BEK v BEL[2024] QCA 154

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA: I agree with the reasons and orders proposed by Brown J.
2. [2]
   DALTON JA: Mistakenly the applicant applied for leave to appeal. It was conceded on the hearing of the appeal that leave was unnecessary, and the hearing proceeded on the basis that this Court should determine the appeal proposed in the application. Therefore I will call the applicant the appellant in these reasons for judgment.
3. [3]
   The appellant and respondent met in 1996 and were married in 1999. The appellant was violent towards his wife. In 2001 she was hospitalised to undergo surgery for a condition that she had lived with since birth. On three different occasions, the appellant raped her in a public toilet at the hospital during that hospitalisation. The respondent made a preliminary complaint in 2016. In 2017 she went to the police. The appellant pleaded guilty to three counts of rape on indictment in 2021.
4. [4]
   In 2022 the respondent signed a notice of claim under the Personal Injuries Proceedings Act 2002 (Qld). She was granted leave pursuant to s 43 of that Act to commence Court proceedings, which were stayed pending compliance with Chapter 2 Part 1 of the Act.  In September 2022 the respondent filed a claim and statement of claim in the District Court, and in March 2023 brought an application to extend time for making that claim pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld).  The primary judge granted that application.  This appeal is brought against that decision.
5. [5]
   Section 31(2) of the limitations statute provides as follows:

1. “(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 –

1. (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
2. (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.”

1. [6]
   The respondent argued that material facts of a decisive character relating to her right of action were not within her means of knowledge until after the three year limitation period had expired.  It is necessary to have regard to the definitions in s 30 of the limitations statute:

1. “30
   Interpretation

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

1. (a)
   the material facts relating to a right of action include the following—

1. (i)
   the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
2. (ii)
   the identity of the person against whom the right of action lies;
3. (iii)
   the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
4. (iv)
   the nature and extent of the personal injury so caused;
5. (v)
   the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

1. (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—

1. (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
2. (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;

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

1. (i)
   the person does not know the fact at that time; and
2. (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.

1. (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.”

7. [7]
   The statute creates a legal framework for analysis, but unfortunately the parties below did not present the case within that framework, nor did the judge below analyse the application within the statutory framework.  That difficulty continued in this appeal.  In his outline of argument the appellant conceded that his guilty pleas in 2021 were material facts within the meaning of s 30(1)(a) of the limitations statute.  Argument in the court below; the judgment in the court below, and the appellant’s argument in this Court prior to the withdrawal of the concession just mentioned, was directed to whether or not the appellant’s guilty pleas were of a decisive character within the meaning of s 30(1)(b).  The difficulty is that this question only arose if the guilty pleas are material facts as defined, and in my view they are not.
8. [8]
   At the beginning of the hearing on appeal, these views were drawn to the attention of counsel for the appellant.  She sought leave to withdraw the concession.  Counsel for the respondent candidly admitted he was not taken by surprise by the point.  He told the Court that he had undertaken considerable research as to it.  It had no doubt been apparent to him because he was experienced in personal injuries litigation.  He told the Court quite candidly on the hearing of the appeal that having “scoured” the case law, he had found no authority which dealt with the point he was driven to rely upon if the concession made by the appellant was withdrawn.  Withdrawing the concession raised a point which was solely one of law.  In these circumstances this Court allowed the concession to be withdrawn; heard argument on the re-framed appeal, and allowed both parties leave to file further written submissions after the hearing, which they did.
9. [9]
   The guilty pleas could not possibly be within the statutory definitions at (i)–(v) of s 30(1)(a).  From the time of the rapes, or shortly thereafter, the respondent knew all the material facts listed in those subparagraphs.  Almost immediately after the rapes the respondent knew all the material facts establishing the elements of a cause of action against her husband, and could have sued him.  She put no material before the Court asserting to the contrary.  There may have been an element of uncertainty in calculating damages as to the long-term psychological effects upon her, but that is hardly unique in a personal injuries claim.

10. [10]
    It is necessary to re-state some basic principles about the operation of the extension of time provisions in s 31(2):

1. (a)
   The point of s 31(2) is to “grant an indulgence to a person who claims to have a right of action arising from the combination of [the ingredients listed at s 30(1)(a)], providing that he establishes that some fact remained outside his ‘knowledge’ in the defined sense, and that fact was ‘material’ and ‘decisive’ within the defined meanings of those words”.^[1]
2. (b)
   The judicial approach to s 31(2) is one which was first adopted in the English cases, namely “to look for an ingredient-relationship between the missing fact and the cause of action.”^[2]
3. (c)
   “The issuing of a writ presupposes knowledge, or at least belief, by the plaintiff or his legal advisers that he can establish the cause of action alleged in his writ by proving the facts that are then within his knowledge.  The antithesis of this proposition becomes the basic assumption of the scheme, ie, that he has not issued a writ because he lacked knowledge of some material fact, on proof of which his cause depended, either entirely or for a worthwhile result.  The scheme is designed to relieve such a plaintiff from the consequence of a failure to issue a writ within time which is shown to be due to ignorance of this kind.” (my underlining).^[3]

11. [11]
    Section 30(1)(a) contains an inclusive rather than exclusive definition.  So much has been noted in the cases.  In the Queensland cases, and the English cases before that, it has been noted that subparagraphs (i), (iii), (iv), and (v) of s 30(1)(a) contain a confused mix of the elements of a cause of action for personal injuries.^[4] Further, the case law has recognised that:

“… it is clear enough that the compound phrase ‘material facts relating to a right of action’ is capable of embracing factors beyond those which comprise the bare and essential ingredients of a given ‘cause of action’, … [that] would be consonant with, for example, the inclusion of the factors mentioned in paragraph (a) subparagraphs (iv) and (v) of s 30, which introduce into the material facts the notions of the degree and extent of injuries and of apportionment of their causation, and the elements of the plaintiff’s knowledge, all of which may not strictly be necessary to constitute a cause of action.”^[5]

11. [12]
    The plaintiff in Wood v Glaxo Australia Pty Ltd^[6] underwent a myelogram in 1972, which involved her being injected with iophendylate.  She issued a writ in 1990 against the supplier of iophendylate, claiming that substance caused her to develop adhesive arachnoiditis.  The plaintiff had instructed solicitors well before that.  She had always believed that the myelogram caused her harm, but she had no evidence to allow her to plead a case.  It was not until 1990 that she received an expert report establishing “the connection between the substance iophendylate and her condition” – p 436, and that at the time of her myelogram the state of knowledge as to the use of iophendylate was such that “its manufacture and distribution for such use was negligent” – p 440.
12. [13]
    To succeed in an action against the supplier of iophendylate, the plaintiff in Wood v Glaxo needed to prove that iophendylate caused her illness, and that the supplier of the substance knew, or ought to have known, that it would.  It is apparent from the outline of facts in that case that the state of scientific knowledge about iophendylate was developing, and the supplier’s state of knowledge at the time of the supply was not known to the plaintiff.  She had instructed solicitors, but they could not issue a writ before 1990 because until then they (and therefore the applicant) did not have enough evidence to issue a writ: they did not have any evidence, “that [the supplier] knew or ought to have known, at the time this myelogram was performed, that an injection of [iophendylate] into the subarachnoid space could cause adhesive arachnoiditis and that it therefore should not have distributed and sold it ...”^[7] Without that evidence they were not able to plead material facts establishing a right of action, for they were not able to plead a case on breach of duty or causation. The expert report obtained in 1990 provided the evidence through which the plaintiff could prove these parts of her cause of action. In terms of the legislation, obtaining this evidence meant that for the first time the plaintiff knew those facts, rather than just having a belief which was insufficient to support a proceeding. Because of the technical scientific basis for the cause of action asserted in that case, the plaintiff was not able to know the ultimate facts in issue until she had expert opinion. The present case contrasts: the respondent knew every fact necessary to plead a cause of action soon after the rapes occurred.
13. [14]
    In Wood v Glaxo, Davies JA considered this point, namely, that because of the scientific nature of the case which the plaintiff there wished to make, the ultimate facts in issue depended on expert opinion.  Nonetheless, he considered that, in applying the legislation, “Means of knowledge of that fact must be distinguished from means of knowledge of evidence of that fact” and concluded that, “…  it is the fact of the existence of the causal relationship rather than evidence of that fact to which s 31(2)(a) refers” – p 440.  He relied upon the words of s 30(1)(a)(iii), (iv) and (v) and New South Wales authority in coming to that conclusion.
14. [15]
    In Pikrt v Hagemeyer Brands Australia Pty Ltd^[8]a similar point arose.  The plaintiff hurt his back in 1995 and suffered increasing problems with it thereafter.  However, it was not until 2004 that his solicitors obtained a report from an orthopaedic surgeon which gave the opinion that the problems the plaintiff had with his back were referable to the 1995 accident.  It was expressly argued in that case that the report of the surgeon was the material fact for the purpose of s 30(1)(a)(ii).  McMurdo J held that to be so, and in a very short judgment, Holmes J agreed with him.  Jerrard JA dissented on this point.  The case, like Wood v Glaxo, raised the distinction between what a would-be plaintiff believed, and what they knew, and therefore could plead, in terms of causation of injury.  In both Wood v Glaxo and Pikrt, the would-be plaintiffs could not have succeeded in a proceeding where they simply asserted the occurrence of an event which they believed to have caused them harm, and the occurrence of harm.  For them to know the fact that the event had caused them harm in the sense relevant to s 30(1)(a)(iii), they needed scientific or medical evidence.
15. [16]
    In my view, Davies JA and Jerrard JA were correct in the way they analysed the relationship between the ultimate facts spoken of in s 30(1)(a) and evidence.  Nonetheless, whether that view, or the view expressed by McMurdo J in Pikrt is correct, the dicta about inclusive definitions and evidence being capable of being regarded as a material fact must be recognised as having been made in the context of cases where, without the expert evidence, the would-be plaintiff had insufficient knowledge of ultimate facts to constitute or to plead a cause of action.  In contradistinction here, the respondent had knowledge of all the material facts constituting her cause of action well within time.
16. [17]
    AB v State of Queensland^[9] is another case where the would-be plaintiff believed that there had been a breach of duty owed to her, but had no evidence which would allow her to plead that; in terms of the section, she did not have knowledge of facts amounting to a breach of duty.  It was held that when she received documents containing evidence of breach, she came into possession of a material fact of a decisive character.  The relevant part of the judgment of McMurdo JA is as follows:

1. “[42]
   It may be accepted that the appellant’s state of mind in this respect was a belief, rather than a suspicion. In George v Rockett, it was said that:

‘Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.’

However there was no foundation in the evidence for a finding that she knew of the relevant fact, namely, the respondents’ awareness of XY’s history when he was placed in her household.

…

20. “[47]
    The further question, under s 30(1)(c), is whether this was a fact which the appellant could have found out, by taking ‘all reasonable steps to find out the fact before that time’. On the judge’s reasoning, before ‘that time’ the appellant had sufficient information to enable her to plead her causes of action, and that had that been done ‘with skill’, admissions would have been forthcoming that the respondents knew of the allegations of sexual abuse. In my respectful opinion, however, that reasoning involves the employment of hindsight. The two reports having emerged, the likelihood of the appellant obtaining those admissions would appear to be high. But it was a different thing looking at the circumstances before March 2020. Had she then pleaded her case, she would have been required to plead any fact from which the alleged knowledge of the respondents was to be inferred. In the circumstances prior to 2020, that would have been at the least a formidable problem for the pleader. The assumption that admissions would have been forthcoming should not have been made.”

18. [18]
    The judgment in Greenhalgh v Bacas Training Ltd^[10] takes this matter no further.
19. [19]
    None of these cases is authority for the idea that once an applicant for extension of time knows all the facts material to their cause of action, they are justified in waiting until they obtain evidence which makes proof of those facts easier, or less risky, in the litigation.  As the respondent’s counsel conceded at the hearing of this appeal, there is no such case.  While the 2021 pleas of guilty were good evidence that the rapes had occurred, and made the likelihood of the respondent’s success in litigation more certain, they were simply better evidence of material facts which the respondent already knew.
20. [20]
    The orders this Court should make are that: (1) the applicant have leave to file the notice of appeal, which is exhibit AMP2 to the affidavit of Andrew Peel filed herein on 25 October 2023; (2) the appeal be allowed; (3) the order of Lynham DCJ made 24 April 2023 be set aside and in substitution it be ordered that the application filed 29 March 2023 to extend time be dismissed.
21. [21]
    BROWN J:  In 2023, the respondent made an application for an extension of the period of limitation in relation to an action for battery, arising out of her then husband having raped her in 2001.  The learned trial judge, Judge Lynham DCJ, determined that a plea of guilty to three counts of rape by the appellant (the respondent to the application in the court below and appellant in this appeal) constituted a material fact of a decisive character and that, pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (LAA), the period of limitation with respect to the respondent ’s claim in battery against the appellant  for damages for personal injuries sustained by the respondent (the applicant in the court below and respondent to this appeal) be extended to 6 September 2022.
22. [22]
    As was noted in the reasons of Dalton JA above, the hearing of this appeal proceeded on the basis that this Court should determine the appeal proposed in the application.  Leave should be given to file the notice of appeal.  For consistency, I will also refer to the applicant as the “appellant” in these reasons for judgment.  Her Honour also records the background to leave having been given to the appellant to reframe the appeal such that the question of whether the pleas of guilty of the appellant constituted a material fact under s 30 LAA became an issue in this appeal.  It should further be noted that the appellant and respondent to this appeal were the respondent and applicant, respectively, in the proceedings below.  To avoid confusion, any excerpts from the primary judge’s reasons will contain square brackets to update references to the parties to be consistent with the naming conventions used in these reasons (i.e. references to “respondent” in the primary judgment will appear as the “[appellant]” when quoted in these reasons).
23. [23]
    This appeal raises two issues for the Court’s consideration:

1. (a)
   first, whether his Honour erred in finding that the plea of guilty constitutes was a material fact; and
2. (b)
   secondly, accepting the plea of guilty was a material fact, whether his Honour erred in finding that it was a material fact of a decisive character.

20. [24]
    The respondent contends that the decision of the primary judge was correct both in his Honour’s characterisation of the plea of guilty as a material fact and his finding that it was a material fact of a decisive character.

Relevant facts

20. [25]
    The factual basis of the allegations relevant to the application and to this appeal were generally not the subject of contest, either in the court below or before this Court.  I will briefly outline the relevant facts.

20. [26]
    The appellant and the respondent were married.  In November 2001, the respondent had been admitted to hospital to undergo further surgery following reconstructive surgery for a condition that she had suffered since birth.  While the respondent was an inpatient, the appellant visited her on at least three occasions.  On three of those occasions, he took her into the public toilet and engaged in non-consensual sexual intercourse (the sexual assaults).  There were no witnesses to the assaults.  The respondent did not report the assaults until 21 July 2017, which was after she had separated from the appellant.

20. [27]
    It is uncontentious that, given that the respondent was the victim of the sexual assaults by her husband, the appellant, she knew from November 2001 all of the material facts constituting a right of action in tort for battery.

20. [28]
    On advice of two people assisting her, the respondent made an application for financial assistance with Victims Assist Queensland under the Victims of Crime Assistance Act 2009 (Qld) in 2017 and 2018 for which she received some payments.

20. [29]
    The respondent provided a statement and several addendum statements to the police between 2017 and 2020.  On 3 October 2019, the police arranged for the respondent to engage in a pretext call with the appellant, during which he is said to have made some admissions in relation to the sexual assaults (pretext call).  However, the recording was inaudible in parts, such that the police informed the respondent that the recording had failed.  Subsequently, the respondent attended the police station on 13 April 2020 and provided an addendum statement setting out her recollection of what was said during the phone call, which included apparent partial admissions including, when the respondent asked the appellant about the three times he raped her in hospital, that the appellant answered “Yes I know what I did and how long do I have to pay for this?”  The respondent’s statement contained a number of gaps in recounting what occurred, as the respondent could not recall all the responses that the appellant made in the conversation.
21. [30]
    On 18 February 2020, the appellant engaged in a police interview.
22. [31]
    According to the police, the appellant had also made various admissions to them, including: “it might have been … it was unconsensual sex I believe on two occasions” and further, “I’m gonna say I’m sorry, guilty … I’m guilty here”.
23. [32]
    The appellant was charged on 20 February 2020 with three counts of rape arising from the sexual assaults.
24. [33]
    On 18 May 2021, the police told the respondent that they believed the appellant would plead guilty to the charges.  In May or June 2021, according to an affidavit of the appellant filed in respect of the application in the District Court, the appellant’s lawyers told the court that the appellant intended to plead guilty on his instructions.
25. [34]
    After being told by police of the appellant’s intention to plead guilty, the respondent subsequently made contact with a solicitor, Mr Herd, on 18 May 2021.  She had a number of discussions in subsequent weeks about her seeking compensation from the respondent.  The respondent told Mr Herd that the appellant had admitted the occurrence of the rapes in the pretext call,^[11] that the police had said he had made some admissions in a police interview and that in May 2021 police had told her that they believed he would plead guilty.  Mr Herd advised her that, while she had a common law claim for personal injuries, he was concerned that it would simply be her word against the appellant’s and there was a real risk that she would fail to discharge the evidentiary onus in the absence of any corroborating evidence.  Given the costs that would be incurred in litigation, she could not commence her proceeding.  Mr Herd stated that if the appellant actually entered a plea of guilty or was convicted, he had no hesitation from a liability perspective of recommending she incur the cost of initiating and pursuing the claim as the conviction would be admissible by s 79 of the Evidence Act 1977 (Qld).
26. [35]
    On 17 August 2021, the respondent instructed her solicitor to commence proceedings against the appellant.  The primary judge accepted that those instructions were given in anticipation of the appellant pleading guilty to the rape counts.
27. [36]
    On 6 September 2021, the appellant entered a plea of guilty to each of the charges of rape.
28. [37]
    On 17 January 2022, the respondent’s signed her Part 1 Notice of Claim form, which was served on the appellant.  The claim was for trespass arising out of the three sexual assaults to which the appellant had pleaded guilty.  On 23 August 2022, the respondent filed an amended originating application seeking an order pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (Qld).  On 26 August 2022, an order was made by Coker DCJ granting leave to commence proceedings, which were to be stayed once commenced pending compliance with chapter 2, part 1 of the Act.  On 5 September 2022, the respondent filed a claim and statement of claim in the District Court at Townsville.
29. [38]
    On 29 March 2023, the respondent filed an application pursuant to s 31(2) LAA to extend her period of limitation until 6 September 2022.  Judge Lynham DCJ made orders granting the extension of time on 28 September 2023. Those orders are the subject of this appeal.

Relevant legislation

41. [39]
    As the respondent claims damages for personal injury in an action for trespass (relevantly, in this case, battery), s 11 LAA requires that the respondent bring an action within three years of the cause of action arising.
42. [40]
    However, s 31(2) LAA empowers the court to extend the period of limitation for an action in damages for trespass, which includes damages for personal injury, where it appears to the court:

1. “(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
2. (b)
   that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; …”. (emphasis added)

41. [41]
    Section 30 LAA defines facts which are “material facts relating to a right of action”, when “material facts relating to a right of action are of decisive character” and what constitutes “a fact within the means of knowledge of a person”.  Those definitions are extracted as follows:

1. “30
   Interpretation

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

1. (a)
   the material facts relating to a right of action include the following─

1. (i)
   the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
2. (ii)
   the identity of the person against whom the right of action lies;
3. (iii)
   the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
4. (iv)
   the nature and extent of the personal injury so caused;
5. (v)
   The extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

1. (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─

1. (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
2. (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;

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

1. (i)
   the person does not know the fact at that time; and
2. (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.

1. (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”.

Material fact – Findings of the primary judge and contentions of parties

1. [42]
   The first question for this appeal is whether the primary judge erred in accepting that the pleas of guilty could be regarded as a “material fact”.

1. [43]
   The primary judge was satisfied that the appellant’s pleas of guilty constituted a material fact because either the pleas of guilty were “an admission by the [appellant] of the occurrence of the acts the subject of the [respondent’s] right of action for trespass or they provide an indispensable link in proving the fact that the trespass caused personal injury to the [respondent]”.^[12]

1. [44]
   His Honour’s reasons accepted that admissions made by the appellant in the pretext call and the police interview were material facts for the purposes of s 31(2) LAA because, if the admissions were accepted as true, they provided proof of the occurrence of the sexual acts the subject of the respondent’s action for trespass.^[13] However, he found neither were of a decisive character.  As to the police’s belief that the appellant would plead guilty which was relayed to the respondent, his Honour found it was not a material fact because it did not assist in the proof of the respondent’s claim; it was merely an intimation of what might occur and was meaningless until guilty pleas were formally entered.^[14]

1. [45]
   The appellant accepts that the reference to “material fact relating to a right of action” extends to evidence to prove a material fact where it is relevant to success in proving the elements of a particular cause of action or opening a gateway to a claim for damages.  The appellant, however, contends that the guilty pleas could not be characterised as a material fact given the facts known to the respondent as she knew all necessary facts from the time the trespass occurred and was in a position to plead her case from that time.  According to the appellant, there was no impediment to the respondent commencing her action in tort for battery other than the fact she was barred by statute.

1. [46]
   In construing s 30 LAA, the appellant contends that the language and legislative intent supports the view that the pleas of guilty should not be considered a material fact.  In the first reading speech of the bill to introduce the LAA, it was said:^[15]

“These provisions will allow an extension of the limitation period in bringing an action for damages for personal injury in cases where the injured person does not know, and could not reasonably be expected to know, the material facts relating to his cause of action until the period of limitation has almost expired or until after the expiry of the period of limitation”.

1. [47]
   The respondent contends that the existence of evidence of the appellant’s conviction was relevant to proving the cause of action of battery, including the direct and intentional physical contact with the respondent by the appellant and that the contact was unwanted.  The respondent further submits that until the guilty plea and the appellant’s conviction, the respondent’s case depended on her evidence alone and the drawing of inferences about the intentional nature of the trespass and the respondent’s acquiescence to the conduct.  The conviction didn’t merely improve the respondent’s prospects in the litigation but constituted previously unavailable evidence which is directly relevant to proof of the elements that the conduct was “intentional” and “unwanted”.  The respondent therefore submits that there was no error in the primary judge accepting it was a material fact.

1. [48]
   The respondent submits that, if a distinction was sought to be drawn between the existence of facts and the existence of evidence to prove facts, that would be contrary to the reasons of McMurdo J in Pikrt v Hagemeyer Brands Australia Pty Ltd^[16] and subsequent case law, which accept that the availability of evidence to prove the elements of a particular cause of action can itself be a material fact where it is relevant to a plaintiff’s success in proving the given elements.

1. [49]
   Given the question of whether the pleas of guilty could constitute a “material fact relating to a right of action” was a matter raised by the Court with the parties, it is appropriate to examine the scope of that phrase in s 30(1)(a) LAA and the cases referred to by the parties before turning to the question of whether the pleas of guilty could constitute a material fact.

Were the pleas of guilty a material fact?

1. [50]
   In order to succeed in an action for battery, the respondent is required to prove that there was a direct and intentional imposition of unwanted physical contact on her by the appellant in a “harmful or offensive way”.^[17]  In the present case, that was said to be constituted by the sexual assaults.  Given the nature of the allegations, the respondent was required to establish facts to persuade the court to the Briginshaw standard.^[18]

1. [51]
   Once an intentional interference with the plaintiff’s physical integrity is proven, the defendant is liable in battery unless he or she establishes one of the available defences, which includes consent to the conduct in question.^[19]

1. [52]
   The contention of the respondent in the Court below was that the appellant’s entering pleas of guilty and his consequential conviction for rape was a material fact relating to a right of action as it was admissible as proof of the circumstances of trespass.

1. [53]
   The appellant’s conviction upon his pleas of guilty is a fact which plainly provides evidence of the battery, rather than being a material fact of the battery action itself.

1. [54]
   The term “material fact” in s 30(1)(a) is defined using the broadening phrases of “relating to” the right of action and “includes” as the precursor to paragraphs (a)(i)(v), by reference to the descriptors in the categories in paragraph (a)(i)-(v) themselves, which gives rise to a level of ambiguity as to what constitutes a material fact for the purposes of s 30(1)(a).  On a plain reading of the section, it is broader than the traditional meaning of “material fact”, in the sense of a fact that must be pleaded and proved to establish the cause of action.

1. [55]
   One of the earliest cases in Queensland to consider the question of a “material fact” was Re Sihvola.^[20]  In Re Sihvola, Wanstall CJ rejected the argument that the fact that a writ of summons had to be issued within time to commence proceedings to claim damages for personal injuries in circumstances where the applicant in that case did not know it had not been issued was a material fact.^[21] His Honour stated that that was not the kind of fact that the legislative scheme deals with in ss 30 and 31 LAA, reasoning that:^[22]

“The fact on which the proposition rests is plainly not the kind of missing fact with which the legislative scheme deals in ss. 30 and 31. These two sections must be read together in the context of the whole statute and when so read, they do not permit of the introduction of a factor of this kind. The judicial approach in the English cases has consistently been to look for an ingredient-relationship between the missing fact and the cause of action”.

1. [56]
   His Honour further observed that:^[23]

“… the basic assumption of the scheme, i.e., that he has not issued a writ because he lacked knowledge of some material fact, on proof of which his cause depended, either entirely or for a worthwhile result. The scheme is designed to relieve such a plaintiff from the consequence of a failure to issue a writ within time which is shown to be due to ignorance of this kind”.

1. [57]
   Wanstall CJ, in considering the how s 30(1)(a) should be construed, noted the different terminology used from the corresponding English legislation and, in particular, the use of “right of action”, stating that:^[24]

“It would seem, from that provision, that the Legislature was taking care to avoid the restrictive procedural connotations of the word “action” (cf. China v. Harrow Urban District Council [1953] 2 All E.R. 1296; and re Hawke (dec’d) Hawke v. Public Trustee [1957] N.Z.L.R. 152). In any event it is clear enough that the compound phrase “material facts relating to a right of action” is capable of embracing factors beyond those which comprise the bare and essential ingredients of a given “cause of action,” as classically defined in Cooke v. Gill (1873) L.R. 8 C.P. 107, per Brett J. at p. 116. It would be consonant with, for example, the inclusion of the factors mentioned in paragraph (a) subparagraphs (iv) and (v) of s. 30, which introduce into the material facts the notions of the degree and extent of injuries and of apportionment of their causation, and the element of the plaintiff’s knowledge, all of which may not strictly be necessary to constitute the cause of action”. (emphasis added).

1. [58]
   The passage underlined has been approved a number of times in subsequent appellate decisions.^[25]

1. [59]
   Since Re Sihvola, authorities in this Court have found that a material fact relating to a right of action includes facts beyond the bare and essential ingredients of the cause of action.

1. [60]
   That approach is supported by the terms of s 30(1)(a) LAA itself.  The use of the term “includes” in the definition of “material fact” in s 30(1)(a) demonstrates that it is an inclusive definition.  It is also broadened by the use of the words “relating to”.^[26]  Similarly, the categories (1)(a)-(v) are not limited to the elements of the cause of the action.  These features of s 30(1)(a) LAA support the view that “material fact” is not confined to the bare elements of a cause of action.

1. [61]
   In Watters v Queensland Rail,^[27] Thomas JA stated that the definition is “inclusive only” and the words “relating to” are broad.  His Honour also observed, the legislation in this respect is remedial legislation which should be interpreted liberally.^[28]  His Honour considered the distinction in s 30(1)(a)(i) and (iv) between “the fact of the occurrence of negligence” and “the nature and extent of the personal injury so caused” and observed that the former was “expressly tied to the concept of the foundation of the cause of action” while the latter was not.^[29]  Thomas JA declined to apply the “more restrictive” construction of s 30(1)(a) LAA adopted by Deane J in Do Carmo v Ford Excavations Pty Ltd.^[30] His Honour found that “material facts referred to in s. 30(1)(a) may include the consequences of injury to the plaintiff including economic consequences” and a fact is not excluded just because it is external to the injury itself.^[31]

1. [62]
   In the course of his reasoning, his Honour stated:^[32]

“Damages are an essential element of a right of action for damages for negligence. The essential requirement for an extension of time is set out in s. 31(2)(a) which requires proof that “a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant …”. That composite test is extrapolated by definitions of its three main components in s. 30(1)(a), s. 30(1)(b) and s. 30(1)(c). The section contemplates analysis of the character of the material fact. One particular matter that s. 30(1)(b) specifically requires the material act to bear is an economic characteristic. It must produce the conclusion that the action would result in an award of damages sufficient to justify the bringing of an action. In this context it would seem inappropriate to limit the connotation of “the nature and extent of the personal injury so caused” to medical concepts or to the mere consequences to the person of the plaintiff. The economic effects of the injury are encompassed, whether one adverts to s. 30(1)(a)(iv) or to the residuum of s. 30(1)(a)”.

1. [63]
   In Do Cormo v Ford Excavations Pty Ltd, Dawson J considered that evidence of a safe system of work was a material fact relating to a cause of action in negligence under the Limitation Act 1969 (NSW),^[33] given it was necessary to establish the occurrence of negligence where it was alleged the conduct of the employer was negligent.^[34]  Dawson J did not consider that the legislation required a distinction to be drawn between primary and secondary facts and stated that what is relevant is what the applicant had to prove in order to establish negligent conduct.^[35]

1. [64]
   Subsequent authorities, considering ss 30 and 31 LAA have recognised that evidence can, in certain circumstances, constitute a material fact for the purposes of s 30(1)(a).  Their consideration of “material facts” has often arisen in the context of the application of s 31(2) of the LAA and whether there is a material fact of a decisive character relating to the right of action.  The test for whether a material fact is of a decisive character is a separate requirement which is defined in s 30(1)(b).  However, consistent with established principles of construing an Act as a whole, it can inform the meaning of “material fact”.

1. [65]
   In Wood v Glaxo Australia Pty Ltd,^[36] the claimant had received a tentative and qualified report in relation to a causal connection between her back condition and an earlier myelogram procedure,^[37] as well as other reports to the contrary.  Seven years later the claimant received a more definitive report that the myelogram was the most likely cause of her back condition and became aware that the respondent to the application was the distributor of dye in question.  On appeal, Macrossan CJ noted that the claimant had been told of the possible link and had hoped she would be able to bring proceedings to establish it.  His Honour stated that the question was whether there was “no room for a further decisive material fact to come to her knowledge or within her means of knowledge” on that issue.^[38]  His Honour stated that there is ambiguity in the expression of concepts in ss 30 and 31 LAA and that the principal difficulty came from the distinction between facts and evidence.^[39]  Macrossan CJ observed that:^[40]

“The statutory scheme constituted by ss 30 and 31 seems to assume that an applicant either may or may not at some earlier time have knowledge of particular matters which are in the category of material facts but he is nevertheless not excluded from the possibility of obtaining an extension of the limitation period if he is not yet (and even if he had made reasonable enquiries and taken advice would not yet be) in possession of some one or more material facts of a decisive character. When some critical knowledge or constructive knowledge of facts is belatedly gained which puts him over the borderline into a position where for the first time he has reasonable prospects and should in his own interests commence his proceedings he may be entitled to his extension.

…

Although s. 30(a)(i) and (iii) refers to certain considerations relevant in the present case as “facts” that epithet is appropriate only in the sense of ultimate facts. Considered as facts they are essentially issues for proof by a prospective plaintiff and they will be capable of proof, if at all, through the medium of the evidence which he is able to collect. The body of evidence which a plaintiff collects or, as it may be put in terms of the expressions used in s. 30, his assemblage of “material facts”, will only constitute a “decisive” collection when an appropriately advised reasonable man in his position is possessed or would, if he had enquired in appropriate fashion, be possessed of what he would regard as reasonable and worthwhile litigation prospects. The policy detectable in this legislation does not suggest that a potential plaintiff with the limitation period running against him must necessarily always commence his proceedings when he has no more than a hint of the existence of a necessary link in his chain of proof but, of course, if being at that point he delays he will do so at his peril because he will only subsequently save himself if he can persuade a judge that he did not know enough or would not, even if he had undertaken appropriate enquiries, have known enough to justify commencing proceedings at an earlier time”. (citations omitted).

1. [66]
   The notion that evidence which proves an essential element of a right of action may constitute a material fact was adopted by McMurdo J in Pikrt v Hagemeyer Brands Australia Pty Ltd,^[41] where the material fact relied upon was a medical report itself where the opinion expressed was that the respondent had a serious back injury.  His Honour stated:

“In s 30 the definition of “material facts relating to a right of action” contains five paragraphs. Each describes a fact of a kind which would be an element of a right of action, or in other words, a material fact required to be pleaded. But the term is defined inclusively, and it can include “factors beyond those which comprise the bare and essential ingredients of a given cause of action”: Re Sihvola; Castlemaine Perkins Ltd v McPhee. The availability of evidence from which to prove some essential element of a right of action can itself be a material fact relating to a right of action, as Macrossan CJ explained in Wood v Glaxo Australia …”.  (citations omitted).

1. [67]
   Justice McMurdo considered that the fact there was a professional opinion that the plaintiff had a serious and permanent injury was a material fact relating to the right of action because of its relevance to an action’s prospect of success and likely award of damages.^[42]  Notably, the reasoning of McMurdo J (with whom Holmes J agreed^[43]) supported the view that “material facts” are not limited to those facts necessary to plead a cause of action, recognising that the plaintiff could have run his case without the benefit of the medical report on the basis of his own evidence but observed without it, the action would not have been worthwhile.  In that regard, the appellant’s submission that the plea of guilty was not a material fact because the respondent was aware of the material facts sufficient to plead a cause of action failed to address the question of whether it was a material fact relating to the right of action.  Further the fact that material facts are known does not exclude an application for extension if a circumstance arises by which the material facts become decisive as is discussed below.

1. [68]
   In Greenhalgh v Bacas Training Ltd,^[44] Keane JA (with whom Cullinane and Lyons JJ agreed) followed both Glaxo Australia and Pikrt and considered that receipt of a medical report making clear that the plaintiff suffered from a permanent condition and his employment was going to be permanently at risk was a material fact relating to a right of action.  In that regard his Honour stated:^[45]

“It is, however, settled by the decisions of this Court in Wood v Glaxo Australia Pty Ltd and Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd that the availability of evidence which establishes an aspect of a claimant's case can itself be a material fact relating to a right of action. The plaintiff's argument is that the report of Dr Van der Walt of 21 June 2006 was a material fact relating to the right of action because of its relevance to the likely quantum of recoverable damages which was of a decisive character because it was unequivocal evidence of unavoidable economic loss”. (citations omitted).

1. [69]
   Glaxo Australia, Pikrt and Greenhalgh were all referred to recently with approval by Fraser JA (with whom Morrison and Mullins JJA agreed) in TRG v The Board of Trustees of the Brisbane Grammar School.^[46]  Although the case was dealing with the question whether to set aside a settlement, the question of whether an extension of time would have been made under s 31(2) of the LAA was relevant.  Fraser JA accepted the fact of alleged oral communications to a headmaster by a complainant, complaining of sexual misconduct by a teacher, were both material and decisive within the meaning of s 31 LAA, given that it would have been necessary to demonstrate the respondent’s knowledge of the risk in the complainant’s claim against the school and without that evidence the appellant couldn’t prove that knowledge.

1. [70]
   In AB v State of Queensland^[47] the appellant sought an extension of time to bring proceedings, asserting negligence by the State after a young boy with a prior history of sexual misbehaviour was placed at her house without disclosure of his previous sexual misbehaviour, about which it was contended the State knew or ought to have known.  The material fact relating to the right of action was the respondent’s awareness of previous sexual misbehaviour.^[48]  Two reports which supported the fact of the State’s knowledge were found by the Court to support the view that the material fact was decisive.  That was so even though McMurdo JA considered that it would have been open to the appellant to plead a case that the State ought to have known of the child’s previous conduct.^[49]  His Honour considered, however, that the appellant would not have been able to plead actual knowledge without revealing they had little or no evidence to prove the fact.  Prior to the discovery of the reports, McMurdo JA considered the appellant’s prospects were poor without evidence of the State’s knowledge, and, in the appellant’s circumstances, that was not a case which ought to have been brought.^[50]  The fact that the appellant held a belief as to the respondent’s knowledge was not regarded by his Honour as sufficient to show she knew of the relevant fact for the purposes of s 30(1)(c) LAA.^[51]  The case provides little assistance to the question presently before the Court.

1. [71]
   The respondent sought to rely on AB v State of Queensland,seeking to contend that until the respondent knew the appellant pleaded guilty, she did not know she was able to prove all elements of the tort of trespass and had a mere “belief” in those matters.  That submission cannot be accepted.  Unlike the appellant in AB v State of Queensland, the respondent did know of all the facts relevant to the cause of action and did not merely hold a belief that the appellant had carried out the relevant acts constituting the action of battery.  Further, the question of the appellant’s belief in AB v State of Queensland was relevant to the question of knowledge, which is not a matter at issue in this appeal.

1. [72]
   The respondents rely upon Charlton v WorkCover Queensland,^[52] as demonstrating the breadth of “material fact”, as the case involved a fact not mentioned at all in s 30(1)(a) LAA.  In Charlton, the primary judge had found that all matters of fact relevant to the applicant’s cause of action were known to the applicant well prior to a determination by the Industrial Magistrate, which permitted the applicant to bring proceedings under the WorkCover Queensland Act 1996 (Qld) and dismissed the applications for an extension of time.  Williams JA (with whom McMurdo P and Holmes JA agreed in this regard) considered that the fact that the primary judge had found that all facts relevant to the action were known to the appellant did not mean that the test in s 31(2) could not be satisfied.

1. [73]
   Williams JA observed that, when one considered s 253 of the WorkCover Queensland Act 1996 (Qld), it must be a decisive consideration that “for the first time a person has become entitled to seek damages for an injury sustained in the course of employment”.^[53]  In his Honour’s view, the decision of the Industrial Magistrate “had the effect of clothing facts already known with a decisive character, namely the consequence that a reasonable person taking appropriate advice on those facts would conclude that it was only then appropriate to commence proceedings”.^[54]  His Honour determined that the primary judge was in error in refusing to make an order extending the limitation period.  Holmes JA also referred to the High Court decision of Queensland v Stephenson and stated that:^[55]

“That decision makes it clear that later events may confer a decisive character on material facts already known, for the purposes of s. 31 of the Limitation of Actions Act 1974. This seems to have been just such a case”.

1. [74]
   Contrary to the respondent’s submission, the case of Charlton is more correctly characterised as one where the decision of the Industrial Magistrate was a circumstance which caused material facts as to the action which were already known to become decisive, given that decision made the proceedings possible and worthwhile.

1. [75]
   Although the decision of the High Court Queensland v Stephenson^[56] considered whether a material fact was of a decisive factor, the majority did observe in the course of its reasoning that the definition of material facts was an inclusive one and not limited to those facts described in s 30(1)(a), observing that:^[57]

“The objectively ascertainable criteria include those facts and circumstances included by para (a) of s 30(1) in the expression “the material facts relating to a right of action”. Paragraph (a) states that the material facts relating to the right of action “include” certain matters. These include the fact of the occurrence of the acts or omissions upon which the right of action is founded ….”. (emphasis added).

1. [76]
   The authorities of this Court, referred to above, support the fact that “material fact” in s 30(1)(a) is broader than the essential elements constituting the cause of action itself and can encompass facts necessary to prove the material facts of a cause of action.  That construction is supported by:

1. (a)
   the language of s 30(1) itself, which is not confined to facts which establish the cause of action: “the material facts relating to a right of action include” the facts outlined in s 30(1)(a)(i)-(v), rather than being limited by those categories;
2. (b)
   the extension of the categories of facts in (i)-(v) to facts which go beyond the bare elements of the action, such as s 30(1)(a)(iv), which relates to the evidence establishing the extent of an injury; and
3. (c)
   the context of s 30(1)(a) in the provisions which relate to the extension of the limitation period.  The test of a material fact of decisive character requires consideration of the prospects of success of an action and whether it is a material fact which affects the claimant’s prospects of success and justifies bringing the action. The assessment of the prospects of success would call for an assessment of the ability to prove the action and the quality of the facts available to prove it. That is consistent with “evidence” of a material fact in s 30(1)(a) being treated as a material fact itself in particular circumstances. That is not to conflate the requirement that there be a “material fact” with “decisive character”. The two requirements must be separately established.

1. [77]
   While the cases upon which respondent relied were with respect to negligence rather than trespass, they are directed to the operation of ss 30 and 31 LAA and not limited to actions in negligence.  Each case, however, turns on its own facts and circumstances and it is necessary to consider the decision of the Court in that context, as is evident from above.

1. [78]
   While “material fact” in s 30(1)(a) LAA is broader than the bare facts necessary to plead the cause of action, it must relate to the right of action.  If the plea of guilty only enhanced the prospects of the respondent’s success by reducing the possibility of the appellant running a defence to the respondent’s claim in battery, it would not be a material fact contemplated by s 30(1)(a) LAA, since it is not a fact relating to the right of action.  In this case, the primary judge and the respondent, however, characterise the plea of guilty differently, namely that the plea of guilty is evidence of the acts the subject of the action for battery having occurred.

1. [79]
   Section 79 of the Evidence Act 1977 (Qld) makes the conviction admissible in the civil proceedings and enables the respondent to rely upon it as part of the proof of her claim.  The offence of rape requires an act of physical penetration to be established as an element of the offence.  The pleas of guilty are admissions and the conviction is therefore evidence that there was an intentional act by the appellant which immediately or directly caused physical contact with the plaintiff, both of which are necessary ingredients of the action of battery^[58] which must be proven by the respondent and are relevant to the prospects of success.  The conviction for rape as a result of the plea of guilty was evidence which could constitute a material fact and therefore is the kind of fact to which s 30(1)(a) LAA applies.

1. [80]
   His Honour was not in error in determining that the pleas of guilty were an admission by the respondent of the acts the subject of the applicant’s right of trespass and admissible as proof of the respondent’s cause of action and a material fact for the purposes of s 30(1)(a) LAA.

1. [81]
   The next issue for determination is whether it is a material fact of a decisive character.

Was the plea of guilty a material fact of a decisive character?

1. [82]
   Lynham DCJ found that the pleas of guilty materially improved the respondent’s prospects of success in her action for trespass as they could be relied upon as admissions of the sexual assaults, the subject of the claim for trespass, and go a long way to proving the occurrence of the events on which the action is founded.  His Honour considered that “in the absence of independent evidence the [respondent] did not enjoy reasonable prospects of success in pursuing an action for trespass against the [appellant] at a time prior to 6 September 2021 which justified bringing an action and the risk of litigation was a further factor weighing against commencing proceedings”.^[59]  The pleas of guilty were therefore, in his Honour’s view, material and decisive because a reasonable person knowing of those pleas and, having taken appropriate legal advice on them, would regard that fact as showing the respondent had reasonable prospects of success in an action for trespass and was justified in commencing proceedings.^[60]  His Honour further considered there were no facts known by the respondent prior to 6 September 2021 which were decisive in character sufficient to justify the respondent bringing an action for trespass against the appellant, rejecting the contentions of the appellant.^[61]

1. [83]
   The appellant contends that his Honour erred in not looking at the critical mass of facts and determining whether that combination of facts together with the respondent’s own knowledge was decisive.

1. [84]
   The appellant contends that the respondent had sufficient material facts of a decisive character to justify bringing proceedings in 2001 after the battery of which she is a victim had occurred.  He contends that the respondent had a critical mass of facts comprising her personal knowledge of the offending together with her knowledge of what was said in the 2019 pretext call, the admissions she was told were made in the police interview and, at the latest, her being informed of the appellant’s intention to plead guilty.^[62]  Accordingly, the appellant submits that, with that combination of facts and the benefit of appropriate advice, a reasonable person would have appreciated the respondent had a worthwhile action to pursue, as the facts created a real likelihood of success and that it was in her interests to pursue it.  The pleas of guilty, according to the appellant, only strengthened that position but it was not a material fact of a decisive character.

1. [85]
   The respondent, however, contends that, while they could have given evidence of the rapes and the admissions made in the pretext phone call, the standard of proof was the civil standard and, given the serious nature of the allegations, the evidential bar to meet those allegations was high, having regard to the Briginshaw standard.^[63]  It also relies on the fact that historical cases of sexual abuse give rise to many difficulties in terms of proof in an adversarial system.^[64]  The fact that evidence could be given by the respondent did not make the material facts decisive as, before the appellant’s conviction, a reasonable person knowing of those facts and having taken the appropriate advice on those facts would not have regarded those facts as showing that they had a reasonable prospect of success in an award of damages sufficient to justify the bringing of an action.  It was not until the appellant’s conviction, which was admissible under s 79 of the Evidence Act 1977 (Qld) in the civil proceeding, that the respondent had independent evidence to elevate her prospects beyond a word against word case and put her chances of success “over the borderline”.^[65]

1. [86]
   While the respondent knew of the material facts that constituted the cause of action in battery, as a result of being the victim, from the time of the acts in 2001, the respondent contends that s 31(2) does not merely rely on knowledge of material facts.  The test relevant to this appeal is whether, for the purposes of s 31(2)(a), the entering of guilty pleas was a material fact of a decisive character relating to the right of action.

Consideration – material fact of a decisive character

1. [87]
   In order for the court to exercise its discretion to grant an extension of time an applicant must establish, amongst other things, that a material fact of a decisive character was not within his or her means of knowledge until a date no more than 12 months prior to the date to which the extension is granted.  Section 30(1)(b) LAA outlines the test for when material facts relating to a right of action are of a decisive character.  Macrossan J in Moriarty v Sunbeam Corp Ltd held:^[66]

“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] 2 Qd.R. 19, 23, 24 and Do Carmo v. Ford Excavations Pty Ltd (1984) 154 C.L.R. 234, 251 per Deane J”.

1. [88]
   In Queensland v Stephenson, the High Court considered the question of what was required for a material fact to be of a decisive character.  Gummow, Hayne and Crennan JJ stated:^[67]

“For circumstances to run against the making of a successful extension application, the material fact must have “a decisive character”. Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say, as the plaintiffs submit in their written submissions, that in a sense none of the material facts relating to the applicant's right of action is of a decisive character until a reasonable person “knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing” the features described in sub-paras (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court.

The practical result of this construction is that an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a)) coincides with the circumstance that a reasonable person with the applicant's knowledge would regard the facts as justifying and mandating that an action be brought in the applicant's own interests (as in s 30(1)(b))…”. (emphasis added).

1. [89]
   Their Honours rejected the argument by the State that an awareness by the plaintiff of the material fact before what was the critical date was sufficient to disqualify the plaintiffs and found that it was beside the point given that there were findings that the material fact had not assumed a decisive character before the critical date.^[68]  The plurality observed that awareness before the relevant date of the material fact, of itself, will be of no significance for the operation of s 31(2)(a) LAA.  That is in contrast to the fact that an awareness of a material fact of a decisive character before that date will be fatal to an application to the court if that is what is relied upon to satisfy s 31(2)(a).^[69]  Their Honours further stated:^[70]

“What must not have been within the means of knowledge of the applicant until the relevant date is not merely a material fact relating to the right of action in question. The material fact must be “of a decisive character”. The provision is so drawn as to assume that there may be material facts which are not of a decisive character”.

1. [90]
   The circumstances of the present case are unusual insofar as the necessary facts to prove the action of battery were within the respondent’s knowledge.  There was not an absence of proof of a particular element of action.  That, however, does not exclude the contention that a material fact of a decisive character relating to the right of action did not come within the respondent’s means of knowledge until the time prescribed in s 31(1) LAA.

1. [91]
   In Pikrt, McMurdo J noted that the defendant could have given evidence constituting the cause of action in negligence and run a trial without the benefit of the expert medical opinion, which his Honour found to be a material fact which was decisive, but considered that, without the medical opinion, the proceeding would not have been worthwhile, given other medical opinions had been adverse or equivocal.^[71]  The fact that the respondent would have been in a position to plead a case based on her own knowledge of the facts does not therefore exclude the possibility that a material fact of a decisive character may still be established.^[72]

1. [92]
   However, whether a material fact is of a decisive character must be tested by reference to facts already known.  As Connolly J in Sugden v Crawford stated:^[73]

“Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s.30(b) are satisfied without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action”.

1. [93]
   The question for the primary judge was whether the applicant (now respondent) had sufficient material facts within her knowledge to make the litigation worthwhile:

1. (a)
   alone or with the combination of facts identified by the appellant as the critical mass of facts; or
2. (b)
   given the case would have turned on the credit and reliability of the evidence given by the respondent, only once the respondent could rely on the guilty plea under s 79 of the Evidence Act 1977 (Qld) as an independent corroborative fact.

1. [94]
   The primary judge identified the correct legal principles and carefully considered whether the respondent could establish that the pleas of guilty were of a decisive character.  He also considered each of the matters which the appellant alleged to be material facts of a decisive character known prior to the pleas of guilty, recognising that the appellant relied on those facts individually and collectively being of decisive character.  For the purposes of his consideration, his Honour accepted that the appellant made statements capable of amounting to admissions in the pretext call and in the police interview of sexually assaulting the respondent.

1. [95]
   The primary judge found that, while the pretext call and police interview with the respondent were “material facts”, they were not decisive.

1. [96]
   In relation to the pretext call, the primary judge found that:^[74]

“… evidence that the [respondent] might have given as to the statements made by the [appellant] in the pretext call said to amount to admissions would not have had any bearing on her prospects in any future civil proceedings because such evidence was not independent and capable of supporting her claim”.

1. [97]
   According to a statement provided by the respondent to police, the police had informed her that the recording of the pretext call had failed, and she set out her recollection of the call in the statement.  According to the appellant, the primary judge made errors of facts in relation to the pretext call which contributed to the appealable error.  In particular, the appellant stated that there was a recording before the court which, in some respects, was audible.  That is not in fact the case and does not accurately state the position.  The recording was not in evidence nor was the extent to which it was audible.

1. [98]
   The appellant’s counsel only raised the existence of the recording in closing submissions, stating it was not in evidence and appeared to have been used by the respondent in her addendum statement as to what occurred.  The primary judge, with the appellant’s counsel’s agreement, stated that, given the statement of the respondent was quite detailed, whether it was partly based on the recording and partly based on his recollection, he would determine the application on the basis of what was recorded in her statement.  That statement contained the appellant’s reply to the accusation by the respondent that he had raped her: “I know what I did”.  His Honour’s consideration that the pretext call was not a material fact of a decisive character was on the basis that it would still depend on the respondent’s evidence of what occurred in the pretext call.  That appears to have been the state of the evidence as, with or without the recording, the respondent’s statement as to the call was littered with gaps, even accepting she had the benefit of the recording.  The evidence of the pretext call would still largely depend upon her evidence as to the content of the call and the state of the evidence before his Honour did not establish that the admission could be proved by the recording itself independently of the respondent.

1. [99]
   As to the appellant’s submission that the cross-examination revealed respondent’s belief that the appellant’s statement “I know what I did” was an admission to the offences of rape and that she understood she could prove that he committed the offence, that is of no significance.  Her belief as a lay person as to the significance of the evidence was irrelevant and there was no issue that the pretext call was a matter within her knowledge.  The admission would have been admissible but, even assuming the respondent’s version was supported by the recording, the extent of the admission is unclear given that the appellant was shortly after recorded as saying “So I’m getting blamed for something I didn’t do”.

1. [100]
   Given the incomplete nature of the recording and the respondent’s recollection of the conversation, his Honour’s view that the pretext call was of no evidentiary value in terms of improving the respondent’s prospects of success to make the proceedings worthwhile does not reveal he was in error in concluding that the admissions made in the pretext call were not of a decisive character.

1. [101]
   While the appellant also sought to contend that the pretext call was significant because the appellant did not dispute the respondent’s version of events, that would have provided fertile ground for cross-examination but did not relevantly elevate her prospects of success in terms of bringing the proceedings.

1. [102]
   As to the police interviews, the appellant contends his Honour erred in his assessment of the transcript of interview and the admissions made in reaching his conclusion that it was not a material fact of decisive character.  His Honour accepted there were admissions made in the police interviews.  To the extent that the appellant seeks to challenge his Honour’s characterisation of some admissions as partial admissions,  noting some statements were inculpatory and some exculpatory, nothing turns on that relevant to his conclusion the admissions made in the police interview were not of a decisive character.  Critical to his Honour’s decision was whether evidence of the statements could have been relied upon by the appellant in some future civil proceedings.^[75]  The respondent only knew what had been relayed to her on a piecemeal basis by police.  The critical matter was, as was found by his Honour, that the respondent was not provided with a copy of the appellant’s police interview, nor was there any realistic prospect of the respondent obtaining a copy once the appellant was charged and she was the main witness until at least after the trial.  As his Honour stated:^[76]

“The fact remained that the [respondent] remained a witness in the criminal proceedings whilst they remained on foot, and it is inconceivable that as a witness a crucial part of the prosecution evidence would have been provided to her even upon request”.

1. [103]
   The respondent was only aware of what the police had told her in terms of partial admissions.  It was hearsay and, given the respondent was a witness in the criminal proceedings, there was no reasonable prospect that she would have been able to obtain the transcript prior to the completion of the criminal trial.  His Honour’s view that the evidence of admissions made in the police interview relayed to the respondent, prior to the admission of guilt would not have materially assisted the respondent’s prospects of success in the civil proceeding was a finding that was open and not in error.

1. [104]
   As to the fact that the respondent was told by police that they believed that the appellant would be pleading guilty to the charges, his Honour found an indication by an accused of their intention to plead of guilty does not constitute an admission and that the basis upon which the police formed the view was not clear.  Lynham DCJ found that, until the appellant pleaded guilty, the appellant remained at liberty to change his plea and plead not guilty to the charges.^[77]  That is clearly correct.  Further, the source of that belief relayed by the police was not disclosed and it was open for Lynham DCJ to find that the source was “unclear”.  While the appellant contends that was incorrect, given the appellant’s affidavit that he had instructed his lawyers to plead guilty and they had indicated that to the court in “May or June 2021”, there is no evidence that was known by the respondent at the time, nor that that was in fact the source of the police’s belief.  Given the respondent had been told of the appellant’s intention in May 2021, it could not necessarily be linked to what the appellant’s lawyers had told the court at a potentially later date.  The indication by the police that the appellant would enter a plea of guilty raised a mere possibility, and was not a material fact.^[78]  In the circumstances, his Honour’s assessment that it was not a material fact and that it was not evidence of anything that assisted the proof of the respondent’s case was correct.  At best, it might have given the respondent more confidence that, if proceedings were instituted, the appellant would not be contesting them.

1. [105]
   Whether an action for damages is worthwhile is an assessment which must be made having regard to the expense and risks of litigation.^[79]  In terms of the risk of litigation, the fact that there was no independent evidence of the events in question and the success or failure turned on the respondent’s uncorroborated evidence against the appellant’s evidence at a time when they were in a matrimonial relationship clearly increased the risk of the litigation.  That risk was relevant to whether, having regard to the costs that would have to be incurred in bringing proceedings, the proceedings would be worthwhile.  That was a matter upon which the respondent had been advised by Mr Herd on or about 2021.  He had advised her that there was a real risk she would not be able to prove her case and he would not recommend her incurring costs to bring a claim at that time but advised that the prospects would be different if the appellant was convicted.  That advice was of course not determinative of whether there was a material fact of a decisive character, nor was it treated by the primary judge in that way.  His Honour did, however, find the advice was proper, stating that:^[80]

“In my view, neither the admissions made by the [appellant] in the pretext call or police interview were not for the reasons explained of a decisive character. I am persuaded that a reasonable person who knew of those facts and having taken the appropriate legal advice on those facts would not regard those facts as showing that a right of action for trespass had reasonable prospects of success and justified the [respondent] bringing an action at that time. Whilst I accept that evidence of the admissions was material because it could prove the occurrence of the sexual assaults, the evidence was not decisive because the admissions were not in a form that could be proved independently. In the absence of evidence of the admissions being in a form that could be relied upon by the [respondent], her case remained one in which her prospects depended entirely on an acceptance of her evidence to prove the acts”.

1. [106]
   While the respondent instructed her lawyers to commence a claim against the appellant in August 2021, prior to the plea of guilty being entered on 6 September 2021, his Honour accepted that those instructions were given in contemplation of the plea of guilty being entered.  That was not the subject of any real challenge upon the appeal.

1. [107]
   The appellant submits that, relevant to the critical mass of information, was the fact that the respondent had made an application for compensation under the Victims of Crime Assistance Act 2009 (Qld).  It is not evident how that could have increased the respondent’s prospects of success since it appears to have been accepted in circumstances where it was a matter of the form being assessed.  While it could have a bearing on the respondent’s knowledge, it was not in issue that she knew the material facts constituting the cause of action.  The application and subsequent payment of compensation could not be reasonably regarded as bolstering the respondent’s prospects of success in a civil proceeding for battery.

1. [108]
   The matters required to be established to prove battery are relatively straightforward.  Having been the victim of the acts, the respondent possessed knowledge of all the facts, which if accepted, would prove the cause of action.  The critical question was whether it was not until the plea of guilty and conviction for rapes was entered that, in the words of Macrossan J in Moriarty v Sunbeam Corp Ltd, she “would not, even with the benefit of appropriate advice, have previously appreciated that [she] had a worthwhile action to pursue and should in [her] own interests pursue it”.^[81]

1. [109]
   To frame the question in a different way, was it only when the appellant pleaded guilty that the respondent’s prospects of success were elevated to a level that a reasonable person appropriately advised would have regarded the action as having reasonable prospects of success, given the admissions and consequential conviction was proof of the intentional acts which constituted battery, or was there a critical mass of facts within the respondent’s means of knowledge prior to that point which would have led a reasonable person, appropriately advised, to regard the prospects of success as sufficient to justify bringing an action?  If the second scenario was the proper characterisation, the newly discovered fact, namely the pleas of guilty, merely strengthened her case and was not decisive.^[82]

1. [110]
   While the facts identified by the appellant may have increased the respondent’s confidence that the appellant would not seek to contradict her version of events, they were insufficient either individually or collectively to transform the respondent’s case from one of insufficient prospects of success into one in respect of which she would have been advised that she had a worthwhile cause of action which justified bringing the claim.  While the admissions in the pretext call did provide some proof to support the respondent’s case, the evidence of the admissions still largely left the respondent having to persuade the court that her evidence should be accepted, where the recording and her evidence were incomplete.  Similarly, while she knew of the police interview and that admissions had been made, that was of little weight given she did not have the police transcript and it was uncontentious that she was unlikely to obtain a copy of the police interview until completion of the criminal trial or the appellant was convicted, given she was the key witness.^[83]

1. [111]
   While to be decisive, the facts which constitute the critical mass do not need to support the fact that the respondent would be successful in proving the cause of action, the matters which the appellant contends establish the “critical mass of information” did not push the respondent’s case beyond the line, providing no significant proof of any material fact upon which a reasonable person taking advice would regard the prospects of success of the respondent’s claim in battery as making the bringing of the proceedings worthwhile.

1. [112]
   While the respondent’s evidence alone would have been sufficient to run the action and the present case did not require medical opinions or proof of the respondent’s knowledge, as has often arisen in other cases, the absence of any probative corroborating evidence to support her evidence was critical in the assessment of prospects in the context of this particular case.  The serious nature of the allegations had to be proven to the level of reasonable satisfaction, as discussed in Briginshaw, where the proof of the allegations was potentially affected by the fact that the events took place when the respondent and appellant had been married.  Until the pleas of guilty of the appellant were entered and could be relied upon as admissions, together with the conviction, the respondent’s case depended on the respondent’s evidence being accepted and advice as to her prospects of success would not realistically have been better than fifty per cent.  The litigation would, in those circumstances, have been too risky to proceed on the basis of her evidence alone,^[84] even with the additional matters relied upon by the appellant, given the costs of litigation.

1. [113]
   The pleas of guilty were admissions and the conviction enabled the respondent to have the benefit of s 79 of the Evidence Act 1977 (Qld), which permits a conviction to be admissible in evidence for the purpose of proving that the person committed that offence in a civil proceeding.  The pleas of guilty to the charges of rape were a material fact of a decisive character given they:

1. (a)
   provided independent proof of the acts constituting battery perpetrated by the appellant;
2. (b)
   were corroborative of the facts known by the respondent herself;
3. (c)
   ameliorated the risks of it being a word against word case; and
4. (d)
   increased the prospects of success of the action to make the bringing of proceedings worthwhile.

1. [114]
   His Honour did not err in determining that plea of guilty was a material fact of a decisive character.

1. [115]
   The appeal should therefore be dismissed.  The orders the Court should make are:

1. 1.
   The applicant have leave to file the notice of appeal, which is exhibit AMP2 to the affidavit of Andrew Peel filed herein on 25 October 2023.
2. 2.
   The appeal should be dismissed.
3. 3.
   The appellant pay the respondent’s costs of the appeal to be assessed on the standard basis if not agreed.