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AZX v Roman Catholic Trust Corporation for the Diocese of Townsville[2025] QSC 59

AZX v Roman Catholic Trust Corporation for the Diocese of Townsville[2025] QSC 59

SUPREME COURT OF QUEENSLAND

CITATION:

AZX v The Roman Catholic Trust Corporation for the Diocese of Townsville [2025] QSC 59

PARTIES:

AZX

(plaintiff)

v

THE ROMAN CATHOLIC TRUST CORPORATION FOR THE DIOCESE OF TOWNSVILLE

(defendant/respondent)

FILE NO:

5081 of 2024

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 April 2025

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2025, 11 February 2025, 28 February 2025, and 18 March 2025

JUDGE:

Sullivan J

ORDER:

  1. Originating Application dismissed

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – WHAT ARE MATERIAL FACTS – where the plaintiff was a teacher at a Christian Brothers’ School – where the respondent was a Brother at the relevant School – where the plaintiff’s personal injuries action is based on an alleged sexual assault by the respondent in 1978 – where the plaintiff applies for an extension of time under s 31(2) of the Limitation of Actions Act 1974 (Qld) – whether a material fact of a decisive nature came within the means of knowledge of the plaintiff after 31 May 2023

Limitation of Actions Act 1974 (Qld), s 11, s 30, s 31

BEK v BEL [2024] QCA 154

Berg v Kruger Enterprises (Division of Besser Queensland Limited) Ltd [1990] 2 Qd R 301

Bougoure v State of Queensland [2004] QCA 485

Castillon v P&O Ports Limited (No. 2) [2008] 2 Qd R 219

Dick v University of Queensland [2000] 2 Qd R 476

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234

Ex parte Bolewski [1981] Qd R 54

Jones v Central Queensland Hospital and Health Service [2024] QSC 165

Hopkins v State of Queensland [2004] QDC 21

NF v State of Queensland [2005] QCA 110

Queensland v Stephenson (2006) 226 CLR 197

Re Sihvola [1979] Qd R 458

COUNSEL:

R D Green for the plaintiff/applicant

P Telford for the defendant/respondent

SOLICITORS:

Moody Law for the plaintiff/applicant

Jensen McConaghy Lawyers for the defendant/respondent

Introduction

  1. [1]
    The plaintiff brought an application seeking an extension of the time limit to commence a personal injuries action.  The extension of the time limit is sought pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) (“LAA”).
  2. [2]
    The personal injuries action is based on an alleged assault said to have occurred on 3 February 1978 by a Brother Proctor at a school in Queensland (“the School”).  The plaintiff, at that time, was just under 21 years of age and was a young teacher who had recently been appointed to the School.
  3. [3]
    For the purposes of this application, the plaintiff and the defendant were not in dispute about a number of matters.  They may be summarised as follows:
  • It was no part of the plaintiff’s case in this application that there was at any time an agreement or an operative estoppel so as to cause time to stop in respect of the limitation period (including the operation of ss 30 and 31 of the LAA).
  • This application for the extension of time pursuant to s 31(2) of the LAA was filed on 23 April 2024.
  • The claim and statement of claim for the substantive proceeding claiming damages for the personal injury was filed on 31 May 2024. 
  • The date of filing of the claim and the statement of claim is the critical date for the purposes of the extension of time application.
  • Section 31 of the LAA only allows an extension of 12 months from the date when a material fact of a decisive character relating to the right of action comes within the means of knowledge of the plaintiff.
  • The real issue then, in this application, is whether it appears to the Court that on and from 31 May 2023 a material fact of a decisive character relating to the right of action came within the means of knowledge of the plaintiff.
  • If the answer to that real issue is in the negative, then this application should be dismissed.
  • The plaintiff has had capacity to give instructions to her solicitors at all material times.
  1. [4]
    Something should be said at the outset as to how this application was ultimately conducted.  Pursuant to Court directions, written submissions were exchanged between the parties.  The application was then heard over two days. During closing submissions, the plaintiff, by her counsel, confined her case to two specifically identified matters which were said to be the material facts of a decisive character relating to the cause of action which were not within her means of knowledge until after 31 May 2023.
  2. [5]
    In respect of those two matters, the material facts of a decisive character were said to have come within her means of knowledge on 3 July 2023 and 8 April 2024, respectively.  I will set out those two identified matters later in these reasons.
  3. [6]
    I had intended to deliver ex-tempore reasons in this application on 28 February 2025.  Prior to my doing so, I raised via an email from my Associate to the parties, and then in open court, the existence of a series of decisions of this Court and a decision of the High Court. These decisions were, in my view, directly relevant to the reliance on the two identified matters by the plaintiff. As none of these authorities had been raised by the parties, this process was engaged in to ensure procedural fairness.
  4. [7]
    At the resumed hearing, counsel for the plaintiff accepted that the two identified matters could not be maintained as material facts relating to the cause of action in light of the identified authorities. The plaintiff, by her counsel, formally abandoned reliance on the two identified matters in support of her application for an extension.
  5. [8]
    However, at the same resumed hearing, the plaintiff sought to rely upon a third and quite separate argument which had not been relied upon in closing submissions at the initial oral hearing.  Counsel for the plaintiff submitted that this third argument had been raised in the written submissions.  That may have been so, but to the extent that it had been raised, it was itself abandoned by the plaintiff’s reliance, in the oral closing submissions, solely on the other two matters.
  6. [9]
    Nonetheless, the defendant did not object to the plaintiff re-agitating this third and separate matter.  In that circumstance, I will allow the third matter to be considered, despite how the case had previously been run.
  7. [10]
    Ultimately, I have concluded that the answer to the real issue is in the negative.
  8. [11]
    Consistent with the agreed position of the parties, the application will be dismissed.
  9. [12]
    In dismissing the application, it is unnecessary to deal with how the discretion to extend time under s 31(2) of the LAA would have been exercised.  Accordingly, I do not make any findings on that issue, including the making of findings of fact on the issue of any prejudice to the defendant.

Statutory provisions and general principles

(i) Statutory framework

  1. [13]
    Section 11(1) of the LAA provides that an action for breach of duty resulting in damages for personal injury must be brought within three years from the date on which the cause of action arose.
  2. [14]
    Section 11A of the LAA modifies that position in relation to an action for damages for personal injury resulting from the abuse of a child.  It does so by removing the time limitation entirely.  A child is defined as a person under the age of 18.  The plaintiff does not have the advantage of s 11A as she was not a child at the time the alleged abuse occurred.
  3. [15]
    Sections 30 and 31 of the LAA are the provisions relevant to an extension of time for a cause of action arising out of personal injury.  Those sections provide as follows:

“30 Interpretation

  1. For the purposes of this section and sections 31, 32, 33 and 34—
  1. the material facts relating to a right of action include the following—
  1. the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
  1. the identity of the person against whom the right of action lies;
  1. the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
  1. the nature and extent of the personal injury so caused;
  1. the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
  1. 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. 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
  1. 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. a fact is not within the means of knowledge of a person at a particular time if, but only if—
  1. the person does not know the fact at that time; and
  1. 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. 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.

31 Ordinary actions

  1. This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
  1. 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. 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
  1. 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. [16]
    The power to extend the time limit for the relevant 12 month period is found in s 31(2) of the LAA.  The parties accepted that the criteria in s 31(2)(b) was met.  It is the criteria which is found in s 31(2)(a) which relates to the real issue in this case.
  2. [17]
    The criteria in s 31(2)(a) of the LAA is then informed by s 30.
  3. [18]
    Section 30(1)(a) addresses the question of what is a “material fact relating to a right of action”. Section 30(1)(b) addresses the question of what gives to a material fact a decisive character.

(ii) General approach to an application brought under s 31 of the LAA

  1. [19]
    It is the plaintiff who bears the onus of establishing that she is entitled to an extension of the limitation period.
  2. [20]
    The proper approach to an application brought pursuant to s 31 of the LAA is a “step-by-step” approach.  Justice Dawson in Do Carmo v Ford Excavations Pty Ltd[1] explained the process as follows:[2]

“…The first step is to inquire whether the facts of which the appellant was unaware were material facts...If they were, the next step is to ascertain whether they were of a decisive character…If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date…”

  1. [21]
    The advantage of this step-by-step approach is that it forces the plaintiff to specifically identify what is said to be the material fact, and exactly when it is said to have become decisive and within the means of knowledge of a plaintiff.

(iii) Principles applicable to “material facts relating to the cause of action” and s 30(1)(a) of the LAA

  1. [22]
    Dealing first with the concept of “material facts relating to a right of action”, the following principles apply.
  2. [23]
    In BEK v BEL [2024] QCA 154, Brown J (as her Honour then was), with whom Morrison JA agreed, observed at para [54] to [60] as follows:

“[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.

[55]One of the earliest cases in Queensland to consider the question of a “material fact” was Re Sihvola. 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. 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:

“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”.

[56]His Honour further observed that:

“… 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”.

[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:

“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).

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

[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.

[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”. 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.” (footnotes omitted)

  1. [24]
    As Brown J’s review of the authorities demonstrates, a material fact will extend beyond bare and essential ingredients of the cause of action.  However, the concept still requires an ingredient relationship between the missing fact and the cause of action.  In Ex parte Bolewski [1981] Qd R 54, WB Campbell J (as his Honour then was) noted the earlier decision of Re Sihvola [1979] Qd R 458, where Wanstall CJ had referred to the need for an ingredient relationship between the missing fact and the cause of action in order for it to be a “material fact” within the meaning of the equivalent of s 30(1)(a).  In the circumstances of the case before him, WB Campbell J observed as follows at p. 60:

“In my opinion there is no ingredient-relationship between the missing fact as to lack of knowledge of a right to bring an action on the known facts and the right of action. The applicant received the appropriate legal advice and he and his solicitors were at all material times in possession of all material facts. It seems that the applicant was advised that he may have a course of action at common law for negligence but decided against pursuing it preferring to reserve this right and giving priority to his claim for a lump sum under the Workers’ Compensation legislation. Indeed, as late as May, 1979, he was still undecided as to whether he should institute common law proceedings. If there was a failure on the part of his solicitors, and this is not altogether clear from the material, to cause a writ to be issued, this does not seem to me to be relevant to the applicant’s lack of knowledge.

The fact that a person has obtained wrong advice from his solicitors as to his having a right of action, when the solicitors advice is based on full knowledge of all the relevant circumstances, is not a material fact of a decisive character. Had the applicant within the limitation period given instructions to his solicitors to issue proceedings and they had failed to do so, he could not obtain an extension of time.

Further, the basis of the legislative scheme is that if a person is out of time he may obtain an extension of that time if some facts relating to his right of action are not then within his means of knowledge, but not so if such person does not know that the law has provided that he should bring this action within a specified period. The right of action depends upon the existence of certain facts, the limitation of the period within which the action may be instituted is separate and apart from the facts from which the right of action springs. The fact that a client is not advised by his solicitor of the limitation period laid down by law is not, in my opinion, a material fact of the relevant kind within the Act.”

  1. [25]
    What can be drawn from that decision is the following:
  • The fact that a plaintiff who otherwise knows everything about a relevant action, chooses to pursue another course rather than commencing litigation, will not generate a material fact relating to a cause of action when that alternative course does not produce the hoped for fruits.
  • If solicitors fail to give advice that a claim ought to be filed urgently, then later discovery of that failure will not be a material fact.
  • The issue of the limitation period within which the action may be instituted is separate and apart from the facts from which the right of action springs, and facts pertaining to knowledge of or about the limitation period will not be material facts relating to the cause of action itself.
  1. [26]
    The decision of Ex Parte Bolewski was cited with approval both in the High Court in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 and in the Full Court in Berg v Kruger Enterprises (Division of Besser Queensland Limited) Ltd [1990] 2 Qd R 301.
  2. [27]
    In Berg v Kruger Enterprises (Division of Besser Queensland Limited) Ltd [1990] 2 Qd R 301, Connolly J with whom Ryan and Cooper JJ agreed, relevantly observed as follows at 302-303:

“The fact of the occurrence of negligence is one of the material facts which will satisfy s. 31(2)(a). See s. 30(a)(i). It is however quite clear as a result of authoritative exposition not only in Australia but in the United Kingdom that it is the acts or omissions alleged to constitute the tort and not legal concepts or causes of action with which the legislation is concerned. It is sufficient to refer to the judgment of Wilson J in Do Carmo v. Ford Excavations Pty Ltd (1984) 154 C.L.R. 234 at 244 for the proposition that the legal consequences of a fact or facts are to be excluded from the category of material facts. His Honour cited with evident approval the speech of Lord Pearson in Smith v. Central Asbestos Co. [1973] A.C. 518, 541 and 542, where his Lordship said:

“It seems to me the Parliament has drawn the line between ignorance of facts (material and decisive facts) and failing to draw the conclusions which a reasonable man, with the aid of expert advice, would have drawn from those facts as to the prospect of success in an action. If the plaintiff did not know one or more of the material and decisive facts, his lateness in bringing the action is excused. If he knew all the material and decisive facts, but failed to appreciate his prospects of success in an action because he did not take expert advice or obtained wrong expert advice, his lateness in bringing the action is not excused.”

See also McIntyre v. Armitage Shanks Ltd [1980] S.L.T. 112. A similar  conclusion had been reached by W.B. Campbell J., as he then was, in Ex parte Bolewski [1981] Qd.R. 54. See also at 249 per Deane J. and at 254 per Dawson J. with whom Brennan J. concurred…”

  1. [28]
    Consistent then with Ex parte Bolewski, the material facts which relate to the cause of action are separate and distinct to legal concepts or causes of action with which the legislation is not concerned. A plaintiff will not create a material fact by the receipt of wrong advice about a cause of action or the limitation period, or by way of an omission by his or her legal representatives to give such advice at all.

(iv) Principles applicable to s 30(1)(b) of the LAA

  1. [29]
    In Queensland v Stephenson (2006) 226 CLR 197 at 207, Gummow, Hayne and Crennan JJ (forming the majority) discussed the operation of s 30(1)(b) as follows:

“[25]The ascription to material facts of the character of “decisive” looks to the response of an actor. It is here that the exegesis supplied by para (b) of s 30(1) comes into play. The court is to consider the response of “a reasonable person” in the manner explained in that paragraph. The particular claimant is to enjoy the advantage conferred by the provision in s 30(1) for the making of an extension order only by satisfaction of criteria which look to the response of a reasonable person. In this way, s 30(1) assists and controls an understanding of the compound conception in s 31(2).”

  1. [30]
    The compound concept to which their Honours referred was the phrase, “a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant” as that phrase appears in s 31(2).
  2. [31]
    Their Honours went on to then observe as follows:

“[29]…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.

[30]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)). If this conjunction of circumstances first occurs before the commencement of the last year of the limitation period, no application for an extension can be brought; the applicant has the benefit of at least one year before the limitation period expires and is required to act within that time. If the conjunction occurs after the commencement of that last year, the court is empowered, if the other criteria in s 31 are satisfied, to extend time for one year from the date of that conjunction of circumstances.”

  1. [32]
    In Castillon v P&O Ports Limited (No. 2) [2008] 2 Qd R 219, Keane JA (as his Honour then was) observed that there may be a “critical mass of information” known by the plaintiff or within the plaintiff’s means of knowledge which shows that a worthwhile right of action exists. If such a “critical mass of information” occurs, a fact which later comes within the means of knowledge of the plaintiff will not be a material fact of a decisive character if it only reveals that the cause of action may be “more worthwhile”. In the context of the case which was before the Court of Appeal, Keane JA found as follows:

“In the plaintiff's second application at first instance, the plaintiff argued successfully that the material fact of a decisive character was the fact of the termination of the plaintiff’s employment with the defendant on 17 December 2004. In my respectful opinion, quite apart from the circumstance that this fact was obviously known to the plaintiff at the time his first application was heard and determined, the plaintiff had ample basis for concluding that his inability to work as a crane driver and the uncertainty attending his prospects of re-assignment were such as to give rise to worthwhile cause of action prior to 27 November 2001. That later information may have enabled the plaintiff to show that his right of action was “more worthwhile" than it might have previously been thought to be, but it does not alter the circumstance that, in accordance with the evidence supporting the findings of Rackemann DCJ, there was a critical mass of information within the plaintiff’s means of knowledge prior to 27 November 2001 which justified bringing the action.”[3]

  1. [33]
    The words “a reasonable person knowing those facts and having taken the appropriate advice on those facts” as they appear in the first three lines of s 30(1)(b) of the LAA, are not a reference to the actual plaintiff having an opportunity to take appropriate advice or to receive actual advice.  The actor being referred to is identified as a “reasonable person” who is treated as having taken “appropriate advice”. Because the reasonable person is a hypothetical person, the reference to taking the appropriate advice is itself a reference to an assumption that the reasonable person has hypothetically taken “appropriate advice”. The concept of “appropriate advice” is then defined in s 30(2) of the LAA. 
  2. [34]
    The section then asks the question whether that reasonable person having taken the appropriate advice would regard the material fact as showing each of the conditions described in sub-paragraphs (i) and (ii) of s 30(1)(b) of the LAA.

Chronology

  1. [35]
    On 3 February 1978, the alleged assault occurred.  It was said to be a sexual assault carried out by a Brother Proctor against the plaintiff.  The plaintiff did not suggest in her evidence that she ever forgot or repressed the memories of the actual assault.
  2. [36]
    The plaintiff deposed to a number of events which occurred throughout her lifetime.  They included the following.
  • The death of her mother on a date which pre-dated the assault, and the detrimental emotional effect it had on her.
  • Her father’s Alzheimer’s and her having to take on the responsibility to deal with aspects of his care up until 1997.
  • The circumstances of her first broken marriage.
  • The ill health of her second husband from 2010, and her having to take responsibility for aspects of his care after that date.
  • The loss of various businesses which she and her second husband had been involved in and their subsequent bankruptcies.
  • The plaintiff having to deal with an injury which she incurred to her back as a result of a fall in a workplace in 2016.
  • Her having to deal with breast cancer in 2019.
  1. [37]
    These facts were put forward, in part, to explain why, throughout the greater period of her life, she had failed to realise the impact that the alleged assault had otherwise taken on her psychiatric wellbeing.
  2. [38]
    After the plaintiff’s back injury in 2016, the plaintiff had attended conferences with psychiatrists in 2018 in respect of the claim she was advancing for a workplace injury.  It is clear that the plaintiff told those psychiatrists that she had been sexually assaulted by Brother Proctor in the 1970s.  In 2018, two of the psychiatrists she had seen obliquely referred to the 1978 assault as a potential cause for the plaintiff’s then PTSD like symptoms.  One of the psychiatrists referred to trauma in “early adulthood,” the other psychiatrist referred to, “pre-existing, developmental, personality, family, financial, and other stressors” when discussing potential causes of the symptoms.
  3. [39]
    It is ultimately unnecessary to determine whether the plaintiff ought to have had within her means of knowledge at that point in time the connection between her psychiatric injuries and the assault.  I will observe that these reports were prepared in respect of a workplace injury and were not prepared in respect of ascertaining a connection between the alleged assault and any psychiatric injury she may have had.
  4. [40]
    In May 2021, the plaintiff saw a newspaper article concerning allegations that Brother Proctor had sexually assaulted persons at another school.  She deposed to, and I accept, that on that occasion her husband said words to the effect, “Isn’t this the guy who raped you?” 
  5. [41]
    As a result of that newspaper article, and most likely as a result of it identifying Moody Law as the firm representing complainants in respect of the allegations set out in the newspaper article, the plaintiff contacted her present solicitors, Moody Law.  They are a New South Wales firm of solicitors.
  6. [42]
    As a result of that initial contact, the plaintiff executed and returned to Moody Law a retainer agreement on 24 June 2021.  Moody Law’s engagement commenced on this date.
  7. [43]
    The retainer is not in evidence, but an email of 7 June 2021 records that Moody Law had advised that they were willing to act on a ‘no-win, no-fee’ basis.
  8. [44]
    Between 24 June 2021 and 14 April 2022, instructions were obtained for a witness statement from the plaintiff.  The plaintiff, in her evidence, identified that during the period June 2021 to April 2022 she struggled immensely to provide the information asked for because of the intense emotional feelings she would get when she sat down to write about what had happened to her.  Mr Moody, of Moody Law, gave evidence that during the period 23 June 2021 and 31 January 2022 the plaintiff was unable to complete particular forms she had been given.  Mr Moody said that his understanding was that this was due to a combination of the plaintiff having prior commitments and the mental distress the plaintiff experienced when recounting details of the alleged abuse.  Mr Moody then stated that between 31 January 2022 and 14 April 2022, instructions were gradually obtained for the purpose of preparing the plaintiff’s draft witness statement.
  9. [45]
    I accept that during the period 24 June 2021 and 31 January 2022, the prior commitments of the plaintiff and her distress in having to recall details of her recollections of events would have contributed to delays in the production of her draft statement. I am not able to make a detailed finding on the evidence as to the extent of delay which can be attributed to each cause.
  10. [46]
    On 14 April 2022, a conference occurred in Brisbane between the plaintiff, Mr Moody and a Ms Zhou.  Ms Zhou had finished her law degree but was not then admitted as a legal practitioner.  At that time she had the day-to-day conduct of the plaintiff’s file.
  11. [47]
    Mr Moody gave evidence that he was satisfied that the draft witness statement of the plaintiff sufficiently captured the plaintiff’s allegation of sexual abuse against Brother Proctor.  Mr Moody said that upon forming this state of satisfaction, he instructed Ms Zhou to place the defendant on notice of the plaintiff’s claim, with the view of engaging in alternative dispute resolution processes.
  12. [48]
    There was a file note made of this conference.  It was produced by Ms Zhou. Whilst Mr Moody in his affidavit had originally identified this as a contemporaneous file note recording what was discussed during the conference, he subsequently sought to alter this position in his oral evidence-in-chief by saying the last entry in the file note was not accurate.
  13. [49]
    That last entry in the file note was as follows: “Put defendant on notice: [Plaintiff] only recently aware of connection between symptoms and abuse.”
  14. [50]
    When Mr Moody was cross-examined on that alleged change of evidence, the most that Mr Moody could say was that the last entry would not reflect something he would have said in the meeting.
  15. [51]
    Ultimately, I accept that the file note was an accurate contemporaneous record of what was discussed at the meeting. 
  16. [52]
    I do so because Ms Zhou, the author of the file note, was called and gave evidence that it reflected her interpretation of the meeting.  Further, less than a month later, there is a Moody Law file note of 10 May 2022 recording Mr Moody and Ms Zhou speaking to a representative of the defendant.  In the file note of that conversation, Mr Moody is recorded as saying, “[Plaintiff] did not connect the trauma she has been suffering to the abuse and there is still a breach of duty of care.”  That statement is broadly consistent with the last entry in the 14 April 2022 file note.  Whilst it does not state that the plaintiff was recently aware of the connection, that is implicit to what is recorded as being said.
  17. [53]
    Returning to the 14 April 2022 file note, it should be noted that it relevantly records that a limitation period issue was discussed. It included the following statements:

“ - Limitations issue – not a child at the time of the Abuse

…

- Mention limitations issue in instruction letter (?)”

  1. [54]
    The first of the entries highlighted above was obviously a reference to s 11A of the LAA not applying to the plaintiff because she was not under 18 at the relevant time.  The second entry highlighted above indicates that some discussion about limitation issues had occurred by 14 April 2022.  It may have been a reference to consideration being given to raising the limitation issue with the defendant.  This seems the most likely meaning, however no clarifying evidence was given on the matter.
  2. [55]
    I note here that the plaintiff’s affidavit material did not ever deal with what specific advice she received in relation to limitation issues.
  3. [56]
    Mr Moody, when cross-examined in the context of the 14 April 2022 date, said that the plaintiff had regularly been told that she had limitation issues and that her action was prima facie barred.
  4. [57]
    Accordingly, I find that by 14 April 2022 the plaintiff had an awareness that her action was prima facie barred, and further, that she had received advice that she had limitation issues.  To the extent that the plaintiff’s exact state of knowledge of limitation issues is relevant in this case, it should be remembered that the plaintiff bears the onus of proof and did not, with any specificity, identify when and what exact advice she received in respect of that issue.
  5. [58]
    On 10 June 2022, a teleconference took place between the plaintiff, Mr Moody and Ms Zhou.
  6. [59]
    A file note was made of this meeting and was presented as an accurate file note.  It is plain that in this file note there is a recording of discussions of things which would have been directly relevant to an application to extend time under ss 30 and 31 of the LAA.
  7. [60]
    The file note provided, amongst other things, as followings:

“…

– To do:

– Get short statement on whether was able to make a claim

– Book Dr Murray for 3 months

…

  1. –Ask Mr Murray: When did [plaintiff] first become aware of her ability to make a claim
  2. –Commcare: Depression (not sure where the depression came from - only later on when studied psychology that she realised where depression came from) 1990. Other injuries (back) - pain came from other sources? They tried to put it on other things (bipolar, borderline, saw psychiatrists - confusing where this came from).
  3. –Lots of complex things that happened in life - even today, it is hard to know where the psychiatric conditions came from
  4. –[Plaintiff] never considered to make a claim before seeing Moody Law. [Plaintiff] was not a child but an adult. She drank far more than she should have and he stalked her all weekend. It was feeling like she was to blame. As a Catholic growing up, used to curtsy.
  5. –Jason: Issue is that once the lawyers get this matter, they will either accept it or not accept it. We will have argument. Need statement
  6. –Limitation period: not convinced, need to go to judge to make determination. It is unclear if the judge will accept it. Knowledge - did it affect you? Yes
  7. –First hurdle - most significant - catastrophic if it does not get further.

…

  1. –[Plaintiff]: had to suppress and pretend it did not happen for 12 months. Did not continue contract with them. I pretended that it was all fine.
  2. –Jason: No general exception of being a Catholic. What argument is that [Plaintiff] never received legal advice before ML. No clear diagnosis - no clear clinical opinion that it was caused by the abuse.
  3. –No legal advice. NO fault. NO diagnosis regarding depression, confusion on where diagnosis came from, alcoholic. Knowledge on rights to make a claim. At the time, I felt that I was to blame, young and naïve, distressing and confusing. Got out of there. Alcohol, experienced other difficulties (depression), no one told me where it come from, never got legal advice.
  4. –Husband - saw local newspaper information on Proctor. [Plaintiff] read it and started drinking alcohol. Saw Moody Law was acting in relation to Proctor. This was the first day that [plaintiff] realised that she may have been able to make a claim and contacted Moody Law.

…

  1. –Still arguable case. There is resistance from Defendant. Wait to get lawyers to come back until confirming the psychiatrist. Murray in 3 months.
  2. –Basis of affidavit if challenging limitations period.”
  1. [61]
    The reference in that file note to ‘Mr Murray’ was a reference to a Dr Murray, who was ultimately retained as an expert psychiatrist for the plaintiff.
  2. [62]
    Also on 10 June 2022, a letter was sent by Moody Law to the defendant notifying of the claim.  Mr Moody identified that this letter was intended for the purpose of engaging the defendant in alternative dispute resolution processes.
  3. [63]
    On 12 July 2022, Moody Law advised the plaintiff that she would be seen by Dr Murray on 16 September 2022.  On 16 September 2022, a video conference occurred over several hours between the plaintiff and Dr Murray.
  4. [64]
    Dr Murray completed his report dated 11 February 2023.  Despite the date of the report, the evidence of a Mr Zhang of Moody Law was that Moody Law only received the report on 3 March 2023 by email.
  5. [65]
    On 3 April 2023, a teleconference was held between the plaintiff, Mr Moody and a Ms Simpson.  Ms Simpson was a paralegal at Moody Law, and was heavily involved in the conduct of the plaintiff’s file under the supervision of Mr Moody. Mr Moody gave evidence that during the teleconference he advised the plaintiff that Dr Murray’s report indicated that Dr Murray had determined that it was likely the plaintiff had sustained a psychiatric injury from the abuse.  Mr Moody gave evidence that he recalled that during the conversation the plaintiff became upset, particularly when he explained to her the psychiatric conditions that Dr Murray had found and the contribution that Dr Murray found the abuse to have had on those conditions.
  6. [66]
    Also on 3 April 2023, Moody Law sent an email attaching a letter addressed to the plaintiff. Mr Moody said of the letter that it further articulated what was discussed with the plaintiff during the teleconference. I accept Mr Moody’s evidence of what occurred in the teleconference and that the letter further articulated what was said at it. On the balance of probability, I find that the email and attached letter came to the attention of the plaintiff on that day. The plaintiff was obviously engaged with and keenly interested in the views of Dr Murray, and is likely to have sought out and read the email shortly after it was sent. The plaintiff did not suggest in her affidavit that she saw the email and letter on some later date.
  7. [67]
    The 3 April 2023 letter provided, in part, as follows:

“…This letter is an update on your civil claim and the supporting evidence.

Your Expert Report

  1. We have recently received a 23 report of Dr Daniel Murray on 11 February 2023.
  2. To remind you, this report is not clinical advice. The purpose of the report is to provide expert evidence that you have or are likely to have sustained psychiatric injury from the sexual abuse.
  3. Therefore, it is customary that we do not send you a copy of the report. Also, this is a witness statement and therefore it can be unhelpful for witnesses to exchange statements.
  4. Below are some important findings from the report for you to be aware of.

Diagnosis and Findings

  1. Dr Murray provided an opinion that you have or had the following:

5.1 Alcohol Use Disorder (alcohol dependence);

5.2 Generalised Anxiety Disorder;

5.3 Episodic Panic Disorder (chronic relapsing and treatment resistant); and

5.4 Post-Traumatic Stress Disorder.

  1. He also states:

6.1 “In my opinion, given the absence of prior traumatic stress of psychological/psychiatric dysfunction prior to the episode of abuse, and given the nature of the traumatic stress that she was exposed to whilst in a highly vulnerable circumstance, I feel that the trauma of her sexual assault at age 20 was almost exclusively the cause of her psychiatric conditions.”

  1. In relation to your awareness between the abuse and psychiatric injury, Dr Murray stated:

7.1 “From the history I elicited, [the plaintiff] proceeded with her life, relationships and career as best she could following the abuse. This was associated with alcohol use and a degree of work hyper focus to numb intrusive memories and emotions related to the abuse.

7.2 By the 1990s, she had sought professional help from psychotherapists and psychiatrists for anxiety, depression, and alcohol abuse – dependency. Despite these professional attendances, she did not disclose the abuse she incurred to the involved treating professionals, let alone draw inference between the abuse and dysfunction that she was experiencing. Given this, I consider that her compartmentalisation and suppression of the traumatic stress led to a diminished awareness of the connection between the abuse and her dysfunction. I note her temperamental stoicism, as observed in an assessing report by a psychologist following a workplace injury in 2005. This likely has contributed to her tendency to proceed as best as possible, with distress and dysfunction from traumatic stress being minimised and supressed psychologically and with alcohol.”

  1. This is helpful to your claim as it provides an opinion that you have suffered an injury from the sexual abuse that is the subject of your claim.

…

Our Opinion on the Report

  1. We satisfied that the report has covered the important issues and provides useful evidence for you claim.
  1. However, please note it is only one person’s opinion based on the information that person has viewed. Other experts may have alternative opinions that may be more or less helpful for your claim than those contained in this report. Please note you have the right to pay for an alternative report if you wish. Please let us know if you want to consider this.
  1. The report provides expert evidence that you have or are likely to have sustained psychiatric injury from the sexual abuse. We will therefore proceed with this report as evidence in support of your claim. If you have any queries about this or do not want us to proceed with this report, please email us urgently with those instructions.

Next Steps

  1. We will now serve our evidence on the Defendant and proceed with the claim.
  1. In addition, we will provide you with an advice letter, outlining our advice in relation to your claim shortly. We will book a meeting with you to discuss how you would like to proceed with this matter.

…”

  1. [68]
    As can be seen from those extracts, the letter specifically identified the psychiatric conditions which Dr Murray had diagnosed, and identified that Dr Murray’s opinion was that each of those psychiatric conditions was almost exclusively caused by Brother Proctor’s assault of the plaintiff.
  2. [69]
    The letter also identified that Moody Law would serve the plaintiff’s evidence on the defendant and would proceed with the claim. It foreshadowed the provision of a further advice letter, said to outline their advice in relation to the plaintiff’s claim.
  3. [70]
    No evidence was led by the plaintiff about what, if any, of that foreshadowed advice was supplied.
  4. [71]
    What the plaintiff did depose to in her affidavit sworn 6 September 2024 was the following:

“[61].  It was not until I saw Dr Daniel Murray on 16 September 2022, and had his report subsequently explained to me on about 3 April 2023 that I realised that the Abuse had directly caused me psychiatry [sic] injury. Following this explanation, I instructed my lawyers to serve this report as evidence and to endeavour to resolve this matter through alternative dispute resolution processes.”

  1. [72]
    The plaintiff gave no evidence as to why she only instructed alternative dispute resolution to be pursued at that stage, rather than seeking to commence legal proceedings.
  2. [73]
    Her actual thought processes from that point in time up to 8 April 2024 are simply not disclosed by the plaintiff in either of her two affidavits. I again note that, to the extent those thought processes were relevant to this application, it is the plaintiff who bears the onus of proof in respect of establishing what they were.
  3. [74]
    On 20 June 2023, Moody Law sent a request to the solicitors for the defendant concerning a proposed agreement to “stop the clock” on the limitation period.  The letter provided, in part, as follows:

“We understand that the Limitation of Actions Act 1974 (Qld) applies to this claim.

It is also customary for your client to confirm in writing to “stop the clock” on the limitation period so that any time that elapses from the date of this request for a period of 12 months or until the date of an informal settlement conference, whichever is the earlier.

Please confirm that your client will not claim time that has elapsed under the Limitation of Actions Act 1974 (Qld) from the date of this letter.

Arguments on limitations will follow.

Please respond in 14 days.”

  1. [75]
    On 3 July 2023, the solicitors for the defendant wrote back, refusing that agreement. They relevantly stated as follows:

“We advise your client’s limitation period continues to run.”

  1. [76]
    Mr Moody gave evidence that on 14 July 2023 he attended a teleconference with the plaintiff and Ms Simpson in which he explained to the plaintiff that an affidavit from her was required, detailing her understanding of her own mental health since the abuse and what connections she had drawn from any possible symptoms of injury arising from the abuse.  Mr Moody gave evidence that he recalled the plaintiff being distressed and upset but agreeable to her affidavit being prepared.  Mr Moody received instructions from the plaintiff to draft the statement and have it served in an attempt to convince the defendant to proceed with alternative dispute resolution to obviate the need for litigation. I accept this evidence.
  2. [77]
    On 17 August 2023, Ms Simpson sent an email to the plaintiff enclosing a list of questions that Moody Law needed her to answer for her affidavit. That list of questions was not put into evidence. The email requested the plaintiff to do her best to answer all the questions, but if she could not answer any or found them hard to answer, she could leave them blank.  Ms Simpson offered that if the plaintiff was struggling with answering any of the questions then she should not hesitate to contact Ms Simpson.
  3. [78]
    On 31 August 2023, Mr Moody deposes that the plaintiff had provided initial instructions with respect to what had been sought on 17 August 2023.  Those initial instructions were not put into evidence by the plaintiff.
  4. [79]
    On 15 February 2024, Moody Law sent a letter to the legal representatives of the defendant with a bundle of documents which included Dr Murray’s report, relevant medical records of the plaintiff, a draft statement of claim, a draft statement of loss and damage, and a draft affidavit of the plaintiff.  The covering email stated, in part:

“We have instructions to proceed with the claim.  Whilst our client is keen to have the matter resolved without the need for litigation, we enclose for your consideration the draft statement of claim, Statement of Loss and Damage and draft Affidavit by our client that supports her application for an extension of the limitation period.

…

We look forward to your earliest response.  As noted, we would be open to any discussions to have the matter resolved prior to the commencement of proceedings.”

  1. [80]
    None of the documents attached to that email were put into evidence.
  2. [81]
    Mr Moody deposed in his affidavit that since receiving Dr Murray’s report on 3 March 2023, he recalled having several conversations with the plaintiff and increasingly thinking that she was struggling immensely with many things in her life, particularly in dealing with some of the questions Moody Law were asking her to answer for the purpose of her affidavit.  He gave evidence that, from this point of time up until the swearing of his affidavit on 5 September 2024, both Ms Simpson and Mr Zhang had shared with him similar concerns about the plaintiff’s mental health.  Mr Moody expressed the belief that this was the reason behind the delay in finalising the plaintiff’s draft affidavit.  Mr Moody then gave evidence that, whilst at various stages during the time that Moody Law had acted for the plaintiff he had been concerned about her mental health, he never considered that the plaintiff had lacked capacity to give Moody Law informed instructions about the matter.
  3. [82]
    In relation to the evidence referred to in the last paragraph, I note that the plaintiff herself did not give any evidence as to her experience or observations of the effect that her psychiatric state of mind was having on her ability to finalise her draft affidavit. Further, no medical evidence was led in support of the proposition that it was the plaintiff’s psychiatric state of mind which was the cause of any delays in the preparation of the draft affidavit. Mr Moody’s, Ms Simpson’s and Mr Zhang’s subjective opinions on this matter are expressed at a high level. They do not identify what exactly was observed by them that supported the opinions expressed. Mr Moody does not identify what it was in the conversations he refers to which supports the opinion expressed. Nor does he identify exactly what was observed or experienced in the day-to-day conduct of the file that underlay the hearsay opinions of Mr Zhang and Ms Simpson.
  4. [83]
    Importantly, Moody Law did not present a clear and detailed chronology of the actions undertaken by each of the plaintiff and Moody Law for the purposes of preparing the draft affidavit between 3 April 2023 and 15 February 2024.  Such a chronology of actions would have allowed the Court to assess what effect the psychiatric state of the plaintiff actually had, if any, on the delay in the drafting of the affidavit.
  5. [84]
    Counsel for the plaintiff had expressly submitted that there had been no delay by the solicitors for the plaintiff in the drafting of the affidavit.[4]  I am not prepared to make such a finding. 
  6. [85]
    In order to have properly considered the making of such a finding, I would have required the detailed chronology of the actions taken by the plaintiff and the solicitors in the relevant period of 3 April 2023 to 15 February 2024. 
  7. [86]
    The limited facts which were disclosed in the evidence do not positively demonstrate that Moody Law have acted diligently and without delay in drafting the plaintiff’s affidavit. The actions of Moody Law also have to be seen in the context of Moody Law’s appreciation that the plaintiff had certain psychiatric conditions which may have meant that she suffered distress at times when talking about events arising from the alleged assault and its effect on her.  A solicitor armed with that knowledge would be expected to take reasonable steps to aid such a client in drafting the affidavit in a timely way. Mr Moody did not give evidence of each step then taken by Moody Law. Ms Simpson gave no evidence in the application. Mr Zhang only commenced his work on the file on 1 March 2024.  Prior to that date, Mr Zhang’s evidence amounted to his giving evidence of a selective group of events and documents, all of which were said to be observable from a review of the file.
  8. [87]
    The high level opinion evidence previously referred to above does not provide a sound basis for the finding sought.
  9. [88]
    I am not prepared to find on the evidence that the delay in preparing the plaintiff’s draft affidavit was caused by the psychiatric state of mind of the plaintiff. The mere fact that at times the plaintiff exhibited distress and had various psychiatric conditions does not prove the finding sought. For much of her life, the plaintiff has been gainfully employed and there is no issue of her capacity to give instructions. The plaintiff exhibited distress at times in the giving of her evidence in cross-examination. That was not surprising, given the subject matter of the cross-examination. Nonetheless, the plaintiff was able to give the evidence.
  10. [89]
    The evidence which was led at trial included that Moody Law originally had a paralegal, a Ms Zhou, handling the file of the plaintiff. Ms Zhou was not admitted as a legal practitioner and in cross-examination was prepared to accept that she may have been handling up to 50 files. Ms Simpson had been a paralegal. The obvious inference from that description was that she also was not admitted as a legal practitioner whilst she was heavily involved in the plaintiff’s file. 
  11. [90]
    The only actual action after 14 July 2023 specifically identified in the affidavit material during the relevant period was the 17 August 2023 email with the list of questions for the plaintiff. A fairly prompt response was received from the plaintiff 14 days later.  Whilst Mr Moody described it as initial instructions on the questions, the nature of the response cannot be determined absent the questions and answers which were both not put into evidence.
  12. [91]
    This limited evidence supports that the plaintiff was, at that time, engaged and willing to assist in the preparation of her draft affidavit.
  13. [92]
    For all the above reasons, the plaintiff has not led evidence which would support a finding consistent with the submission that:
    1. any delay in drafting the affidavit was attributable wholly to the plaintiff; and
    2. that her lawyers caused no delay.
  14. [93]
    On 14 March 2024, the solicitors for the defendant wrote to Moody Law and advised that their client requested that the plaintiff commence proceedings.
  15. [94]
    On 3 April 2024, Moody Law briefed Mr Green of counsel in the matter.
  16. [95]
    On 8 April 2024, court documents, including the originating application for this proceeding and Mr Zhang’s affidavit were provided to Mr Green to settle.  Mr Moody deposes that on the same day, 8 April 2024, the plaintiff instructed Moody Law to commence proceedings in this matter.
  17. [96]
    The plaintiff, in her affidavit of 6 September 2024, deposes to the following occurring on 8 April 2024:

“[62]. On 8 April 2024, I was contacted by telephone by Ms Tham Dao and Mr Eric Zhang, lawyers working for Moody Law. They indicated to me that the Defendant’s legal representatives position was that they would only be willing to engage in further alternative dispute resolution processes after the commencement of legal proceedings. During this telephone conversation, I instructed them to commence legal proceedings in relation to this matter.”

  1. [97]
    On 23 April 2024, the originating application for the extension of time was filed. That was this application.
  2. [98]
    On 31 May 2024, the claim and statement of claim was filed.  That represents the date on which the substantive proceeding for damages arising out of a personal injury was commenced.

Initial way in which the case was conducted

  1. [99]
    The originating application had sought relief pursuant to s 31 of the LAA for an extension of 12 months from 10 April 2023.
  2. [100]
    It can be seen immediately that such an extension of time would still have left the plaintiff’s substantive proceeding statute barred.
  3. [101]
    The initial hearing of this application proceeded in the way summarised in the introduction to these reasons.
  4. [102]
    The two matters which had been identified and relied upon as the material facts of a decisive nature relating to the cause of action were as follows:
  1. The first material fact of a decisive nature was, “that the limitation period was being applied by the defendant as they were entitled to.” This was said to have only been within the plaintiff’s means of knowledge on 3 July 2023 when the defendant’s legal representatives had not agreed to the requested stopping of the clock of the limitation period which had been requested on 20 June 2023.
  2. The second material fact of a decisive nature was “that the alternative dispute resolution process with the putative defendant would not avail in a resolution of her claim.”  This was said to have only been within the plaintiff’s means of knowledge on 8 April 2024 when Moody Law informed her that the defendant required her to start proceedings in order for any further ADR processes to proceed.
  1. [103]
    As counsel for the plaintiff has formally abandoned reliance upon each of those two matters, I will not deal with them any further in these reasons.
  2. [104]
    Accordingly, I will decide this application based upon the third and separate matter raised by the plaintiff on 28 February 2025.

Plaintiff’s third and separate basis for the extension of time

  1. [105]
    The separate matter which the plaintiff now puts forward is one which it ventilated in written submissions. In the primary submissions it was articulated as follows:

“[18]…The question for consideration relates to the period of time that elapsed after receipt of that report. It is respectfully submitted that the requirements of s. 31 LAA have been met when proper regard is had to the terms of s. 30(b) LAA. That is, the Applicant should only be regarded as being obliged to commence her proceedings after considering all of the relevant facts following the explanation of the report of Dr Murray and taking proper advice about matters fundamental to the right thinking of the Applicant in her particular case. The legislation provides for two pre-conditions as to when a material fact will be regarded as within a particular persons knowledge. First, when they are of a view that there is a right of action and secondly, that having taken proper advice, bring such a cause of action. The notion of proper advice is critical to the determination as to when it is that time runs for a particular cause of action. (Footnotes omitted)

…

[30]Then, the legislation specifically identifies when it is that proceedings ought be commenced. It is respectfully submitted that the time relevant to such a determination relates to when that person has “taken the appropriate advice on those facts”. The affidavits refer to a period of time that elapsed between the communication of the advice of Dr Murray and the commencement of proceedings. The material also refers to the difficult psychological issues created for the Applicant by reference to the decision to commence proceedings. In the view of Mr Moody, the Applicant “struggled Immensely” with numerous aspects of her life and particularly those matters pertinent to any affidavit to which she might depose. These concerns developed to the point of a determination by persons of a lay knowledge of mental health but well versed in the notion of how such mental health intersected with legal obligations. It is submitted respectfully, that taking all such matters into account, the proper advice to which the Applicant should have regard, implicitly involves the commencement of proceedings. In this regard, there was no delay from the lawyers and any delay on the part of the Applicant is explicable in terms of the significant personal issues she was dealing with consequent upon the matters raised by the proceedings. It is respectfully submitted that this period of time ought not be regarded as defeating the Applicant’s claim and the relief ought otherwise be granted to her.”

  1. [106]
    The plaintiff’s reply submissions touched upon the separate matter as follows:

“[2]…The Applicant’s understanding in the context of whether such difficulties were in fact causally related to the assault is at the centre of the issues for determination.  Not only does this aspect of the case sought to be advanced by the claimant intersect with the relief sought, but also of the critical faculties that are relied upon for an individual to determine that a cause of action should be commenced and pursued, as required by the LAA.” 

  1. [107]
    In further oral submissions, the plaintiff emphasised that this third matter was one which turned on a finding of fact to be made in accordance with s 30(1)(b) of the LAA. The oral submission was, in effect, that s 30(1)(b) had embedded in it:
    1. the notion of the plaintiff being entitled to receive “appropriate advice”; and
    2. the need for a consideration of the effect of the plaintiff’s psychiatric condition on the decision to commence the substantive proceeding. 
  2. [108]
    It was unclear exactly what date the plaintiff was submitting that the material fact had become “of a decisive character”.  Ultimately, it seems that the plaintiff relied on that being 8 April 2024, when she gave instructions to commence the actual substantive proceeding.

Disposal of the third separate matter

  1. [109]
    I do not accept that the plaintiff, by this third separate matter, has shown that there was a material fact relating to the cause of action of a decisive character which was not within her means of knowledge until the period 12 months prior to the commencement of the substantive proceeding. My reasoning is as follows.
  2. [110]
    First, it is for the plaintiff to identify with specificity:
    1. what it says is the material fact which is relied upon;
    2. when that material fact became of a decisive character; and
    3. when that material fact of a decisive character came within the means of knowledge of the plaintiff.
  3. [111]
    The plaintiff’s articulation of the third matter does not do these things.
  4. [112]
    Secondly, s 30(1)(b) of the LAA operates by way of an actor who is a hypothetical reasonable person who is assumed to have taken “appropriate advice” on the relevant material fact known to the actual plaintiff in question.  The reference to “appropriate advice” as it appears here is not to actual advice received by an individual plaintiff, nor is it a reference to the hypothetical person obtaining advice after the further expiry of some indeterminate period of time. The section is testing whether a material fact is of a decisive character at a particular point in time, namely when the fact is within the means of knowledge of the plaintiff. It does so by assuming the hypothetical reasonable person has had the benefit of “appropriate advice” at that same particular point in time.
  5. [113]
    Thirdly, the evidence establishes that on 3 April 2023, the plaintiff knew and appreciated that there was a direct connection between the alleged assault and the specifically identified psychiatric conditions that Dr Murray listed. The plaintiff knew that Dr Murray had expressed an expert opinion that those psychiatric conditions were almost exclusively caused by the alleged assault. The plaintiff does not point to any other new material fact which she relies on after this date.  Accordingly, for the purpose of s 30(1)(b) of the LAA, 3 April 2023 is the date to ask if those facts, derived from Dr Murray’s report, are material facts of a decisive character.
  6. [114]
    Fourthly, I accept that s 30(1)(b) of the LAA is capable of operating so that a material fact which exists at one point in time, may only become of a decisive character at a later point in time.
  7. [115]
    Fifthly, in this application, the plaintiff did not dispute that the material facts as known by 3 April 2023 would have shown the reasonable person who had taken the appropriate advice at that date, that an action on the right of action would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of such an action. That is, as at 3 April 2023, the reasonable person in that situation would have formed the view required by the condition in s 30(1)(b)(i) of the LAA.
  8. [116]
    Sixthly, what the plaintiff submitted was that the reasonable person taking appropriate advice on the relevant material facts would not have regarded those facts as showing the condition in s 30(1)(b)(ii) had been met as at 3 April 2023. The submission of the plaintiff seemed to be that the reasonable person in that situation would not have regarded that condition as having been shown until some later date within the 12 month period ending on 31 May 2024.  As part of this submission, the plaintiff focussed on the notion of the plaintiff needing to have an opportunity to take “appropriate advice”, and the suggested reluctance of the plaintiff to commence the substantive proceeding due to her distressed state, as being bases for the condition not being shown to have been met.
  9. [117]
    The second condition contained in s 30(1)(b)(ii) of the LAA provides in part:

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

  1. [118]
    The language of s 30(1)(b)(ii) of the LAA does bring “the individual plaintiff’s circumstances” into the hypothetical reasonable person’s consideration for the purposes of determining whether the hypothetical player would form the view that the condition is shown.  This can allow the court to deal with novel situations.  An example of such a novel situation can be seen in the reasons of Davies JA in Bougoure v State of Queensland [2004] QCA 485, particularly at paragraphs [32] and [33], where his Honour was evidently dealing with the operation of s 30(1)(b)(ii) of the LAA in relation to the drug addiction of a police officer who had worked undercover and had still been in the employ of police for a particular relevant period.
  2. [119]
    However, the language of s 30(1)(b)(ii) of the LAA does not convert the reasonable person into a hypothetical individual suffering from the psychiatric conditions of the plaintiff. In NF v State of Queensland [2005] QCA 110, Keane JA had cause to review and largely disapprove of obiter statements made by McGill DCJ in the case of Hopkins v State of Queensland [2004] QDC 21. This disagreement was essentially in the context of an examination of the operation of s 30(1)(c) of the LAA.
  3. [120]
    The relevant obiter remarks of McGill DCJ were as follows:

“…not one which is readily accommodated within the framework of s 31…It is essentially concerned with facts which were in a practical sense not available to the applicant in time.  It is not, it seems to me, concerned with the situation where an applicant who was in possession of the important facts simply did not want to pursue the matter, for whatever reason.  I do not think that the situation is changed by the fact that the desire not to pursue the issue is in a sense caused by the psychiatric injury itself.  There is also a focus on what it was reasonable to do, which directs attention to what an ordinary reasonable person in the position of the applicant would have done, rather than what this applicant would have done, bearing in mind her personal emotional and psychological difficulties.  A ‘reasonable person endowed with the knowledge and experience of the plaintiff’ [Pizer (supra) at [20]] is different from a reasonable person suffering the same psychiatric condition as the plaintiff.”

  1. [121]
    Relevantly, for the purposes of this application, after setting out the obiter statement reproduced above, Keane JA observed in NF v State of Queensland as follows:

“In my respectful opinion, the observation made in the last sentence cited from his Honour’s reasons is correct so far as it goes, but it fails to recognise that s 30(1)(c) is not concerned with what might be expected of a reasonable person; it is concerned with what might reasonably be expected of the applicant in the particular case.  I acknowledge that the view which commended itself to McGill DCJ in Hopkins is not foreclosed by the course of authority, but I consider that the approach of a learned primary judge more closely accords with the text and structure of s 30 of the Act.”

  1. [122]
    Both Williams JA and Holmes J (as her Honour then was) agreed generally with the reasons of Keane JA.
  2. [123]
    The sentence which Keane JA accepted as correct, as far as it went, was evidently an acceptance of its correctness for the operation of s 30(1)(b)(ii) of the LAA.
  3. [124]
    For the purposes of the operation of s 30(1)(b)(ii), the reasonable person endowed with the knowledge and experience of the plaintiff is not to be treated as a reasonable person suffering from the same psychiatric condition as the plaintiff. However, in answering the question posed by s 30(1)(b)(ii) of the LAA, the reasonable person, who has the benefit of appropriate advice, will also take the personal circumstances of the plaintiff into consideration in determining whether the material fact shows that the plaintiff ought, in their own interest, bring an action on the right of action.
  4. [125]
    Seventhly, applying the statutory criteria in s 30(1)(b), I find that as at 3 April 2023, the reasonable person:
    1. having become aware of the expert opinion supporting the direct causal connection between the alleged assault and the identified psychiatric conditions the plaintiff had experienced; and
    2. having had the benefit of appropriate advice; and
    3. having taken into consideration the plaintiff’s circumstances at that time

would have regarded those facts as showing that the plaintiff ought to, in her own interests, have brought an action on the right of action.

  1. [126]
    I have included in the plaintiff’s personal circumstances:
    1. the fact that plaintiff had experienced a number of psychiatric conditions for some time as identified in the report of Dr Murray;
    2. the fact that none of those psychiatric conditions affected the plaintiff’s capacity to give instructions to Moody Law at any material time, which included instructions to commence the substantive proceeding;
    3. the fact that the plaintiff on occasions would exhibit distress when asked to recall details of the assault or aspects of her life which had been adversely affected in consequence of the assault, but the plaintiff had, in fact, completed a statement for Moody Law relating to the alleged assault, well prior to 3 April 2023;
    4. the fact that at or about 3 April 2023, the plaintiff gave instructions for Moody Law to seek to proceed with ADR processes; and
    5. the fact that the plaintiff had a preference to settle the proceeding by ADR processes as opposed to litigation.
  2. [127]
    None of those personal circumstances would have caused the reasonable person to have regarded the facts known on 3 April 2023 as not showing that the plaintiff ought, in her own interests, bring an action on the right of action.
  3. [128]
    At its highest for the plaintiff, the facts as set out in the chronology above show that there was a preference by her to resolve the matter by alternative dispute resolution processes rather than through litigation and that, understandably, her having to do things for the litigation (such as help in the drafting of an affidavit) would cause her some distress at different times. 
  4. [129]
    At a high level the position of the plaintiff is understandable, and indeed for many citizens over a variety of disputes, such a preference for a settlement out of court would be the preferred option.  However, even accepting that the evidence supports that high level preference to settle the matter without the need for litigation, and taking into account the distressing nature of the action for the plaintiff, I find that such personal circumstances are not matters which would have prevented the relevant reasonable person knowing the facts and having taken the appropriate advice from concluding on 3 April 2023 that the plaintiff ought, in her own interest, to bring an action on the right of action. To the contrary, as at 3 April 2023, the facts as known to the reasonable person with the appropriate advice and taking into consideration the plaintiff’s circumstance would have compellingly shown that the condition in s 30(1)(b)(ii) of the LAA was satisfied.
  5. [130]
    That there was then delay in bringing this application, including the preparation of the draft affidavit material, and in commencing the substantive proceeding, is not to the point. Those subsequent events do not change the answer to the question posed by s 30(1)(b), when it looks to a prior point in time, namely 3 April 2023.
  6. [131]
    Eighthly, it needs to be understood that the plaintiff bears the onus of proof in establishing that the material fact discovered on 3 April 2023 did not become of a decisive character until some later date.  The matters outlined above do not achieve this task.
  7. [132]
    The plaintiff gave no evidence that her psychiatric condition somehow precluded her from giving instructions in terms of capacity. Indeed, it was not in dispute between the parties that at all material times the plaintiff had capacity to give instructions.
  8. [133]
    Putting capacity to one side, there was no evidence from the plaintiff of some other impediment to her giving instructions to commence substantive proceedings, for example, because of some reasonably based fear that she may suffer some further or additional injury if she took such a course of action.  There was certainly no medical evidence led to support such a contention. The mere observations that at different times the plaintiff showed distress does not provide evidence of such a contention.
  9. [134]
    The plaintiff was personally silent in her evidence as to her thought processes and feelings between 3 April 2023 where she gave instructions to proceed with ADR processes and 8 April 2024, where she gave instructions for the substantive proceeding to be commenced.
  10. [135]
    The failure of the plaintiff to explain her thought processes during this period is, with respect, detrimental to the type of fact-finding which the plaintiff has sought the Court to make.
  11. [136]
    The plaintiff has not proved on the balance of probability that there was something in her personal circumstances of such a compelling nature so as to cause a reasonable person taking appropriate advice to have concluded as at 3 April 2023 that the material facts[5] did not show that the plaintiff ought, in her own interest, to bring an action to the right of action.
  12. [137]
    I find that by 3 April 2023, there was a critical mass of material facts relating to the plaintiff’s right of action known to the plaintiff such that a reasonable person knowing those facts and having taken the appropriate advice on those facts, would have regarded those facts as showing each of the conditions set out in ss 30(1)(b)(i) and (ii) of the LAA.
  13. [138]
    I find that the plaintiff has not discharged her onus, which required her to prove that there was a material fact relating to a right of action which only became of a decisive character in the 12 months up to and including 31 May 2024.

Resolution of the application

  1. [139]
    In consequence of the findings made above, the plaintiff has not satisfied the Court that a material fact of a decisive character relating to the right of action only came within the plaintiff’s means of knowledge within the 12 month period from and including 31 May 2023.
  2. [140]
    The real issue as identified by the parties is answered in the negative.
  3. [141]
    Both parties agreed that in that circumstance, this application ought to be dismissed.
  4. [142]
    Accordingly, I will dismiss the originating application.
  5. [143]
    Both parties have informed me that in consequence of the dismissal of this application, the substantive proceeding ought to be dismissed as well.
  6. [144]
    I will make that separate dismissal order in the substantive proceeding.
  7. [145]
    I will hear the parties on costs of the application and of the substantive proceeding.

Footnotes

[1]  (1984) 154 CLR 234 at 256.

[2]  Quoted by Thomas JA with approval in Dick v University of Queensland [2000] 2 Qd R 476 at [26].

[3] Castillon v P&O Ports Limited (No. 2) [2008] 2 Qd R 219 at [34].

[4]  Plaintiff’s primary written submissions at paragraph [30].

[5]  Being her knowledge of Dr Murray’s opinion on the causation link and the psychiatric conditions which causally flowed.

Close

Editorial Notes

  • Published Case Name:

    AZX v The Roman Catholic Trust Corporation for the Diocese of Townsville

  • Shortened Case Name:

    AZX v Roman Catholic Trust Corporation for the Diocese of Townsville

  • MNC:

    [2025] QSC 59

  • Court:

    QSC

  • Judge(s):

    Sullivan J

  • Date:

    03 Apr 2025

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
BEK v BEL [2024] QCA 154
2 citations
Jump To
Cite 1 - [2024] QCA 154
Cite 2 - [2024] QCA 154
Berg v Kruger Enterprises (Division of Besser Qld Ltd) Ltd[1990] 2 Qd R 301; [1989] QSCFC 34
3 citations
Jump To
Cite 1 - [1990] 2 Qd R 301
Cite 2 - [1990] 2 Qd R 301
Cite 3 - [1990] 2 Qd R 301
Bougoure v State of Queensland [2004] QCA 485
2 citations
Jump To
Cite 1 - [2004] QCA 485
Cite 2 - [2004] QCA 485
Carmo v Ford Excavations Pty Ltd (1984) 154 C.L.R 234
4 citations
Jump To
Cite 1 - (1984) 154 C.L.R 234
Cite 2 - (1984) 154 C.L.R 234
Cite 3 - (1984) 154 C.L.R 234
Cite 4 - (1984) 154 C.L.R 234
Castillon v P&O Ports Ltd[2008] 2 Qd R 219; [2007] QCA 364
3 citations
Jump To
Cite 1 - [2008] 2 Qd R 219
Cite 2 - [2008] 2 Qd R 219
Cite 3 - [2008] 2 Qd R 219
Central Asbestos Co Ltd v Dodd (1973) AC 518
1 citation
Jump To
Cite 1 - (1973) AC 518
China v Harrow Urban District Council [1953] 2 All E.R. 1296
1 citation
Jump To
Cite 1 - [1953] 2 All E.R. 1296
Cooke v Gill (1873) L.R. 8 C.P. 107
1 citation
Jump To
Cite 1 - (1873) L.R. 8 C.P. 107
Ex parte Bolewski [1981] Qd R 54
3 citations
Jump To
Cite 1 - [1981] Qd R 54
Cite 2 - [1981] Qd R 54
Cite 3 - [1981] Qd R 54
Hopkins v State of Queensland [2004] QDC 21
2 citations
Jump To
Cite 1 - [2004] QDC 21
Cite 2 - [2004] QDC 21
Jones v Central Queensland Hospital and Health Service [2024] QSC 165
1 citation
Jump To
Cite 1 - [2024] QSC 165
McIntyre v Armitage Shanks Ltd [1980] SLT 112
1 citation
Jump To
Cite 1 - [1980] SLT 112
NF v State of Queensland [2005] QCA 110
2 citations
Jump To
Cite 1 - [2005] QCA 110
Cite 2 - [2005] QCA 110
re Hawke (decd) Hawke v Public Trustee [1957] NZLR 152
1 citation
Jump To
Cite 1 - [1957] NZLR 152
Re Sihvola [1979] Qd R 458
2 citations
Jump To
Cite 1 - [1979] Qd R 458
Cite 2 - [1979] Qd R 458
State of Queensland v Stephenson (2006) 226 CLR 197
2 citations
Jump To
Cite 1 - (2006) 226 CLR 197
Cite 2 - (2006) 226 CLR 197
University of Queensland v Dick[2000] 2 Qd R 476; [1999] QCA 474
2 citations
Jump To
Cite 1 - [2000] 2 Qd R 476
Cite 2 - [2000] 2 Qd R 476

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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