BEK v BEL

This matter concerned an appeal against a decision to allow an extension of time in relation to a claim for damages for trespass where the limitation period had expired. At first instance the application to extend time for the making of the claim had been granted and the appellant sought to appeal that decision. In the course of considering and determining the appeal, the Court was required to consider firstly whether the pleas of guilty entered by the appellant were material facts and, secondly, whether they were material facts of a decisive character. Brown J, with whom Morrison JA agreed, found that the primary judge had not erred in determining that the pleas of guilty were material facts of a decisive character, notwithstanding the respondent was the victim of the sexual assault by the appellant in 2001 and knew of the material facts that constituted the cause of action in battery, as a result of being the victim, from the time of the acts in 2001.

Morrison, Dalton JJA, Brown J

27 August 2024

The appellant and respondent met in 1996 and were married in 1999. The appellant was violent towards his wife. In 2001, she was hospitalised to undergo surgery for a condition that she has lived with since birth. On three different occasions, the appellant raped her in a public toilet at the hospital during that hospitalisation. The respondent made a preliminary complaint in 2016. In 2017 she went to the police. The appellant pleaded guilty to three counts of rape on indictment in 2021. [3].

In 2022 the respondent signed a notice of claim under the Personal Injuries Proceedings Act 2002. She was granted leave pursuant to s43 of that Act to commence court proceedings, which were stayed pending compliance with Ch 2, Part 1 of the Act. In September 2022 the respondent filed a claim and statement of claim in the District Court, and in March 2023 brought an application to extend time for making that claim pursuant to s31(2) Limitations of Actions Act 1974. The primary judge granted that application. The appellant appealed that decision. [4].

On appeal the appellant was given leave to “reframe the appeal such that the question of whether pleas of guilty of the appellant constituted a material fact under s 30 LAA became an issue in this appeal.” [22].

It was not contentious, given the respondent was the victim of sexual assaults by her husband, that she respondent knew from November 2001 all of the material facts constituting a right of action in tort for battery. [27].

The respondent made an application for financial assistance with Victims Assist Queensland under the Victims of Crime Assistance Act 2009 (Qld) in 2017 and 2018 for which she received some payments.

[28].

The respondent provided a statement and several addendum statements to the police between 2017 and 2020. In October 2019, a pre-text call took place between the respondent and the appellant, during which he is said to have made some admissions in relation to the sexual assault (“pretext call”). However, the recording was inaudible in parts, such that the police informed the respondent that the recording had failed. The respondent subsequently attended the police station in April 2020 to provide an addendum statement setting out her recollection of what was said during the call, which included the apparent partial admissions. During the phone call, when the respondent asked the appellant about the three times he raped her in hospital, the respondent recalled the appellant answered “Yes I know what I did and how long do I have to pay for this?” However, the respondent’s statement contained a number of gaps in recounting what occurred, as the respondent could not recall all the responses that the appellant made in the conversation. [29].

On 18 February 2020, the appellant engaged in a police interview. [30]. According to the police, the appellant had also made various admissions to them, including: “it might have been … it was unconsensual sex I believe on two occasions” and further, “I’m gonna say I’m sorry, guilty … I’m guilty here”. [31]. On 18 May 2021, the police told the respondent that they believed the appellant would plead guilty to the charges. [33]. Although, the appellant did not enter a plea of guilty in respect to the charges of rape until 6 September 2021. [36].

The Legislation

Section 11 Limitations of Actions Act 1974 (“LAA”) required the respondent to bring a cause of action within three years of the cause of action arising. [39]. However, s31(2) LAA empowers the court to extend the period of limitation for an action in damages for trespass where it appears to the court:

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

Further, s 30 LAA defines facts which are “material facts relating to a right of action”, when “material facts relating to a right of action are of a decisive character” and what constitutes “a fact … within the means of knowledge of a person”.

Brown J noted that the appeal raised two issues for the Court’s consideration:

(1)first, whether his Honour erred in finding that the plea of guilty constitutes was a material fact; and

(2)secondly, accepting the plea of guilty was a material fact, whether his Honour erred in finding that it was a material fact of a decisive character. [23].

Material Fact – Findings of the primary judge

The primary judge was satisfied that the appellant’s pleas of guilty and admissions made during the pre-text call were material facts for the purposes of s31(2) LAA. [43]–[44]. However, he found neither were of a decisive character. As to the police’s belief that the appellant would plead guilty which was relayed to the respondent, his Honour found it was not a material fact because it did not assist in the proof of the respondent’s claim and was meaningless until guilty pleas were formally entered. [44].

Were the pleas of guilty a material fact?

Her Honour observed that the authorities in Queensland 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. [55]-[59], [61]-[75].

Her Honour explained “the use of the term ‘includes’ in the definition of ‘material fact’ in s 30(1)(a) demonstrates that it is a inclusive definition. It is also broadened by the use of the words ‘relating to’. Similarly, the categories (1)(a)(i)-(v) are not limited to the elements of the cause of action. These features support the view that ‘material fact’ is not confined to the bare elements of a cause of action.” [60].

Justice Brown, with whom Morrison J agreed, found that the primary judge had not erred in determining that the pleas of guilty were “an admission by the [appellant] of the acts the subject of the [respondent’s] right of trespass and admissible as proof of the respondent’s cause of action and a material fact for the purposes of s 30(1)(a) LAA.” [80].

However, the next issue for determination was whether it was a material fact of a decisive character.

Were the pleas of guilty a material fact of a decisive character?

The primary judge found that the pleas of guilty materially improved the respondent’s prospects of success in her action for trespass as they could be relied upon as admissions for the sexual assaults, the subject of the claim for trespass, and go a long way to proving the occurrence of the events on which the actions is founded. [82].

The appellant contended that his Honour erred in not looking at the critical mass of facts and determining whether that combination of facts together with the respondent’s own knowledge was decisive. [83]. The pleas of guilty, according to the appellant, strengthened the respondent’s position but it was not a material fact of a decisive character. [84].

Acknowledging that the circumstances of the present case were unusual because the respondent knew the necessary facts to prove the action of battery, Brown J held that “does not exclude the contention that a material fact of a decisive character relating to the right of action did not come within the respondent’s means of knowledge until the time prescribed in s31(1) LAA.” [90]–[91].

Brown J affirmed the decision of Connolly J in Sugden v Crawford [1989] 1 Qd R 683, 685 to the effect that “whether the material fact is of a decisive character, must be tested by reference to facts already known.” [92]. Brown J explained that the question for the primary judge was whether “the applicant (now respondent) had sufficient material facts within her knowledge to make the litigation worthwhile.” [93]. In considering the assessment of the material facts made by the primary judge, her Honour found that, “given the incomplete nature of the recording and the respondent’s recollection of the conversation” there was no error in the primary judge’s conclusion that the admissions made by the appellant in the pretext call were not of a decisive character. [100]. Further, she found no error in the conclusion that the partial admissions made by the appellant during the police interview were not material facts of a decisive character, noting that “the respondent only knew what had been relayed to her on a piecemeal basis by the police” which was reasonable since the criminal proceedings were still on foot and the respondent would have been called as a witness had the matter proceeded to trial. [102].

Brown J explained that “the critical question was whether it was not until the plea of guilty and conviction for rapes was entered that, in the words of Macrossan J in Moriarty v Sunbeam Corp Ltd, she ‘would not, even with the benefit of appropriate advice, have previously appreciated that [she] had a worthwhile action to pursue and should in [her] own interests pursue it’.” [108]. Her Honour reframed the question as “was it only when the appellant pleaded guilty that the respondent’s prospects of success were elevated to a level that a reasonable person appropriately advised would have regarded the action as having reasonable prospects of success, given the admissions and consequential conviction was proof of the intentional acts which constituted battery, or was there a critical mass of facts within the respondent’s means of knowledge prior to that point which would have led a reasonable person, appropriately advised, to regard the prospects of success as sufficient to justify bringing an action.” [109]. In her Honour’s view found that the litigation would have been too risky to proceed on the basis of the evidence of the respondent alone given the costs of litigation.[112].

The pleas of guilty were admissions and the conviction enabled the respondent to have the benefit of s79 Evidence Act 1977, which permits a conviction to be admissible in evidence for the purpose of proving that the person committed that offence in a civil proceeding. The pleas of guilty to the charges of rape were a material fact of a decisive character given they:

(1)provided independent proof of the acts constituting battery perpetrated by the appellant;

(2)were corroborative of the facts known by the respondent herself;

(3)ameliorated the risks of it being a word against word case; and

(4)increased the prospects of success of the action to make the bringing of proceedings worthwhile.

Disposition

In the result, it was held that the primary judge did not err in determining that the plea of guilty was a material fact of a decisive character. [114].

K Mythen of Counsel