DISTRICT COURT OF QUEENSLAND

1. [1]
   Mrs Chelsea Webb alleges that between July 1976 and January 1978, when she was a child, she was unlawfully and sexually assaulted by her father Neil Andrews at the family home in Buderim. Mrs Webb was born on 8 May 1967 so at the relevant times she was aged between 9 and 10. She claims that as a result of the assault she has suffered personal injuries in the form of mental or nervous shock injuries.

2. [2]
   On 13 December 2005, the defendant pleaded guilty in the Maroochydore District Court to one count of indecently dealing with the plaintiff during the relevant period.

3. [3]
   The relevant time limit pursuant to the Limitation of Actions Act 1974 expired on 8 May 1988.

4. [4]
   She has applied for an extension of that limitation period pursuant to s. 31 of the Limitations of Action Act 1974 until 13 December 2006.

5. [5]
   She also applied pursuant to s. 43 of the Personal Injuries Proceedings Act that she have leave to start the proceedings despite non-compliance with Chapter 2 of Part 1 of the Personal Injuries Proceedings Act.

6. [6]
   Both applications were heard on the 8 December 2006. No doubt as a result of the High Court’s decision in Davison & Ors v State of Queensland [2006] HCA 21 which decision was handed down on 17 May 2006, the defendant advanced no argument to the effect that the plaintiff should not be granted leave pursuant to s. 43.

7. [7]
   The High Court overruled the majority decision known as SG v State of Queensland (No. 2) [2004] QCA 461 in which it had been held that an applicant seeking a s. 43 order after the expiration of the ordinary time limitation period must demonstrate a reasonably arguable case for the granting of the extension to the limitation period.  Accordingly on 8 December 2006, I made order in terms of paragraph 2 of the application filed 16 November 2006.  I then heard full argument on the limitation point and reserved judgment.

8. [8]
   The plaintiff’s argument is a simple one. She says that the fact of the defendant’s conviction in this court on the 13 December 2005 is “a material fact of a decisive character” pursuant to s. 31(2)(a) of the Limitation of Actions Act.  Before turning to the competing arguments, it is necessary to set out some relevant factors.

Factual history

9. [9]
   As I have noted, the ordinary limitation period expired on 8 May 1988.

10. [10]
    The plaintiff in her affidavit filed in support of the application, sets out a number of factors which bear upon the Court’s decision pursuant to s. 31(2).

11. [11]
    She left home when she was 17. She had never told anyone about the alleged sexual abuse prior to this time. At around this time she told a friend who encouraged her to keep it secret.

12. [12]
    She married Graham Webb on 17 October 2003. She met him in October 1998 and she recalls telling him what had happened in late 2000.

13. [13]
    In June 2004 she made a formal complaint to Police. Her statement dated 28 June 2004 alleges extensive sexual abuse in the relevant period.

14. [14]
    In April 2004 as part of the police investigation she spoke to her father about the sexual abuse while wired for sound and he made limited admissions which formed the basis of his later plea.

15. [15]
    She was told in August 2005, by the Office of the Director of Public Prosecutions that there was a plea agreement reached between them and her father’s legal representatives which resulted in a plea of guilty. She was asked to “drop” other charges then pending.

16. [16]
    After her father pleaded guilty, she received advice from a victim liaison officer from the DPP and she says this was the first time that she realised the she may be entitled to compensation. From the material, I infer that this related to compensation under the now repealed provisions of the Criminal Code which would have been limited to $5000.

17. [17]
    On 28 April 2006, she consulted Mr Crew her present solicitor and that was the first time she realised that she may also be entitled to damages at common law subject to obtaining an extension of the limitation period. She then took some months to decide if she would proceed.

18. [18]
    It is conceded on her behalf that prior to the plea of guilty, she knew that what her father had done was wrong.

The competing arguments

19. [19]
    For the purposes of this application the respondent advances no argument to suggest that there is no causal link between her present psychological problems and the sexual abuse which is clearly established on the medical evidence.

20. [20]
    Rather, Mr Alexander, who appeared on behalf of the defendant, submits that Mrs Webb has not satisfied the onus upon her in establishing that she became aware of a material fact of a decisive nature within the last 12 months. This is a pithy summary of the helpful way in which the test was stated in Pizer v Ansett Australia Limited [QCA] 29 by Thomas JA at paragraph 16 of his Honour’s judgement:

“If a reasonable woman, knowing what the plaintiff must have known, and having taken appropriate advice on those fact would have regarded them as showing that a right of action would have reasonable prospects of success resulting in an award of damages sufficient to justify the bringing of the action and that she ought in her own interest to bring it, then the plaintiff fails to show “that a material fact of a decisive nature relating to the right of  action was not within the means of knowledge of the applicant” prior to the necessary date”.

21. [21]
    His Honour has there incorporated the words of s. 30(1)(b)(i) and (ii).

22. [22]
    Mr Alexander argues that the plea of guilty is not of a material nature because it is “evidentiary in nature only”, and that in any event she knew her father’s conduct was wrong well prior to 13 December 2005. I cannot see the point of his argument that the fact is not material (in terms of s. 30(1)) merely because it is evidentiary only. It is properly conceded by him that the interpretation provision is s. 30(1) is inclusive, rather than exclusive or exhaustive. Mr de Plater submits, correctly in my view, that an admission of the intentional tort itself is a fact that could be both pleaded and proved. I agree with him that the plea of guilty, albeit to one count only, takes the subject matter of the proceeding from a word against word case to proof of an element of the tort on which Mrs Webb can rely and from which her father cannot resile.

Of a decisive character

23. [23]
    Mr Alexander argues that Mrs Webb ought to have known of her father’s guilt (and inferentially have known that she had reasonable prospects in a damages claim) prior to 13 December 2005 because of a number of factors, including her statement to the police, her taping of her father’s admission and her conversation in August 2005 with a DPP officer. He relies on a decision of White J in Carter v The Sisters of Mercy of Rockhampton & Ors [2000] QSC 306, a case which he describes as “analogous” to the present.

24. [24]
    In that case, the applicant for an extension of time, had been a resident as a child in the now notorious Neekol Orphanage outside Rockhampton. She alleged that she had been raped and sexually abused by an employee of the defendant. The alleged material fact of a decisive nature was the provision of a psychiatric report addressing issues of causation and the extent of personal injury caused by the sexual abuse.

25. [25]
    Her Honour said at page 5, paragraph 13 of her judgement (by application of the appropriate test) said:

“The problem, as I see it, for the applicant is that she was in possession of the necessary facts to commence an action against the defendants for negligence or assault from the time the limitation period commenced to run. Even if it be accepted that her life until she married at 19 was not such as to prompt her to take advice in respect of those facts, there is nothing in the material to suggest that she could not have done so in that long period before she finally took her complaints to the police at the beginning of 1997. The facts necessary to found an action for damages for assault and trespass to the person against the fourth defendant were all known to the applicant. She did not suppress them. On the contrary, she would have been advised, had she sought advice, that the damages would be likely to be considerable.”

26. [26]
    Her Honour’s judgment was upheld on appeal in Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors [2001] QCA 335.

27. [27]
    It is immediately obvious that the facts of this case are quite different from those before White J. I am told that neither Counsel can find any decided case where the material fact of decisive nature is a plea of guilty by the proposed defendant. This was not the case in Carter and, in my opinion, particularly having regard to the objective nature of the test, the relationship between the parties here and the applicant’s evidence on how that effected her decision making, is very important.  GU v TO [2005] QCA 480 is a case involving leave under s. 43 (prior to Davison) and the tension with s. 31 in the case of an applicant who alleged he was sexually abused by a curate as a child.  The majority (McMurdo P at paragraph 12 and Jerrard JA at paragraphs 61-63) seem to recognise, at least potentially, that the discovery of evidence of sexual abuse could form the basis of a successful application to extend the limitation period.

28. [28]
    In my opinion that applicant has satisfied the onus upon her, and I make orders in terms of paragraph 1 of her application filed 16 November 2006.

29. [29]
    I will hear the parties on costs.