocese of Brisbane[2009] QCA 168

HWC v The Corporation of the Synod of the Diocese of Brisbane[2009] QCA 168

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168

PARTIES:

HWC
(plaintiff/first respondent)
v
THE CORPORATION OF THE SYNOD OF THE DIOCESE OF BRISBANE
(first defendant/second respondent)
MINISTER OF EDUCATION FOR THE STATE OF SOUTH AUSTRALIA
(second defendant/first appellant)
THE STATE OF SOUTH AUSTRALIA
(third defendant/second appellant)
DONALD J HOPGOOD
(fourth defendant/not a party to the appeal)

FILE NO/S:

Appeal No 9753 of 2008

Appeal No 10034 of 2008

SC No 7453 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

30 April 2009

JUDGES:

Keane, Fraser and Chesterman JJA

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

ORDERS:

In Appeal No 9753 of 2008:

  1. Appeal allowed
  2. The orders of the primary judge be set aside, except for the orders made concerning the costs of the adjournment on 14 March 2008, insofar as they affect the first, second and third defendants
  3. The plaintiff's and the first defendant's applications pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) and s 18 of the Personal Injuries Proceedings Act 2002 (Qld) be dismissed insofar as it affects the second and third defendants
  4. The plaintiff's claim against the first, second and third defendants is dismissed
  5. The first defendant's claim against the second and third defendants is dismissed
  6. The parties are at liberty to make written submissions in relation to issues of costs in accordance with Practice Direction No 1 of 2005

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF DECISIVE CHARACTER – where plaintiff commenced action against second respondent claiming damages for personal injuries resulting from sexual abuse by a teacher employed at school conducted by first defendant – where extension of time under s 31 of the Limitation of Actions Act 1974 (Qld) necessary to maintain action – where second and third defendants joined to enable plaintiff to seek contribution if damages recoverable from first defendant – where plaintiff instituted proceedings to secure his position – where plaintiff asserted knowledge of material facts did not arise until year preceding institution of proceedings against second respondent – where plaintiff learned that headmaster of school allegedly warned against hiring teacher – whether that fact constituted a material fact of a decisive character

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – PRINCIPLES UPON WHICH DISCRETION EXERCISED – where action against first defendant turns upon conversation between persons relating to employment of teacher – where recent statements provided by those persons contain differing views about content of conversation – where defence of action against second and third defendants might turn upon testimony of persons now deceased – whether a fair trial possible – whether exercise of discretion by primary judge in extending limitation period miscarried thereto

Limitation of Actions Act 1974 (Qld), s 30, s 31

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, cited

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited

Castillon v P&O Ports Ltd (No 2) [2008] 2 Qd R 219; [2007] QCA 364, cited

Healy v Femdale Pty Ltd [1993] QCA 210, cited

HWC v The Corporation of the Synod of the Diocese of Brisbane & Ors (2008) 220 FLR 92; [2008] QSC 212, considered

New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4, cited

Opacic v Patane [1997] 1 Qd R 84; [1996] QCA 95, cited

Page v The Central Queensland University [2006] QCA 478, cited

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

State of Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20, cited

Stuart v Kirkland-Veenstra (2009) 254 ALR 432; [2009] HCA 15, cited

COUNSEL:

In Appeal No 9753 of 2008:

D O J North SC, with K Philipson, for the first and second appellants

R J Douglas SC, with D P de Jersey, for the first respondent

R S Ashton for the second respondent

SOLICITORS:

In Appeal No 9753 of 2008:

Crown Law for the first and second appellants

Shine Lawyers for the first respondent

Minter Ellison for the second respondent

  1. KEANE JA:  Between 1981 and 1985 the plaintiff was a student at St Paul's School which is conducted by the first defendant.  The plaintiff alleges that while he was at the school he was sexually abused by his music teacher, Gregory Knight. 
  1. On 15 August 2002 the plaintiff commenced an action against the first defendant claiming damages for personal injuries resulting from that abuse. At that time the plaintiff's action was time-barred under the Limitation of Actions Act 1974 (Qld) ("the Act") unless an extension of time were to be granted under s 31(2) of that Act.
  1. In March 2007 the Minister for Education of the State of South Australia and the State of South Australia were joined in the action as third parties. This joinder was made on the application of the first defendant in order to enable it to seek contribution towards its liability (if any) to the plaintiff. These third parties were later joined, together with Mr Hopgood (formerly a member of the South Australian Parliament and Minister for Education of that State), as the second, third and fourth defendants respectively in the plaintiff's action. This joinder was made subject to the success of an application by the plaintiff for an extension of the limitation period against these defendants.
  1. The plaintiff, in applying to the learned primary judge for extensions of time under the Act, argued that the extensions of time were justified because material facts of a decisive character were not within the plaintiff's means of knowledge until some time during the year before the proceedings were commenced against the relevant defendant.
  1. All the defendants contested these applications. The second, third and fourth defendants also countered with an application to have the proceedings against them by the plaintiff and first defendant dismissed arguing that the plaintiff has no evidence to establish a case of negligence against them and accordingly that the first defendant has no claim against them to contribution in respect of its liability (if any) to the plaintiff.
  1. On 9 September 2008 the learned primary judge made orders extending the limitation period applicable to each of the defendants to enable the action to proceed against them. Her Honour also refused to dismiss the plaintiff's action against the second, third and fourth defendants and the first defendant's claim for contribution.
  1. The defendants, except the fourth defendant, have appealed against these orders. In order to prepare the way for a discussion of the issues which arise on the appeals, I propose first to set out the provisions of the Act which authorise an extension of the limitation period.  I will then summarise the issues raised before the learned primary judge, the evidence relating to those issues, and her Honour's conclusions upon that evidence.  I will then proceed to a discussion of the arguments which arise on the appeal.

The Act

  1. Section 31 of the Act provides as follows:

"Ordinary actions

(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.

(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court–

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

(3) This section applies to an action whether or not the period of limitation for the action has expired–

(a) before the commencement of this Act; or

(b)before an application is made under this section in respect of the right of action."

  1. Section 30 of the Act provides instruction in relation to the interpretation of the terms of s 31 of the Act. Section 30 provides as follows:

"Interpretation

(1) For the purposes of this section and sections 31, 32, 33 and 34–

(a) the material facts relating to a right of action include the following–

(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

(ii) the identity of the person against whom the right of action lies;

(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv) the nature and extent of the personal injury so caused;

(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(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;

(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.

(2) In this section–

appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts."

The issues before the learned primary judge

  1. In order to qualify for the exercise of the discretion to grant the plaintiff an extension of time for bringing his action against the first defendant until 16 August 2002, the plaintiff had to show that a material fact of a decisive character was not within his means of knowledge prior to 15 August 2001. In order to qualify under s 31(2)(a) of the Act against the other defendants, the plaintiff had to show that a material fact of a decisive character was not within his means of knowledge prior to 17 December 2006. 
  1. Against the first defendant, the plaintiff contended that the material facts of which he was unaware until after 15 August 2001 were:
  1. that the sexual abuse to which he had been subject had had a substantial adverse impact on him:  it was only when he read newspaper articles in late 2001 and 2002 that he realised that the abuse by Knight had had a significant adverse effect on him; and
  1. that the St Paul’s Headmaster, Mr Case, had been warned about Knight by the Brisbane Boys College ("BBC") Headmaster, Mr Thomson, before Knight was employed at St Paul's.  It was only in March 2006 that the plaintiff became aware of this warning.
  1. Against the second, third and fourth defendants, the plaintiff contended that it was only in October 2007 that he knew for the first time, as a result of the investigations undertaken by his lawyers, that Knight had been dismissed by the second defendant in May 1978 as a result of the investigation of allegations of improper conduct on his part, that the dismissal was subsequently rescinded, and that Knight was permitted to resign. He was subsequently given a reference by the fourth defendant, Mr Hopgood, which Knight was able to use to seek employment in Queensland.
  1. The learned primary judge summarised the matters required to be proved by the plaintiff in order to satisfy s 31(2)(a) of the Act:[1]

"… The applicant must show that the facts of which he was unaware were material facts and then he must establish that they were of a decisive character. If that is established then the next step is to ascertain if those facts were within the means of knowledge of the applicant before the specified date (Dick v University of Queensland [2000] 2 Qd R 476)."

  1. The second, third and fourth defendants also raised an issue as to whether s 31(2)(b) of the Act has been satisfied. They argued that, as against them, there was no evidence to establish the right of action which the plaintiff seeks to pursue in his action. In particular, they argued that when the Minister and other agents of the State of South Australia performed their functions under the Education Act 1972 (SA) they were not duty-bound to take care to prevent harm to persons outside South Australia by "naming and shaming" Knight.  Accordingly, so it was said, the plaintiff should not be granted an extension of time, and the proceedings against these defendants by the plaintiff and first defendant should be dismissed.
  1. The defendants also argued that, even if the discretion conferred by s 31(2) of the Act was enlivened, the lapse of time has been such that the discretion should be exercised against the plaintiff because the plaintiff's claims can no longer be tried fairly.

The evidence and the conclusions of the learned primary judge

The plaintiff's understanding of the effect of the abuse upon him

  1. In 1988 the plaintiff attended a lecture in the course of his medical studies at university. In that lecture he was informed that sexual abuse of children could cause lasting emotional and psychological harm to its victims. Shortly after the lecture the plaintiff suffered adverse psychological symptoms. He also began using marijuana. From the medical reports available in relation to the plaintiff, it would appear that the plaintiff has given varying accounts of the extent of his marijuana use at this time. I make this point because, if the matter were to proceed to a trial, there would be an issue as to the extent to which the plaintiff's psychological problems were the result of abuse by Knight rather than the plaintiff's substance abuse.
  1. The learned primary judge summarised the evidence relating to the adverse symptoms suffered by the plaintiff in 1989:[2]

"In the present case there were some facts in evidence by 1989 or early 1990, when he repeated third year, that the applicant was experiencing some psychological symptoms. There was evidence of depression, exam failure, relationship breakdown, and drug use. He knew he had been sexually abused and he knew by third year that his life was disintegrating and he needed to take a break. He knew therefore that his psychological well being was in fact being affected. The question is whether it was actually within his means of knowledge that the sexual abuse at the hands of Knight was the cause."

  1. In a passage which attracted particular criticism from the first defendant on the hearing of the appeal, her Honour said:[3]

"As was stated in Pizer v Ansett Australia Ltd ([1998] QCA 298), the question of whether a person has taken all reasonable steps to ascertain the nature and extent of the injury depends on the nature of the warning signs of the injury and the extent to which other facts call for a prudent enquiry to protect one’s own health and legal rights. In the applicant’s case there were some warning signs. He was experiencing some symptoms within 12 months of his psychology lecture and he not only failed third year but subsequently took a year off in 1991. Should these factors have made him aware of the impact the abuse was going to have on his life such that he should have instituted action at that point in time? Failing a year, experiencing a relationship breakdown, and experimenting with drugs are not uncommon events in a student’s life. I consider that it was understandable that the applicant did not necessarily attribute these events to his sexual abuse."

  1. The first defendant argues that the last sentence in this passage reveals that her Honour was distracted from the real issue; namely, whether the plaintiff realised, or should reasonably have come to the realisation, that he had been adversely affected in a significant way by the abuse he had suffered. It is convenient to record at this point my opinion that her Honour's remark was merely an explanatory introduction to her Honour's reasons for accepting as credible the plaintiff's evidence on this issue. That this is so is apparent from what her Honour went on to say:[4]

"Even if he did wonder if the abuse was the cause of these difficulties there was nothing at that point in time to indicate that he would suffer any long-term effects from the abuse. I do not consider that at that point in time he knew that the abuse would have long term effects because he managed to get his condition under control around 1991."

  1. The learned primary judge went on to make findings favourable to the plaintiff upon the issue as to the reasonableness of his appreciation of the possibility that he might have been adversely affected in a significant way by the abuse he had suffered. Her Honour said:[5]

"… even if a reasonable person in his position at that time would have suspected that abuse was the cause, a reasonable person would also have understood that by commencing an action then they would have to re-live the abuse over a period of time while the action was on foot. They would also be subject to the stress associated with potential litigation, and with potential adverse consequences on their health at the time. In 1991 he appeared to be recovering. The very thing which occurred in 2002-2003 shows why, in about 1991, it was not in the applicant’s own interest, and taking into account his personal circumstances, to bring a cause of action. Instead, at that time he chose to try to manage his condition and establish himself in a career for life which he did with some success.

The question of whether a person has taken all reasonable steps is to be determined from the point of view of a reasonable person, with the knowledge and experience of the applicant. At the time the warning signs began to manifest, the applicant was a medical student with knowledge of the consequences of sexual abuse but he had turned his mind to the question and considered he had not been significantly affected. In fact, he successfully got on with his life. He graduated, had a successful marriage, and a medical practice which was financially successful.

I accept the evidence of the applicant that it was not until the media articles in late 2001 and early 2002 that his abuse at the hands of Knight began to weigh on his mind and trouble him in a significant way. It was at that time he mentioned these matters to a medical practitioner and he sought counselling and then treatment from a psychiatrist. I accept that it was really not until 2002-2003 that he was diagnosed with a psychiatric condition and that he knew his condition was having significant affects on his relationship with his wife and his ability to work.

I do not consider that these material facts of a decisive character were within his means of knowledge before 2002 or that was within his means of knowledge that there was a worthwhile cause of action prior to that time."

  1. The learned primary judge concluded that a reasonable person in the plaintiff's position would not have taken it upon himself to enquire about the possibility of legal action against Knight or the school authorities until his problems became such as to interfere with his earning capacity. Her Honour said:[6]

"I consider that a reasonable person in the applicant’s position would not have made enquiries to protect his health and legal rights by 1991 when he had some manifestation of the warning signs. As Macrossan J, as he then was, said in Moriarty v Sunbeam Corporation Limited ([1988] 2 Qd R 325, 333):

'In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it.

He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s.30(b) comes down to: Taggart v The Workers’ Compensation Board of Queensland [1983] Qd.R. 19, 23, 24 and Do Carmo v Ford Excavations Pty Ltd (1984) 154 C.L.R. 234, 251 per Deane J.'"

The first defendant was warned about Knight

  1. The learned primary judge then turned to the issue concerning the warning given to Mr Case by Mr Thomson before Knight was employed by the school. In this regard, her Honour summarised the evidence in the following terms:[7]

"… The solicitor for the applicant states that, whilst a claim was filed in 2002, this was done as a matter of routine and there was no real evidence to support the claim against the first respondent until 11 August 2005, when he learned, as a result of press reports, that Knight had been the subject of previous complaints. After investigations, he took a statement in March 2006 from the Headmaster of BBC, the school which had previously employed Knight and learned that the Headmaster of St Paul’s had been warned prior to employing Knight that he had been the subject of complaints at BBC. In August 2006, the solicitor then received, during the course of disclosure from the first defendant, a copy of a statement from the Headmaster of BBC that he had been contacted prior to Knight’s appointment. Further disclosure in February 2007 revealed a statement from the BBC headmaster made in 2002 indicating that he warned the St Paul’s headmaster at the time of the dangers of employing Knight at the time he was engaged. This statement provides:

'15. Mr Case said that Knight had applied for a position at St Paul’s. He asked if I could give him the background of why he had left BBC.

16. There was a code of conduct between headmasters which required that we should be honest with each other in giving references about employees.

17. At the time of that telephone conversation the details of the allegations against Knight were clear in my mind. I made it clear to Mr Case that Knight had been discharged from BBC on the grounds of irregular conduct in his attitude towards the boys.

18. I definitely gave Mr Case reasons for Knight’s discharge. The reasons were probably given in more general terms than in particular detail.

19. I told Mr Case that Knight had made no attempt to defend himself.

20. I heard later that St Paul’s had appointed Knight.
I recall that I was surprised at Mr Case’s decision.'" 

  1. It is convenient to note here the earlier paragraphs of Mr Thomson's statement because they shed important light on the reasons said to have been given by
    Mr Thomson to Mr Case for Knight's discharge:

"…

  1. Gregory Knight was employed at Brisbane Boys College as a teacher for about one year in 1980.  He was an assistant music teacher and resident assistant housemaster in Philp House, one of the boarding school residences.
  1. Knight was an affable fellow.  He was married with one child in what appeared to be a good family relationship.  He was proficient as a music teacher and quite a good musician.  He was not outstanding in his role as assistant housemaster.
  1. Until the end of the 1980 school year, there was no reason to question his performance.
  1. Towards the end of 1980 two senior boys came to my office late one afternoon to report to me behaviour by Knight which the boys were unhappy about.  Both boys were House Seniors in their final year of school.
  1. One of these House Seniors, the one in Philp House, had sustained an injury to his groin.  He went to the shower in the dormitory but found that the water was cold.  Knight invited him into his private quarters to shower in hot water saying he needed hot water on the injury.  I can't recall the precise details of the complaint.
  1. The other House Senior advised me that Knight insisted that the boarders under his supervision could not wrap towels around their waist when going to and from the showers.
  1. I have spoken to both these complainants in the last week or so to verify these details.  My memory of these events is not as clear as it once was.  The boy (now man) who had the groin injury cannot recall exactly what happened in the private quarters.
  1. Armed with this information I saw Knight immediately and put to him the allegations by the boys.  He made no attempt whatever to deny the allegations or defend himself in any way.  I remember that quite clearly.
  1. I spoke to the Chair of the School Council either that afternoon or the following day and we decided to dismiss Knight.
  1. I spoke to Knight and told him of our decision.  Again, he did not try to justify his actions and left the school quietly.
  1. Some time after Knight left the school, the BBC school chaplain reported to me that some boys had complained that Knight had been teaching them how to arouse themselves.
  1. Some time after this episode and before Christmas 1980, Gilbert Case phoned me.  I knew him reasonably well on a professional basis from having attended meetings and functions at which he was present.

…"

  1. I pause here to note that Mr Thomson is unable to "recall the precise details of [one of] the complaint[s]" against Knight. Further, Mr Thomson says that he "gave Mr Case reasons for Knight's discharge.  The reasons were probably given in more general terms than in particular detail."  The vagueness of Mr Thomson's recollection is understandable, but it is a matter which must concern a court charged with responsibility for allowing the case to proceed to a trial.
  1. Mr Case's version of this conversation was also in evidence. In correspondence with the first defendant, Mr Case's solicitors summarised Mr Case's response as follows:

"1.The information contained in paragraphs 6 to 13 were never brought to our client's attention.  Both our client and ourselves are understandably concerned that Mr Thomson must have initially advised the taker of his statement that there had been some touching or attempted touching of the genitals and when the draft statement was subsequently provided to Mr Thomson this allegation was recanted (paragraph 7).  This is a most serious allegation to be apparently made against Mr Knight and then withdrawn.  It seriously calls into question the accuracy of Mr Thomson's recollection of all other relevant interactions between he and Mr Case.

  1. The allegation (as it then stands) that Mr Knight allowed the student to have a hot shower in his quarters (when cold water was only otherwise available) is unremarkable and one wonders why it was the subject of any complaint.
  1. Our client agrees with the substance of paragraphs 17 and 18 in that Mr Knight was let go from BBC because of an 'irregularity'.  Mr Case denies that he had been made in any way aware that the 'irregularity' amounted to sexually inappropriate conduct.

Our client believed, on Mr Thomson's advices, that the irregularity (which is disputed by Mr Thomson) was that Mr Knight had supplied condoms to some senior students.

  1. With the greatest of respect to Mr Thomson his statement talks in generalities that our client was supposed to have interpreted as amounting to sexually inappropriate conduct.  One can hardly believe that our client would have employed Mr Knight in circumstances when he would have known or should reasonably have known that Mr Knight had acted sexually inappropriately with students. In all the circumstances such a proposal seems untenable.
  1. Equally, when Mr Thomson discovered that our client had employed Mr Knight one would have thought it reasonable for him to have spoken again with Mr Case to ensure that the conduct which Mr Thomson describes as 'irregular' was particularised to our client so that Mr Knight's continued employment could be reconsidered.
  1. Equally, it should be borne in mind that Mr Thomson (given the significant adverse publicity that the Lynch matter has attracted in the popular media) may in some way be attempting to ensure that either himself or his former employer are not subject to similar criticism.
  1. Moreover it would appear that Mr Thomson does not recollect that he had a further conversation with Mr Case in respect of Mr Knight a number of years later.  It may be that Mr Thomson is recollecting the second conversation that he has had with Mr Case.  It may be that Mr Thomson is confused in thinking that both conversations took place as one conversation.  Mr Case agrees that in their second conversation Mr Thomson indicated that the incidents leading to Knight’s dismissal were more serious than indicated in his first conversation with our client.  Mr Case further instructs that even at that time Mr Thomson did not indicate the exact nature of allegations made against Mr Knight.  Importantly this conversation took place at the same time as the process which led to Mr Knight’s dismissal (late October 1984)."
  1. The plaintiff adduced evidence of a statement by Mr Case in which he said, inter alia:

"I told you that when Knight was appointed, I believe he had previously been employed at Brisbane Boys' College.  He had left there, I believe, because he had provided condoms to students in the boarding house.  I am quite vague about the details here.  This occurred in late 1980 from memory, ie 22 years ago.  Knight's dismissal was 18 years ago!

I believe that I was being advised to be cautious in appointing him, but what I was told did not constitute grounds for not appointing him to the position applied for.

My memory is that there were no other reasonable candidates for the position of Head of Music (in fact, virtually the only Music teacher) at St Paul's.  Knight started in 1981, and performed creditably in the role, and without apparent problems until the matters which led to his immediate dismissal.

In sum, I believe the appointment was made with caution; Knight performed competently and with success; and Knight was dismissed as soon as an allegation against him was found to have any substance."

  1. I pause here to note that there is evidently a significant contest between Mr Thomson and Mr Case as to the terms of the discussion which occurred between them about the circumstances of Knight's dismissal by Mr Thomson.
  1. Her Honour summarised the plaintiff's argument in relation to this aspect of the issue arising under s 31(2)(a) of the Act in the following terms:[8]

"The real question is whether it was within the applicant’s means of knowledge that he had a worthwhile cause of action against the school as opposed to the perpetrator of the abuse prior to the filing of the claim. The question is whether it was within his means of knowledge that the school could in any way be held responsible for the actions of the teacher prior to 2006. The applicant says he did not have a good case against the school for vicarious liability until he knew of the warning by the BBC headmaster to the St Paul’s headmaster which did not become fully revealed until August 2006 when a copy of the 2002 statement was obtained. The applicant submits that it was only at that point that he, or a reasonable person in his position, would be able to believe that he had a cause of action worth putting on the basis that it could succeed. The applicant submits that before this information became available he did not have satisfactory evidence that anyone knew of Knight’s conduct.

Accordingly, the applicant submits that the material facts of a decisive character were not within his means of knowledge until his solicitors conducted their investigations and received disclosure of the following facts:

  1. That the first defendant, by the St Paul’s headmaster, had been informed that complaints had been previously made about Knight whilst he was employed at another school;
  1. The identity of the other school from which the complaints emerged, namely BBC; and
  1. That the St Paul’s headmaster confirmed he had been contacted by the BBC headmaster about Knight before he decided to employ him."
  1. Her Honour accepted the plaintiff's argument for the following reasons:[9]

"It is clear that Knight conducted tuition alone, for long periods, in soundproof rooms without supervision. The allegations against the first respondent are that it failed to take proper care in selecting persons to carry out music tuition, that it failed to properly supervise Knight, and that it permitted the applicant to undergo music tuition when it knew, or ought to have known, that such action would be likely to result in injury to the applicant. There is some evidence that both employees and students of the school had made derogatory comments indicating sexual activity between the applicant and Knight. The applicant also gave evidence that he had told the headmaster of the abuse by Knight but that he had been rebuked by the headmaster and told that his scholarship and that of his brother could be in jeopardy. There is also evidence that in January 2005 the applicant told the Medical Board that he believed his claim would settle out of court. I do not think that such a statement however indicates that he in fact considered that he actually had a viable cause of action against the school.

I do not consider that these facts would have acquired a decisive character prior to March 2006 because a reasonable person knowing those facts and having taken appropriate advice would not have considered that he had a right of action against the school with reasonable prospects of success before March 2006.

I consider that until the facts were known of the nature of the conversation between the two headmasters and knowledge was obtained of the specific warning given to Mr Case the prospects of success in proving that the first respondent was liable, directly or vicariously, for Knight’s actions were not strong. It is clear that these material facts were only discovered through the work of the applicant’s solicitors and, therefore, were not within his means of knowledge."

  1. Her Honour then went on to explain her reasons for concluding that these facts were material facts of a decisive character notwithstanding the circumstance that the plaintiff had actually commenced his action against the first defendant more than four years before these facts came within his means of knowledge:[10]

"I consider that because these facts go to the issue of negligence or a breach of duty, as well as the question of the identity of the person against whom the action lies, it is a material fact of a decisive character within the meaning of the section.

Whilst the applicant commenced his action before material facts of a decisive character were within his means of knowledge, this is not significant as the statute is not expressed in such a way as to exclude such a case from relief (Opacic v Patane [1997] 1 Qd R 84). In State of Queensland v Stephenson ((2006) 226 CLR 197, 203), it was expressly stated that, whilst on the face of it s 31 was concerned with an extension before the institution of an action, the section may also be utilised where an action has already been instituted. I consider that Mr Singh’s affidavit explains why the proceedings were instituted before March 2006 but in the circumstances I consider that a material fact of a decisive character was not within his means of knowledge prior to that time.

Accordingly, I consider that the applicant has established that a material fact of a decisive character was not within his means of knowledge until March 2006."

The plaintiff's case against the second, third and fourth defendants

  1. In relation to the second, third and fourth defendants, the evidence was that these defendants caused Knight to be dismissed from his employment as a teacher in South Australia from 31 May 1978. The dismissal occurred consequent upon the findings of an investigation into allegations of "improper and disgraceful conduct" on Knight's part. The findings of the investigation were signed by Mr J M Mayfield, the Director of Educational Facilities within the South Australian government. Mr Mayfield found that Knight had sexually abused boys in his care and recommended to the Minister at that time, the fourth defendant, that Knight be dismissed from the teaching service.
  1. On 14 June 1978 the notice of dismissal was rescinded and his resignation was accepted. It appears that Mr Mayfield was involved in the making of this decision by the fourth defendant.
  1. The plaintiff's case against these defendants is that they knew that there was sufficient cause for disciplinary action against Knight to warrant his dismissal as a teacher by the fourth defendant in his capacity as agent of the State,[11] and that the retraction of his dismissal allowed him to present himself to other potential employers involved in the education of children as a person with an unblemished record. 
  1. For the purposes of s 31(2)(b) of the Act, her Honour summarised the plaintiff's case of negligence against the second, third and fourth defendants:[12]

"It is alleged that the second and third respondents breached their duty by rescinding Knight’s dismissal and failing to ensure his dismissal was endorsed on his record, and that the circumstances of his dismissal were known to principals where he was engaged. It is alleged that this duty was breached in circumstances where the respondents knew that, by rescinding his dismissal, he would be able to seek employment elsewhere as a teacher by relying on his South Australian registration and that he might obtain references from principals with whom he had worked and who were unaware of the circumstances of his dismissal.

It is also alleged that the fourth respondent breached his duty by providing him with a reference in circumstances where it was foreseeable that he would rely upon the reference to gain employment. The allegation is that when the fourth respondent wrote the reference he specifically referred to his suitability in dealing with teenagers."

  1. The learned primary judge summarised further evidence relating to the fourth defendant in the following terms:[13]

"On 13 December 1978, the fourth [defendant] wrote a reference for Knight on a South Australian Parliamentary letterhead recommending him for music conducting and tuition. The letter stated:

'… Mr. Gregory Knight has been Music Director of the Noarlunga City Concert Band for a little over 12 months. During most of that time I have occupied the position of President of the Band. I can, therefore, testify to his ability, enthusiasm and qualities of leadership.

The Band is composed of players who are amateurs and who are involved in a recreational sense. There is a considerably large range from teenagers to septuagenarians and also varying expectations as to the nature of the music which should be played, how competitive the Band should become and the sort of ‘jobs’ that it should undertake. Welding such a divers[e] collection of musical and semi-musical humanity into any sort of a competent aggregation, is therefore, no mean feat and this Mr. Knight has been able to achieve…'

This reference, together with a reference from a headmaster at a school in South Australia at which Knight had previously taught, were in the possession of the headmaster at St Paul’s at the time Knight was employed. When Knight applied for registration as a teacher in Queensland he supplied his South Australian registration issued in December 1978."

  1. The plaintiff's contention is that, as a result of the acts and omissions of the second, third and fourth defendants, Knight was able to present himself to potential employers and to those charged with responsibility for the registration of teachers in Queensland as a registered teacher in South Australia despite having been found to have so conducted himself as to warrant his dismissal from the teaching service of South Australia.[14]  The learned primary judge summarised the evidence put before her Honour by the plaintiff in support of his contention on this issue:[15]

"… it appears that the applicant will rely on the evidence of Mr Neville Fry, the executive officer of the Queensland Board of Teacher Education. His evidence is that in 1980 South Australia and Queensland were the only States that had a Teacher Registration System and that the Queensland Teaching Registration Board had a close working relationship with the Registration Board in South Australia. His evidence is that generally speaking the focus of the Board was whether the teacher had the requisite qualifications for registration in Queensland. He states that Knight’s registration in South Australia was relevant in determining his suitability for registration in Queensland, particularly as he had not completed an accredited course of teacher education in Queensland. The applicant states that the evidence is that if an applicant for registration lacked the qualifications for registration, then the Queensland Board would consider other information, such as references and the status of the interstate registration, to determine suitability for Queensland registration. Essentially, they [sic] submit that this registration was then relevant to the decision by the Headmaster of St Paul’s to employ Knight.

The applicant has, therefore, pointed to the fact that there is some evidence that the South Australian registration and the references would have been considered by the Board of Teacher Education Queensland in registering Knight and by the Headmaster of St Paul’s in employing him. In relation to this evidence, it is clear that this evidence is from a current employee of the Board about what he considers the Board practice would have been in 1980 and 1981. There is no direct evidence that the Queensland Board did in fact rely on the references or the fact of South Australian registration. There is no evidence from a member of the Board or evidence as to what they actually considered. The Application Form and the correspondence between Knight and the Board are in evidence. However, that form does not ask if the candidate was registered in another State. That form seeks information about teaching experience and formal qualifications rather than previous registration elsewhere. It would seem that Knight was not initially registered in Queensland because he did not have the formal tertiary qualifications.

Neither is there evidence from the Headmaster of St Paul’s that he actually relied on the South Australian registration or the references, although it would appear they are on file. Mr Case, the headmaster, has provided statements and he does not in any way state that he relied on the references, that he read them, or was even conscious of them. In fact, his evidence is that '…there were no other reasonable candidates for the position of Head of Music (in fact, virtually the only Music teacher) at St Pauls.' Mr Case does refer to his conversation with the Headmaster of BBC and state[s], '…I believe that I was being advised to be cautious in appointing him, but what
I was told did not constitute grounds for not appointing him to the position applied for.'

Accordingly, there may be evidence that Knight’s registration in South Australia was still current and that the references were on the file at both St Paul’s and the Queensland Teachers Registration. There is, however, a question as to whether they were in fact relied upon by the Board or the headmaster in the decisions they came to in deciding to register and employ Knight. There is no direct evidence that they were relied upon."

  1. I pause here to note that although, as the learned primary judge observed, there is no direct evidence from the Board of Teacher Education Queensland or Mr Case that they did in fact rely upon references provided to it or Knight's South Australian registration, neither is there direct evidence that these matters were immaterial to Mr Case's decision to engage Knight.
  1. The learned primary judge went on to resolve in the plaintiff's favour the issue posed by s 31(2)(b) of the Act as to whether there was a prima facie case of liability against the second, third and fourth defendants. Her Honour said:[16]

"Clearly, a detailed examination of the Education Act 1972 (SA) is a matter for trial and will be the focus of considerable argument with respect to the duty of care owed. I consider, however, that there is a sufficiently arguable prima facie case that in exercising their powers under that Act the second and third respondents owed a duty of care to a pupil who might suffer abuse as a result of an act or omission on their part. Moreover, the applicant submits that this was not a mere failure or omission to exercise a power but rather those respondents purported to exercise their powers and that relying on the decision Council of the Shire of Sutherland v Heyman ((1985) 157 CLR 424) a duty of care is more likely to be found. Similarly, the applicant submits that when the fourth respondent gave the reference with the specific knowledge that he had of Knight’s behaviour it is also arguable that the fourth defendant owed a duty of care.

In examining whether there is evidence to establish a right of action I consider that the applicant has established that there is some evidence to establish a right of action and that it is arguable that a duty as alleged [exists] … There was foreseeability of harm and there were positive acts on the part of the respondents which created or increased the risk of injury to pupils who would be taught by Knight irrespective of where he taught them. There was also a vulnerable class, namely, pupils and arguably the respondents should have known the risk of harm to that specific class. Arguably, there was also a power to protect a specific class from harm. Knight was allowed to continue to hold himself out as a registered teacher and he was given references. As Warren CJ stated in Tania Kirkland-Veenstra v David Stuart ([2008] VSCA 32 at [20]-[21]):

'Whether a duty of care exists in a novel situation is a question of law but is determined by reference to the factual context. Tests for foreseeability, proximity, incremental development by analogy and salient features fall to be considered.

The High Court has expressed the approach as one considering ‘salient features’ of the factual scenario and looking to the ‘totality of the relationship’. There is no single, formulaic test to be applied. Consideration should be given to all relevant factors, such as: the reasonable foreseeability of the risk of harm, the defendant’s knowledge of the risk, the control exercisable by the defendant over the situation and the vulnerability of the person or persons at risk. In addition, analogous situations in the authorities provide guidance. The factual similarity or difference between decided cases and the case at hand enable incremental development.'

Because there is no single formulaic test to be applied and because all the relevant factors need to be considered those matters should be determined by the trial judge. In this regard it is important that a plaintiff should not be denied the fundamental right to have a court decide the case on '…on the entirety of the evidence and argument.' (Batistatos v Roads & Traffic Authority (NSW) [2006] 80 ALJR 1100, 1130.)"

  1. In relation to s 31(2)(a) of the Act, there was evidence from the plaintiff's solicitors as to how and when the plaintiff became aware of the factual basis for his case against the second, third and fourth defendants. Her Honour summarised this evidence and her conclusion on this point as follows:[17]

"The solicitor for the applicant states that he was unaware of these facts until he received a letter from the solicitors for the first defendant on 6 February 2007 which made him aware of the circumstances in South Australia for the first time. The applicant states that those matters were material facts of a decisive character which were not within his means of knowledge until the first defendant’s solicitors brought them to the attention of his solicitors.

Furthermore, the applicant submits that these factors go to the fact of the occurrence of negligence or breach of duty, as well as the identity of the person, as required by s 30.

I consider that the evidence indicates that these references did not become known to the applicant until February 2007 and that they were material facts as they made him aware for the first time of the involvement of the second, third, and fourth respondents."

  1. The learned primary judge concluded that the plaintiff had brought himself within s 31(2) of the Act.[18]  Her Honour appreciated that the circumstance that the plaintiff had brought himself within the terms of s 31(2) of the Act did not mean that the discretion conferred on the court by that provision should be exercised in his favour.  Her Honour went on to consider whether there was a sufficient possibility of a fair trial of the plaintiff's action to warrant the exercise of the discretion to extend time in his favour.

The possibility of a fair trial

  1. The learned primary judge made findings which led her Honour to the conclusion that the delay which had occurred in the bringing of the plaintiff's action was not such as to deny the possibility of a fair trial of his action against the defendants other than the first defendant.[19]  Her Honour summarised her conclusions as to the effect of the evidence as follows:[20]

"In this regard, Counsel for the second and third respondents pointed to the fact that some crucial and relevant personnel in the respective teacher registration boards cannot be found. Furthermore, '…because the boards are different and the registering authorities are different and because people have retired and long gone …they don’t have a clear recollection.' Counsel for the second and third respondents submit that '…a 30 year delay leads to the inevitable inference of prejudice because of dimmed recollections.' It is clear however that the files of the Queensland Board are in evidence and the weight to be given to such documents and the evidence of the witnesses is a matter for the trial judge having heard all of the evidence presented at the trial.

The South Australian investigations identified two former State Government employees who were involved in the decision to rescind the dismissal of Knight in 1978 namely Colin Laubsch the Director of Personnel and John Mayfield the Director-General of Education who had also conducted the investigation into the allegations against Knight. Mr Laubsch died in 1991 and Mr Mayfield died in 2006.

The dismissal in South Australia occurred 30 years ago and the registration in Queensland some 28 years ago and I accept that memories will obviously have dimmed, however, I consider that there is ample documentary evidence on file which sets out the Report of the investigation in full and the conclusions. The document dated 16 May 1978 is addressed to the Minister of Education and entitled 'Enquiry into allegations concerning teacher Gregory Knight' and records a [number] of factual findings against Knight in specific detail. That document stated that the Director of Educational Facilities had found that Knight was guilty of improper and disgraceful conduct and recommended to the Minister that he dismiss Knight from the teaching service. In any event there is clear evidence that the Minister dismissed Knight from the South Australian teaching service as a consequence of the investigation.

Indeed it was Hopgood who then dismissed Knight and subsequently revoked that dismissal. He is available to give evidence. Furthermore, it is not as if Knight was just one of many hundreds of teachers in South Australia that Hopgood as Minister was responsible for but rather Knight was personally known to Hopgood and the circumstances would have had a particular resonance.

Whilst Mr Hopgood is elderly he has stated that he does have '…a reasonable recollection of the basic sequence of events up to and including the provision of the reference.' As he played in the band with Knight it is clear he knew him personally and he says as much in his reference. I do not consider in the circumstances that the second, third, and fourth respondents would be prejudiced in their ability to meet the allegations against them even given this effluxion of time.

Counsel for the second and third respondents also submitted that there is evidence of a failure by Mr Fry from the Queensland Board to recall and that '…the failure to be able to recall whether he had dealings with the file or what they were and the way in which he’s pieced together what might have been the practice' is of concern. Counsel made particular reference to his concern in relation to '...evidence purportedly to be given by way of reconstruction.' Counsel submitted that this factor was particularly prejudicial in this case and will prohibit a fair trial. Reconstruction is obviously a matter for the trial judge and I do not consider that the potential for prejudice in this case is such that it will not allow a fair trial.

One of the major issues at trial relates to the conversation between Mr Case and Mr Thomson and what the precise content of that conversation was and whether a warning was given. Both Mr Case and Mr Thomson are alive and both remember the conversation although their memories of the conversation would appear to vary in relation to the precise content of the conversation. Importantly both have given statements about the conversation and both are available to give evidence.

The applicant relies on the practices at the school in the 1980s and Mr Case can give this evidence as can the applicant. Similarly, they can both give evidence as to the conversation where the applicant is alleged he told Mr Case of the abuse."

The arguments on appeal

  1. I turn now to consider the arguments agitated on appeal.

Section 31(2)(a) of the Act

  1. The defendants argue that it is indisputable that, as early as 1988, the plaintiff had the means of knowledge of the likely deleterious impact upon him over time of the abuse suffered by him. While that may be so, as we have seen the plaintiff has the benefit of two important findings by the learned primary judge. These were, first, that it was not unreasonable of a person in the position of the plaintiff not to have come to a settled appreciation that the abuse he had suffered was going to have the debilitating effect upon him which eventuated in 2002, and, second, that he did not come to that appreciation until that time.
  1. In my respectful opinion, while it may be said that these findings reflect a generous view in terms of the plaintiff's credibility, the learned primary judge had the benefit of seeing the plaintiff cross-examined. It was, I think, open to the learned primary judge to find that the plaintiff did not act unreasonably in failing to come to an appreciation of the substantial effect of the abuse upon him until his ability to earn his living was adversely affected. In 1988 the plaintiff was aware that his psychological wellbeing could have been adversely affected by the sexual abuse which he had suffered, but having turned his mind to the issue, he concluded that the abuse which he had suffered had not adversely affected him to any significant degree. He did not suffer any economic loss as a result of the alleged manifestation of natural difficulties until 2002 at the earliest. Further, it is not the policy of the courts in the application of s 31 of the Act to penalise an injured person who makes a reasonable decision to try to get on with life rather than a decision to litigate upon a questionable basis. In Pizer v Ansett Australia Limited,[21] Thomas JA referred to the earlier observations of this Court in Healy v Femdale Pty Ltd[22] saying:

"The question whether such a person has taken all reasonable steps to ascertain the nature and extent of the injury

'… depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability of effect upon her working capacity'.

There is no requirement, actual or notional, to take 'appropriate advice' or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the plaintiff to have done so. The answer to this then depends upon the primary facts concerning the level of seriousness of the plaintiff’s symptoms and of the warning signs which she undoubtedly had."

  1. In Pizer v Ansett Australia Limited,[23] Thomas JA said:

"In the present case leave was granted to appeal, mainly on the Court’s perception that the case was reasonably arguable, and that the effect of the decision would produce significant consequences. In appeals of the present kind, when the material fact concerns the nature and extent of personal injury ('The nature and extent of personal injury so caused' is expressly acknowledged as a material fact relating to the cause of action in s 30(1)(a)(iv) of the Act), questions of degree are necessarily involved. At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it. At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension, and an appeal court could likewise readily correct an erroneous decision. Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff’s knowledge and as to whether the reasonable person contemplated by s 30(b), endowed with such knowledge and having taken appropriate advice, would have brought proceedings. Appeals involving extensions of periods of limitation commonly raise these particular issues which involve factual assessments. Although the eventual decision is discretionary ([s] 31(2) '… the Court may order…') 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 (Cf Zuvela v Cosinarnan Concrete Pty Ltd (1996) 71 ALJR 29, 31)."

  1. Accordingly, while it may be said that the learned primary judge's finding of fact in the plaintiff's favour was generous to him, I am unable to say that her Honour's finding on this issue was not open to her on the evidence.
  1. Next, the first defendant argues that, because the plaintiff commenced his action in August 2002, knowledge of the fact that the headmaster of St Paul's had been warned about Knight cannot have been knowledge of a material fact of a decisive character.
  1. In some cases the very fact that an action has been commenced before the putative decisive fact has become known may stand, if unexplained, in practical terms as a contradiction of the proposition that a reasonable person in the claimant's position would not have commenced the action without knowledge of that fact. The decision of this Court in Castillon v P&O Ports Ltd (No 2)[24] was such a case.  But it is also well-settled, as a matter of law, that a material fact which becomes known after proceedings have been commenced may be of a decisive character.[25]  This case is not a case where the fact that an action has previously been commenced and pursued itself stands unexplained as a practical demonstration that newly discovered facts were not of a decisive character. 
  1. In this case there was evidence from the plaintiff's solicitor that the action had been commenced to preserve the plaintiff's position such as it was. If one accepts that evidence, as the learned primary judge did, then the fact that the action had previously been commenced is deprived of the probative force it would otherwise have upon the issue whether a reasonable person in the position of the plaintiff would have commenced the action without knowledge of the new fact. It was, therefore, open to the learned primary judge to conclude that the attitude of a reasonable person in the position of the plaintiff to the pursuit of an action against the first defendant would have been materially different after the revelation of March 2006. It was only at that time that the plaintiff knew that the headmaster of St Paul's had been warned against employing Knight at the school by the headmaster of BBC.
  1. If Mr Case were alerted to Knight's sexual proclivities in relation to students in his care, that fact would be material to St Paul's liability in negligence for the decision of Mr Case to engage Knight, as opposed to its vicarious liability for Knight's misconduct. The case against the first defendant, as a party vicariously liable for the criminal acts of Knight, was far from straightforward, as is apparent from the decision of the High Court in New South Wales v Lepore.[26]  As the discussion in that case shows, our law of negligence does not readily accommodate vicarious liability for criminal actions of an employee.  Without proof of the warning to Mr Case, the plaintiff's case of negligence on the part of the first defendant itself was significantly weaker for the purposes of s 31(2)(a) of the Act.

Section 31(2)(b) of the Act and the second, third and fourth defendants

  1. The second and third defendants argue that under the Education Act 1972 (SA), no duty of care was owed by the Minister for Education or the State itself to ensure that pupils in other States who might suffer abuse at the hands of sexual predators were protected from them.  To frame the question in this way is to deflect attention from the case actually put by the plaintiff against these defendants.  That case is not based merely upon the omission of the South Australian authorities to take steps positively to protect pupils in other States from Knight's predatory inclinations, but also upon the circumstance that the withdrawal of the notice of dismissal, allowing Knight to resign as a teacher, and the fourth defendant's positive reference in favour of Knight, served to suppress the truth about Knight's sexual proclivities at the risk of harm to children with whom he might come into contact in the future. 
  1. It is, therefore, wrong to argue, as these defendants did, that the gravamen of the case against them is one of omission only.[27]  This is a case where it is said that the powers conferred on the South Australian authorities were wrongly exercised so as to suppress the truth about Knight's harmful proclivities.  In suppressing the truth, these defendants were, at least arguably, giving a misleading picture of Knight which might be relied upon by those whose responsibility it was to ensure that pupils were not exposed to teachers who were known to be sexual predators.  And the suppression of a true picture of Knight's predatory proclivities was apt to extend to allow persons who, like Mr Case, are given some adverse information from other sources, to conclude that it is reasonable to discount that information.  Whether or not such persons were within South Australia or not is beside the point. 
  1. The absence of registration as a teacher in South Australia would have been a substantial gap in Knight's application for employment both inside and outside of South Australia. At the very least, such a lacuna in his curriculum vitae could have been expected to excite sceptical inquiry by those to whom Knight applied for employment as a teacher.
  1. For these reasons, I would not be disposed to disagree with the conclusion of the learned primary judge that the plaintiff has a sufficiently arguable case of negligence against the second, third and fourth defendants to satisfy s 31(2)(b) of the Act.

Fair trial, prejudice and miscarriage of discretion

  1. It is now necessary to consider whether the exercise of the discretion in the plaintiff's favour miscarried because of a failure on the part of her Honour to take into account any difficulty which the delay which has occurred may pose for the conduct of a fair trial.
  1. The first argument advanced by the second and third defendants is that the learned primary judge misdirected herself on the law governing the proper approach to the resolution of the issue as to the exercise of the discretion conferred by s 31(2) of the Act. It is said that her Honour imposed on the defendants the onus of showing that delay would not prejudice the fair trial of the action in a substantial way. These defendants focus upon the following observation by her Honour:[28]

"Whilst the onus is on the applicant to demonstrate that a fair trial can be had, the applicant submits that the respondents should point to identify specific matters of prejudice, and relies on the decision in Limpus v State of Queensland (… [2004] 2 Qd R 161, 169), where Jerrard JA held that, whilst there was an onus on an applicant to show that the justice of a particular case requires an extension of time, where that onus is unlikely to be satisfied because with the passage of time the respondent may not be able to fairly defend the proceedings, then there is:

'...an evidential onus on a potential defendant to identify the prejudice to it of which the defendant is aware and which makes a fair trial no longer possible or creates a significant chance of that result.'

  1. It is clear, I think, that her Honour did not err in the way suggested by the defendants. Even where the requirements of s 31(2) have been satisfied, the burden remains on the applicant for relief to show good reason for the favourable exercise of the discretion. An applicant who is unable to show that a fair trial can take place notwithstanding the delay which has occurred will not discharge that burden. Her Honour did not misunderstand the position in this regard. The point being made by the learned primary judge was simply that, on the evidence before her, she was satisfied that a fair trial could now be had notwithstanding the lapse of time which has occurred.
  1. The defendants argue that the learned primary judge erred in her conclusion that there was now no obstacle to a fair trial of the plaintiff's claims against them. I am persuaded that her Honour did err in this regard.
  1. In relation to the plaintiff's case against the first defendant, it is apparent from what has already been said that much turns on the terms of the conversation between Mr Thomson and Mr Case in which Mr Thomson cautioned Mr Case about employing Knight.  The learned primary judge noted that both Mr Case and Mr Thomson are available to give evidence and that each has provided a statement of his recollection.  But it is apparent that their recollections have been affected by the passage of time and that their statements were provided only very recently.  It is also apparent that they have differing views about what was said in this conversation in relation to the nature and extent of the misconduct which led to the termination of Knight's employment at BBC.  That difference is important in relation to the issue as to the liability of the first defendant. 
  1. As was noted by Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor,[29] it is of particular importance to the exercise of the discretion conferred by s 31(2) of the Act that a vital factual issue in the envisaged trial will turn upon a determination of the terms of a conversation which occurred long ago.  I am respectfully unable to accept that a dispute about a "fact" which the plaintiff himself asserts is a material fact of a decisive character is one which is not a "vital factual issue". 
  1. As to the plaintiff's case against the second and third defendants, as the learned primary judge noted, Mr Laubsch and Mr Mayfield have both died. There is, to say the least, a significant possibility that the inability of the second and third defendants to have recourse to these gentlemen would enure to the disadvantage of these defendants at the trial which the plaintiff envisages. In Brisbane South Regional Health Authority v Taylor,[30] McHugh J said:

"[t]he discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question.  Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

…

Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action."

  1. I am unable to accept that neither of these gentlemen could have shed light on the decision to withdraw the notice of dismissal and to allow Knight to resign. It is not beyond the realms of significant possibility that one or other of these gentlemen could have given evidence of reasons which might put that decision in a different light so far as the issue of negligence is concerned. It is not beyond the bounds of possibility that Knight offered assurances to Mr Laubsch or Mr Mayfield to the effect that, if allowed to resign, he would not seek further employment in child education. Of course, one cannot assume that this did occur or that there are other reasons why the conduct of the second and third defendants might not be regarded as negligent. The point is, however, that the lapse of time which has occurred in this case has been so great that there is what McHugh J described as a "significant chance" that the second and third defendants will not now be able "to fairly defend themselves". Mr Laubsch and Mr Mayfield, the officers upon whose conduct the second and third defendants' liability largely depends, are no longer available to defend the decisions in which they were involved. I am unable to accept that a trial in which these gentlemen are unable to defend the criticisms made of their performance of their duties on behalf of the second and third defendants can be described as fair.

Conclusion and orders

  1. In my respectful opinion, the exercise by the learned primary judge of the discretion to extend time under s 31(2) of the Act miscarried. Accordingly, the appeal must be allowed.
  1. I would order that, except for the orders made concerning the costs of the adjournment on 14 March 2008, the orders of the primary judge, insofar as they affect the first, second and third defendants, be set aside.
  1. The consequence of setting aside the orders extending the time for the plaintiff to bring his claims against the first, second and third defendants is that these defendants have a good defence to his claims against them. It also follows that the first defendant's claim against the second and third defendants must also fail. Accordingly, I would order further that:
  1. insofar as it affects the second and third defendants, the plaintiff's and the first defendant's applications pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) and s 18 of the Personal Injuries Proceedings Act 2002 (Qld) be dismissed;
  1. that the plaintiff's claim against the first, second and third defendants be dismissed; and
  1. the claim of the first defendant against the second and third defendants be dismissed.
  1. In accordance with the request of the parties, they are at liberty to make written submissions in relation to issues of costs in accordance with Practice Direction No 1 of 2005.
  1. FRASER JA:  I have had the advantage of reading the reasons for judgment of Keane JA and Chesterman JA.  In view of their Honours' analyses of the evidence and the issues I propose only to identify the matters which particularly weighed with me in concluding that the primary judge’s discretion miscarried. 
  1. There was no dispute that the plaintiff should not obtain the necessary extensions of the limitation periods which otherwise barred his claims unless he established that there could be a fair trial. Similarly, the onus lay upon the first defendant to demonstrate that there could be a fair trial of its third party claim against the second and third defendants, but it is not necessary to give separate consideration to that issue.
  1. Before the primary judge the defendants argued that the plaintiff had failed to establish that there could be a fair trial in light of the prejudice to which the defendants were exposed in defending the claims because of the lengthy passage of time after the events giving rise to the claims. The primary judge concluded that there could be a fair trial of the claims against all defendants despite that delay. In considering the defendants' challenges to that conclusion it must be borne in mind that the question whether there could be a fair trial involves a value judgment, and one which must be formed as an aspect of the broader question whether the statutory discretion under s 31 of the Limitation of Actions Act 1974 (Qld) should be exercised.  The question for this Court is not whether it would have formed the same view as the primary judge; the Court should review the primary judge's decision only if first satisfied that her Honour’s view that there could be a fair trial was not open on the evidence or that her Honour otherwise failed properly to exercise the statutory discretion.[31]
  1. The defendants’ contention that the primary judge's conclusion that there could be a fair trial was not open finds powerful support in the evidence, in my respectful opinion. I gratefully adopt and will not repeat the analyses of the evidence in the reasons given by Keane JA and Chesterman JA. In my view the evidence established that the plaintiff did not decide to bring his present claims, and thus he did not give the defendants notice of his intention to bring them, until between about 20 and 25 years after the acts and omissions he alleges against the defendants; the proposed trial of the plaintiff's claims would occur some 25 to 30 years after the events concerning liability to be examined in the trial; the trial judge's task in resolving the claim against the first defendant would include deciding what was said in a critically important conversation which occurred some 30 years before the trial, when the two parties to the conversation, whose memories had faded with time, gave materially conflicting accounts; and the trial judge's task in resolving the claim against the second and third defendants would include deciding what were the reasons for and reasonably foreseeable consequences of an important decision made some 30 years before the trial, when two people who participated in that decision had died and the memory of the only known surviving participant had faded.
  1. The primary judge's reasons for deciding that the plaintiff had nevertheless demonstrated a good case for the extension of the limitation period are set out in the following passages of her Honour’s reasons:[32] 

"[135]Whilst the onus is on the applicant to demonstrate that a fair trial can be had, the applicant submits that the respondents should point to identify specific matters of prejudice, and relies on the decision in Limpus v State of Queensland, where Jerrard JA held that, whilst there was an onus on an applicant to show that the justice of a particular case requires an extension of time, where that onus is unlikely to be satisfied because with the passage of time the respondent may not be able to fairly defend the proceedings, then there is:

'...an evidential onus on a potential defendant to identify the prejudice to it of which the defendant is aware and which makes a fair trial no longer possible or creates a significant chance of that result.'

[136]In this regard, Counsel for the second and third respondents pointed to the fact that some crucial and relevant personnel in the respective teacher registration boards cannot be found. Furthermore, '...because the boards are different and the registering authorities are different and because people have retired and long gone...they don’t have a clear recollection.' Counsel for the second and third respondents submit that '...a 30 year delay leads to the inevitable inference of prejudice because of dimmed recollections.' It is clear however that the files of the Queensland Board are in evidence and the weight to be given to such documents and the evidence of the witnesses is a matter for the trial judge having heard all of the evidence presented at the trial.

[137]The South Australian investigations identified two former State Government employees who were involved in the decision to rescind the dismissal of Knight in 1978 namely Colin Laubsch the Director of Personnel and John Mayfield the Director-General of Education who had also conducted the investigation into the allegations against Knight. 
Mr Laubsch died in 1991 and Mr Mayfield died in 2006.

[138]The dismissal in South Australia occurred 30 years ago and the registration in Queensland some 28 years ago and I accept that memories will obviously have dimmed, however, I consider that there is ample documentary evidence on file which sets out the Report of the investigation in full and the conclusions. The document dated 16 May 1978 is addressed to the Minister of Education and entitled 'Enquiry into allegations concerning teacher Gregory Knight' and records a numbers of factual findings against Knight in specific detail. That document stated that the Director of Educational Facilities had found that Knight was guilty of improper and disgraceful conduct and recommended to the Minister that he dismiss Knight from the teaching service. In any event there is clear evidence that the Minister dismissed Knight from the South Australian teaching service as a consequence of the investigation.

[139]Indeed it was Hopgood who then dismissed Knight and subsequently revoked that dismissal. He is available to give evidence. Furthermore, it is not as if Knight was just one of many hundreds of teachers in South Australia that Hopgood as Minister was responsible for but rather Knight was personally known to Hopgood and the circumstances would have had a particular resonance.

[140]Whilst Mr Hopgood is elderly he has stated that he does have '...a reasonable recollection of the basic sequence of events up to and including the provision of the reference.' As he played in the band with Knight it is clear he knew him personally and he says as much in his reference. I do not consider in the circumstances that the second, third, and fourth respondents would be prejudiced in their ability to meet the allegations against them even given this effluxion of time.

[141]Counsel for the second and third respondents also submitted that there is evidence of a failure by Mr Fry from the Queensland Board to recall and that '...the failure to be able to recall whether he had dealings with the file or what they were and the way in which he’s pieced together what might have been the practice' is of concern. Counsel made particular reference to his concern in relation to '...evidence purportedly to be given by way of reconstruction.' Counsel submitted that this factor was particularly prejudicial in this case and will prohibit a fair trial. Reconstruction is obviously a matter for the trial judge and I do not consider that the potential for prejudice in this case is such that it will not allow a fair trial.

[142]One of the major issues at trial relates to the conversation between Mr Case and Mr Thomson and what the precise content of that conversation was and whether a warning was given. Both Mr Case and Mr Thomson are alive and both remember the conversation although their memories of the conversation would appear to vary in relation to the precise content of the conversation. Importantly both have given statements about the conversation and both are available to give evidence.

[143]The applicant relies on the practices at the school in the 1980s and Mr Case can give this evidence as can the applicant. Similarly, they can both give evidence as to the conversation where the applicant is alleged he told Mr Case of the abuse.

[144]Counsel for the second and third respondents as well as the fourth respondent point to the danger of applying standards of liability which exist today to practices which occurred in the past and that there is a danger of approaching the matter with hindsight rather than prospectively. Given the recent Court of Appeal decision in Hegarty v Queensland Ambulance Service the law in that respect is clear and will obviously be the focus of Counsel’s submissions at trial.

[145]Counsel for the second and third respondents also points to the fact that this is a case involving psychiatric injuries and argues that damages claims for psychiatric injuries brought after a lapse of time are more likely to produce prejudice because of the notorious difficulty in defending and investigating such injuries and relies on the decision of Page v The Central Queensland University. An examination of the facts in that case, however, indicates that the circumstances there are very different to those in existence in the current case.

[146]In Batistatos v Roads & Traffic Authority (NSW) Kirby J referred to the decision of Priestley JA in Holt v Wynter as follows:

'One thing seems to be clear; that is that the term [fair trial] is a relative one and must, in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case. Further, for a trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable. Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court. Time and chance will have their effect in evidence in any case, but it is not usually suggested that that effect necessarily prevents a fair trial.'

[147]Accordingly, I consider that the circumstances in this case are such that there should be no prejudice to the second, third, and fourth respondents in obtaining a fair trial and that the discretion should be exercised in favour of an extension. I consider that despite the fact some 30 years have gone by the claim can still be fairly litigated given the number of witnesses still available and the extent of the documentary evidence available not only in relation to the events in South Australia in 1977 but subsequent events."

  1. In paragraph [136] of the reasons, in the first of the passages I have emphasised, the primary judge referred to documents held by the Queensland College of Teachers in files formerly held by a predecessor body, the Queensland Board of Teacher Education. Those documents concerned the registration of Knight as a teacher in Queensland. The plaintiff would rely upon these documents as justifying an inference that the Queensland Board of Teacher Education registered Knight in reliance upon Knight's registration as a teacher in South Australia and references (which were on the files), thereby allowing his employment by the first defendant and Knight's subsequent sexual abuse of the plaintiff. So far as one can tell from the documents themselves the files are complete, although it is not possible to be confident about that. The present point is that the primary judge considered that the existence of these documents, which would be relied upon to establish an inference favourable to the plaintiff’s case, supported the view that a fair trial could be had, but her Honour did not advert to the potentially adverse effect of the passage of time upon the second and third defendants' ability to obtain direct evidence from former employees of the Board which might have rebutted the inference or otherwise shed light on the case.
  1. The emphasised parts of paragraph [138] of the reasons indicate that the primary judge regarded as favourable to the exercise of the discretion the existence of documents that supported an inference that Knight was dismissed from the State teaching service in South Australia after an inquiry in which he was found guilty of improper and disgraceful conduct. However, what is directly in issue in the claim against the second and third defendants is the subsequent revocation of that decision referred to in paragraphs [139] – [140]. The assigned reason for that revocation was the plaintiff's resignation from the State teaching service, but there is no record which makes it plain whether or not other considerations were also taken into account. I interpolate here that we were taken through the relevant South Australian legislation, which makes it clear that the revocation of the dismissal directly affected only the employment relationship between Knight and the State: it had no bearing upon the power of the South Australian authorities to bring proceedings to cancel Knight's registration as a teacher. Whether or not such action was contemplated when Knight's dismissal was revoked, and indeed whether the relevant authorities were told of the result of the inquiry into Knight's conduct, was not revealed by the evidence.
  1. The relevant point here is that although in paragraph [137] the primary judge adverted to the intervening death of Mr Laubsch and Mr Mayfield, who had been involved in the decision to revoke the dismissal, her Honour did not advert to the prospect that those men might have been able to give evidence which rebutted the inference claimed by the plaintiff that the revocation of Knight's resignation was informed only by his resignation.
  1. In relation to the claim against the first defendant, there is no challenge to the primary judge’s conclusion in paragraph [142] that a major issue for the trial relates to the conversation between Mr Case and Mr Thomson, what the precise content of that conversation was, and whether Mr Thomson warned Mr Case (against employing Knight). The emphasised parts of paragraphs [142] and [143] of the reasons refer to the survival of witnesses who remain capable of giving evidence, but again there is no reference to the significance for a fair trial of the evidence that might have been lost by the dimming of memories over the passage of time. The statements mentioned by the primary judge were taken more than 20 years after the events they purported to recount. What they reveal is a material dispute about the critical question whether the alleged warning was conveyed to Mr Case and, as is to be expected, a substantial dimming of the memories of both men.
  1. There is no question but that potentially important evidence has been lost during the long period of time that has elapsed since the critical events. The critical question for the primary judge was whether a fair trial was likely to be thwarted by the prejudice to which the defendants were exposed in their ability to defend themselves as a result of the loss of that evidence.[33]  For the reasons I have given I have concluded that there is substance in the defendants' arguments that the trial judge was distracted from that critical question by focussing instead upon the ability of a trial judge to make an apparently fair decision upon the evidence which had survived the inevitably destructive effect of the passing of the decades.  As McHugh J observed in Brisbane Regional South Health Authority v Taylor,[34] "a verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all of the evidence concerning the matter, an opposite result may have ensued."
  1. It was the adoption of what I have found to be a wrong approach to the assessment of the evidence which led the primary judge to make a decision which, I respectfully conclude, was not open on the evidence. Accordingly, the discretion falls to be exercised afresh. It will be apparent from what I have written that I consider that the proper exercise of the discretion inevitably requires that the applications for an extension of the limitation period be refused.
  1. Subject to those comments, which I consider are consistent with the reasons given by Keane JA and Chesterman JA, I agree with their Honours’ reasons and with the orders proposed by Keane JA.
  1. CHESTERMAN JA:  I have read the draft reasons for judgment prepared by Keane JA and agree with the reasons and the orders proposed by his Honour.  I wish, however, to make some short observations of my own.
  1. The conduct of Knight which gives rise to the plaintiff's claims against the defendants occurred in the years 1981 to 1983, as long as 28 years ago. If allowed to proceed the action will not be ready for trial for at least another year, and probably more.
  1. The primary judge extended the limitation period because her Honour found that two material facts of a decisive character were not within the plaintiff’s knowledge earlier than a year before he commenced his action. They were:

(a)That the plaintiff was not aware of the impact that Knight’s sexual abuse had upon him until he read newspaper articles in 2001 and 2002;

(b)That it was only in March 2006 that he knew that the headmaster of the school he attended and which employed Knight had been warned about him by the headmaster of another school where Knight had taught.

  1. The finding of the first fact is rightly described as sympathetic. There is, I think, much force in the appellants' arguments that it was wrongly made but for the reasons given by Keane JA it should not be disturbed. The learned primary judge heard and saw the plaintiff give evidence. The reluctance required of a Court of Appeal when asked to interfere with findings of fact in which the assessment of witnesses has formed part means that the finding should stand.
  1. There is no basis for attacking the second material fact found by her Honour but it demonstrates the importance of the conversation between Mr Thomson and Mr Case to the plaintiff’s action.  Success against the first defendant depends, to all intents and purposes, upon proving that Mr Case was warned about Knight’s sexual proclivity, or unnatural sexual interest in young male pupils before employing him.
  1. Knight was dismissed from Brisbane Boys College by Mr Thomson in 1980, 29 years ago.  He first made a statement about the conversation he had with Mr Case in December 2002, 22 years after the dismissal.  Mr Thomson recounts in his statement that his memory of the events was "not as clear as it once was".  But about the crucial question, what was said in his conversation with Mr Case, Mr Thomson said only that he "made it clear ... that Knight had been discharged ... on the grounds of irregular conduct in his attitude towards the boys."  The reasons "were probably given in more general terms than in particular detail."
  1. In a subsequent statement made in April 2006 Mr Thomson says that he "explained ... the circumstances of Knight leaving Brisbane Boys College ... in general terms". He could not recall "the exact conversation ... with Case but ... made it very clear that the boys at Brisbane Boys College had lost their trust in Mr Knight ... as a consequence of his behaviour".
  1. Mr Case has a different recollection of the conversation. He, too, accepts that his memory is not reliable because of the length of time which has passed since the events. He appears to have first been asked to recall what was said about 22 years after he had spoken to Mr Thomson. His memory is that he was told that Knight had provided condoms to boarders and that he should be "cautious" in appointing him. Mr Case asserts that he was not told anything which would constitute grounds for not appointing him to the position applied for. He denies that he was told that Knight had engaged in sexually inappropriate conduct with pupils at Brisbane Boys College.
  1. One must presume that the statements taken from Mr Thomson in 2002 and 2006 contain his best recollection of what passed between him and Mr Case in their telephone conversation. It is not explicit and is understandably qualified by Mr Thomson's admitted uncertainty of recollection.  Mr Case likewise has no clear or complete recollection of what was said, but his recollection of the import of the conversation differs markedly from Mr Thomson's.
  1. The conversation is critical to the plaintiff's case which is untenable unless he prove that the first defendant, by Mr Case, knew of the danger to its pupils that Knight constituted when he was employed. It is not possible after the passage of close to three decades for any tribunal of fact to determine what was said. The High Court in Bastistatos v Roads and Traffic Authority (NSW) (2006) 80 ALJR 1100 dismissed an appeal from an order of the (NSW) Court of Appeal staying an action, which was brought within time by a disabled plaintiff, on the basis that the lapse of time between the accruing of the cause of action and any trial made the proceedings an abuse of process.  The time in question was about 30 years.  In the Court of Appeal Bryson JA had said (quoted 80 ALJR 1114):

"... the ... clear position is that no useful evidence is available upon which to conduct a trial into the question whether the plaintiff’s injuries were caused by negligence of the defendants, and no further search or inquiry is in any way likely to locate any such evidence;  so that a trial of the proceedings could not rise above a debate about the effect of scraps of information ..."

and

"No more than a formal enactment of the process of hearing and determining the plaintiff’s claim could take place; it cannot be expected that the process would be just."

  1. In their joint judgment Gleeson CJ, Gummow, Hayne and Crennan JJ said (1116):

"Rather, as in the circumstances of the present case, attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time.  The Court of Appeal held that this was so serious that a fair trial was not possible.  The result was that to permit the plaintiff’s case to proceed would clearly inflict unnecessary injustice upon the defendants."

  1. These remarks are, in my opinion, entirely apposite to the present case. The plaintiff’s case turns upon an unrecorded conversation between two men, now quite old, almost 30 years ago. No known forensic technique can establish what words were exchanged on the telephone in December 1980. Any attempt to do so would be futile. Any belief that the truth had been discovered would be deluded.
  1. I respectfully agree with the description of such a trial expressed by Keane JA in Page v The Central Queensland University [2006] QCA 478.  His Honour said:

"The appellant’s case puts in issue the process of scrutiny and evaluation of his application by officers of the respondent.  This process occurred 15 years ago.  The appellant’s case will inevitably involve, to some considerable extent, oral evidence of discussions involving the respondent’s officers and other persons, including the appellant.  The learned primary judge was entitled to conclude, by reason of these circumstances alone, that the prospects of a fair trial of the appellant’s case lay in the realm of pious hope rather than reasonable expectation.  While it is true to say that the court will be reluctant to deny a litigant with an arguable case the opportunity for a fair trial ... it must be emphasised that the opportunity in question is the opportunity for a fair trial.  The court is not in the business of preserving the opportunity to conduct solemn farces in which parties and witnesses are invited to attempt to reconstruct recollections which have long since disappeared.  Such a trial would not be fair for either party."

  1. There is another point. The process of selecting Knight for the position of music teacher at St Paul's School involved the senior master, one Kenneth Sutton. He is dead though the date of his death does not appear. Given that he was involved in Mr Knight's appointment it is within the realm of distinct possibility that Mr Case discussed with him what Mr Thomson had said about Knight and whether, being cautious as they were advised to be, it was nevertheless appropriate to engage him. The late Mr Sutton, therefore, appears potentially to have been a witness who could testify to the first defendant’s knowledge of Knight's background at the relevant time. His evidence is lost and neither plaintiff nor first defendant can make use of it.
  1. As to the prejudice to the second and third defendants, it is enough to record that Mr Laubsch the Director of Personnel in the South Australian Department of Education, died in 1991 before proceedings were commenced and Mr Mayfield, the relevant Director General of Education, died in 2006 before the institution of proceedings against the second and third defendants.  There was therefore no opportunity to take a statement from them in their lifetimes.  The second and third defendants are deprived of any opportunity of explaining the conduct on which the plaintiff relies to allege negligence against them.
  1. The plaintiff bore "the positive burden of demonstrating that the justice of the case" required the extension of time granted by the learned primary judge. The quotation is, of course, from the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554.  Given the clear evidence of prejudice which each of the first, second and third defendants would experience in now attempting to answer the plaintiff’s case it must be concluded that he has not demonstrated that justice required the extension.
  1. I agree with the orders proposed by Keane JA.

Footnotes

[1] HWC v The Corporation of the Synod of the Diocese of Brisbane & Ors [2008] QSC 212 at [54] (citation footnoted in original).

[2] [2008] QSC 212 at [66].

[3] [2008] QSC 212 at [67].

[4] [2008] QSC 212 at [68].

[5] [2008] QSC 212 at [69] – [73].

[6] [2008] QSC 212 at [74] (citation footnoted in original).

[7] [2008] QSC 212 at [76].

[8] [2008] QSC 212 at [78] – [79].

[9] [2008] QSC 212 at [80] – [82].

[10] [2008] QSC 212 at [83] – [85] (citations footnoted in original).

[11] [2008] QSC 212 at [89].

[12] [2008] QSC 212 at [92] – [93].

[13] [2008] QSC 212 at [90] – [91].

[14] [2008] QSC 212 at [104].

[15] [2008] QSC 212 at [106] – [109].

[16] [2008] QSC 212 at [129] – [131] (citations footnoted in original).

[17] [2008] QSC 212 at [94] – [96].

[18] [2008] QSC 212 at [132].

[19] [2008] QSC 212 at [136] – [147].

[20] [2008] QSC 212 at [136] – [143].

[21] [1998] QCA 298 at [18].

[22] [1993] QCA 210.

[23] [1998] QCA 298 at [20] (citations footnoted in original).

[24] [2008] 2 Qd R 219 at [40].

[25] Opacic v Patane [1997] 1 Qd R 84 at 87; State of Queensland v Stephenson (2006) 226 CLR 197 at 203.

[26] (2003) 212 CLR 511.

[27] Cf Stuart v Kirkland-Veenstra (2009) 254 ALR 432.

[28] [2008] QSC 212 at [135] (citation footnoted in original).

[29] (1996) 186 CLR 541 at 546 – 548.

[30] (1996) 186 CLR 541 at 553 – 555.

[31] Brisbane Regional South Health Authority v Taylor (1996) 186 CLR 541 at 550 per Toohey and Gummow JJ and at 555-556 per McHugh J (with whose reasons Dawson J agreed).

[32] H W C v The Corporation of the Synod of the Diocese of Brisbane & Ors [2008] QSC 212 at [135]-[147]. I have added the emphasis.

[33] Brisbane Regional South Health Authority v Taylor (1996) 186 CLR 541 at 548 per Toohey and Gummow JJ and at 555-556 per McHugh J (with whose reasons Dawson J agreed).

[34] Brisbane Regional South Health Authority v Taylor (1996) 186 CLR 541 at 551 per McHugh J.

 

Close

Editorial Notes

  • Published Case Name:

    HWC v The Corporation of the Synod of the Diocese of Brisbane

  • Shortened Case Name:

    HWC v The Corporation of the Synod of the Diocese of Brisbane

  • MNC:

    [2009] QCA 168

  • Court:

    QCA

  • Judge(s):

    Keane JA, Fraser JA, Chesterman JA

  • Date:

    16 Jun 2009

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2008] QSC 212 (2008) 220 FLR 9209 Sep 2008Application for extension of limitation period; material fact of a decisive character with respect to his claim against the second, third, and fourth respondents were not within the applicant’s means of knowledge; adequate explanation for delay; no prejudice in obtaining fair trial: period of limitation extended: Lyons J
Appeal Determined (QCA)[2009] QCA 16816 Jun 2009Material fact of decisive nature not known to plaintiff; plaintiff has a sufficiently arguable case of negligence against the second, third and fourth defendants to satisfy s 31(2)(b) of the Act; exercise by the learned primary judge of the discretion to extend time under s 31(2) of Limitation of Actions Act 1974 miscarried because of failure to take into account difficulty delay may pose for fair trial; appeal allowed: Keane, Fraser and Chesterman JJA
Appeal Determined (QCA)[2009] QCA 20217 Jul 2009Application for indemnity certificate refused: Keane, Fraser and Chesterman JJA
Special Leave Refused (HCA)[2010] HCATrans 4712 Mar 2010Court of Appeal entitled to come to view it did as to possibility of fair trial; application for special leave refused: French CJ and Crennan J

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
1 citation
Jump To
Cite 1 - (2006) 226 CLR 256
Batistatos v Roads and Traffic Authority of New South Wales (2006) 80 ALJR 1100
2 citations
Jump To
Cite 1 - (2006) 80 ALJR 1100
Cite 2 - (2006) 80 ALJR 1100
Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27
1 citation
Jump To
Cite 1 - [2006] HCA 27
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
7 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Cite 4 - (1996) 186 CLR 541
Cite 5 - (1996) 186 CLR 541
Cite 6 - (1996) 186 CLR 541
Cite 7 - (1996) 186 CLR 541
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
1 citation
Jump To
Cite 1 - [1996] HCA 25
Carmo v Ford Excavations Pty Ltd (1984) 154 C.L.R 234
1 citation
Jump To
Cite 1 - (1984) 154 C.L.R 234
Castillon v P&O Ports Ltd[2008] 2 Qd R 219; [2007] QCA 364
3 citations
Jump To
Cite 1 - [2007] QCA 364
Cite 2 - [2008] 2 Qd R 219
Cite 3 - [2008] 2 Qd R 219
Cf Zuvela v Cosinarnan Concrete Pty Ltd (1996) 71 ALJR 29
1 citation
Jump To
Cite 1 - (1996) 71 ALJR 29
Healy v Femdale Pty Ltd [1993] QCA 210
2 citations
Jump To
Cite 1 - [1993] QCA 210
Cite 2 - [1993] QCA 210
HWC v The Corporation of the Synod of the Diocese of Brisbane [2008] QSC 212
23 citations
Jump To
Cite 1 - [2008] QSC 212
Cite 2 - [2008] QSC 212
Cite 3 - [2008] QSC 212
Cite 4 - [2008] QSC 212
Cite 5 - [2008] QSC 212
Cite 6 - [2008] QSC 212
Cite 7 - [2008] QSC 212
Cite 8 - [2008] QSC 212
Cite 9 - [2008] QSC 212
Cite 10 - [2008] QSC 212
Cite 11 - [2008] QSC 212
Cite 12 - [2008] QSC 212
Cite 13 - [2008] QSC 212
Cite 14 - [2008] QSC 212
Cite 15 - [2008] QSC 212
Cite 16 - [2008] QSC 212
Cite 17 - [2008] QSC 212
Cite 18 - [2008] QSC 212
Cite 19 - [2008] QSC 212
Cite 20 - [2008] QSC 212
Cite 21 - [2008] QSC 212
Cite 22 - [2008] QSC 212
Cite 23 - [2008] QSC 212
HWC v The Corporation of the Synod of the Diocese of Brisbane & Ors (2008) 220 FLR 92
1 citation
Jump To
Cite 1 - (2008) 220 FLR 92
Limpus v State of Queensland[2004] 2 Qd R 161; [2003] QCA 563
1 citation
Jump To
Cite 1 - [2004] 2 Qd R 161
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
1 citation
Jump To
Cite 1 - [1988] 2 Qd R 325
New South Wales v Lepore [2003] HCA 4
1 citation
Jump To
Cite 1 - [2003] HCA 4
Opacic v Patane [1997] 1 Qd R 84
3 citations
Jump To
Cite 1 - [1997] 1 Qd R 84
Cite 2 - [1997] 1 Qd R 84
Cite 3 - [1997] 1 Qd R 84
Page v Central Queensland University [2006] QCA 478
2 citations
Jump To
Cite 1 - [2006] QCA 478
Cite 2 - [2006] QCA 478
Patane v Opacic [1996] QCA 95
1 citation
Jump To
Cite 1 - [1996] QCA 95
Pizer v Ansett Australia Ltd [1998] QCA 298
4 citations
Jump To
Cite 1 - [1998] QCA 298
Cite 2 - [1998] QCA 298
Cite 3 - [1998] QCA 298
Cite 4 - [1998] QCA 298
State of New South Wales v Lepore; Samin v State of Queensland; Rich v State of Queensland (2003) 212 CLR 511
2 citations
Jump To
Cite 1 - (2003) 212 CLR 511
Cite 2 - (2003) 212 CLR 511
State of Queensland v Stephenson (2006) 226 CLR 197
3 citations
Jump To
Cite 1 - (2006) 226 CLR 197
Cite 2 - (2006) 226 CLR 197
Cite 3 - (2006) 226 CLR 197
State of Queensland v Stephenson & Anor (2006) HCA 20
1 citation
Jump To
Cite 1 - (2006) HCA 20
Stuart v Kirkland-Veenstra (2009) 254 ALR 432
2 citations
Jump To
Cite 1 - (2009) 254 ALR 432
Cite 2 - (2009) 254 ALR 432
Stuart v Kirkland-Veenstra [2009] HCA 15
1 citation
Jump To
Cite 1 - [2009] HCA 15
Sutherland Shire Council v Heyman (1985) 157 CLR 424
1 citation
Jump To
Cite 1 - (1985) 157 CLR 424
Taggart v The Workers' Compensation Board of Queensland [1983] Qd R 19
1 citation
Jump To
Cite 1 - [1983] Qd R 19
Tania Kirkland-Veenstra v David Stuart [2008] VSCA 32
1 citation
Jump To
Cite 1 - [2008] VSCA 32
University of Queensland v Dick[2000] 2 Qd R 476; [1999] QCA 474
1 citation
Jump To
Cite 1 - [2000] 2 Qd R 476

Cases Citing

Case NameFull CitationFrequency
Birch v AAI Limited [2017] QDC 662 citations
Buchanan-Davies v Broadbent [2010] QSC 4262 citations
Burgess v Sanbray Pty Ltd [2017] QDC 1322 citations
Byfield v Hertess [2011] QDC 2562 citations
Caroline Shaw v Broadbent [2010] QSC 4332 citations
Drew v Mackay Sugar Ltd [2014] QDC 2162 citations
Feher v Commonwealth [2016] QDC 2752 citations
Gail Shaw v Broadbent [2010] QSC 4252 citations
Hargans v Kemenes [2011] QCA 251 2 citations
Heathcote v Oaky Creek Coal Pty Ltd [2021] QSC 1843 citations
Hodgson v Broadbent [2010] QSC 4272 citations
Hogan v Allen Taylor & Company Ltd [2015] QDC 858 citations
Hornburg v Greenlife Solutions Pty Ltd [2017] QDC 322 citations
Lang v McArthur [2019] QSC 1192 citations
Livett v Hertess [2011] QDC 2572 citations
Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital) [2021] QSC 240 2 citations
Marsden v Broadbent [2010] QSC 4312 citations
Masters v Daoud [2020] QDC 383 citations
MCA v State of Queensland [2011] QSC 2983 citations
McKeown v Hertess [2011] QDC 2552 citations
McWhae v Broadbent [2010] QSC 4302 citations
Milling v Fraser Coast Regional Council [2015] QDC 2912 citations
Morrison v Broadbent [2010] QSC 4292 citations
O'Donnell v Broadbent [2010] QSC 4282 citations
Oldfield v Verrocchi [2017] QSC 842 citations
Perkins v Cleveland Glass & Aluminium Pty Ltd [2011] QDC 3022 citations
Peterson v Broadbent [2010] QSC 4322 citations
Pickering v McArthur [2010] QCA 3411 citation
Ripper v Suncorp Metway Insurance Limited [2012] QDC 1072 citations
Rodgers v Chinsee [2024] QDC 552 citations
Scott v State of Queensland [2014] QSC 3062 citations
Sharp v Hertess [2011] QDC 2582 citations
Smith v Reader [2020] QSC 484 citations
Vivian v Gameover Pty Ltd [2024] QSC 263 2 citations
Walker v Tucker [2019] QSC 141 2 citations
Wood v Safe Places Community Services Ltd [2024] QDC 922 citations
Wyatt v AAI Limited [2021] QDC 1882 citations
Zimmerle v WorkCover Queensland [2022] QDC 1432 citations
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