The President and White JA concurred with the reasoning of McMeekin J to dismiss the appeal by the State of Queensland.
The principal issue on appeal was whether the primary judge had erred in finding the plaintiff’s disability of mind (sections 5(2) and 29 of the Limitations of Actions Act 1974 (Qld)) was continuous in accepting the evidence of Professor James.
The facts involved allegations the respondent/plaintiff was sexually abused by her step father from the age of 10 and had developed a mental disorder, but it was not until the criminal trial against her step father by her sister (Feb 2005) that it became known the Department had records of knowledge of the offending behaviour, but had not referred it for police intervention. It was common ground she turned 18 on 5 June 1980 (now 48 years of age).
The secondary ground of appeal was whether s.31 of the Act was satisfied (material fact of a decisive nature of the relevant sense) with respect to the discovery of information from the Department.
The appellant contended that the mental disability was not continuous:
This was against a background, so the appellant urged, that the respondent had apparently functioned more or less normally in other respects. The appellant’s counsel attempted to summarise the appellant’s view of the evidence in a question to Professor James. It was suggested that the respondent had since the age of 15,
“obtained a drivers licence by having to sit a test, has obtained employment by applying, meeting people, has maintained that employment in a deli in Coles where she dealt with members of the public, accepted their orders, she has maintained two long relationships with men, she has on occasions lived on her own, she has rented premises and she says paid all her bills, she’s taken out a bank account, which she’s maintained. She’s applied for and received family allowance, she’s obtained a drivers licence, has driven a motor vehicle, has raised five children, taken them to school….”3
The question tends to overstate the respondent’s functioning and minimise the assistance that she received along the way, but nonetheless sets out a reasonable summary of her functioning generally for the purposes of the question.
3 AR 50/50 – 51/4.
Before turning to that evidence I note that Professor James went to some trouble to explain that the disorder he diagnosed was considered to be a “mental disorder” in the standard texts in his field of psychiatry and was not described as a “mental illness”, as that latter term was no longer used. He was plainly concerned at the use of the descriptor “mental illness” in the judgments in King and Flemming, with which he had been provided. The use of the phrase “mental illness” in these cases was not intended as a term of art as it may be in psychiatry. It is meant in the more general sense as connoting an abnormality of the mind. And I see no reason why the word “mind” should not be taken to mean the mind in all its aspects – including the ability to form a rational judgment and to act upon any such judgment so formed.9 Professor James drew attention to the definition of “mental illness” in the Mental Health Act 2000 (Qld) as “a condition characterised by a clinically significant disturbance of thought, mood, perception or memory”. He considered that the disorder that he diagnosed as present in the respondent would satisfy that test and he opined that it would come within psychiatry’s present view, not perhaps held in past decades, of what constitutes “mental illness”.10
9 Cf. Kotulski v Attard  1 NSWLR 115 at 118 per Slattery J, his views being cited with approval in Olive v Johnstone  NSWCA 21 at  and in New South Wales v Harlum  NSWCA 120 at .
10 AR 278-279.
The appellant’s submission overlooks the true difficulty that the condition presents for the respondent. It is not that she cannot understand what has been done to her, nor that she did not appreciate the wrong that it constituted. Her difficulty, brought about by the personality disorder diagnosed, is that she cannot pursue matters relevant to her interests, at least in regard to this claim for damages for the sexual abuse that she had suffered. Professor James pointed out in his report that the disorder that he had diagnosed caused the respondent “deprivation of the capacity to perceive, interpret and respond to situations as would the normal reasonable person”.16 He summarised his views as follows:
“Bearing all the above in mind, therefore, it is my opinion that [the respondent] should be considered as being of Unsound Mind for the purposes of the Limitations of Actions Act 1974 since at least from the age of sixteen. The repeated fragmentation and disruption of her sense of Self; the emergence periodically of symptoms of Major Depressive Disorder and of Psychosis; and the symptomatic abuse of potentially addictive substances; all combined with her pervasive and enduring sense of distrust of authority, would, in my opinion, have made it impossible for [the respondent] to formulate, sustain, and pursue effectively any course of action with respect to the claim of compensation.”17
16 AR 281.
17 AR 282.
It is not to the point to argue that the respondent can do some of the normal things in life, nor that she managed to complain to the police about her step father. The issue is whether Professor James resiled from the view, expressed in his report, that it was impossible for the respondent “to formulate, sustain, and pursue effectively any course of action with respect to the claim of compensation”.
When one considers the evidence that followed on the answer that the appellant seeks to stress, it is quite evident that Professor James considered that the episode of reporting the matter to the police did not evidence any significant alteration of the respondent’s condition, but rather at the most, a transient amelioration, and not one giving rise to an ability to effectively pursue her interests:
“So if there are other incidents where she has dealt with authority, so if she has gone and obtained a driver’s licence after being stopped by the police because she was driving on a learner’s permit, would you say at that time she wasn’t suffering from an unsoundness of mind?– Well, again, vulnerabilities, which include delusions, not that I think she actually had delusions, but people with unsoundness of mind frequently do, can be very, very circumscribed, and they can perform well in – outside those very, very circumscribed areas, and I think that’s true of [the respondent], that there were certain issues which – with which she could approach authority with relative trust but not others.
Mmm. But certainly approaching the authorities like on her own about [the step father’s] abuse would put her into the position where she was no longer suffering—–?-Y-e ah.
– – – – for that period?– Yes. I – I – I would like to add one word here which I think is important to convey, and that word is “transience”.
Mmm?– That this is one of the keystones of the condition and that – that a person may be, for a very short time, be able to do it or in a very tentative way, exploratory way, but not in any definitive, continuous and effective fashion.
Mmm. But that’s speculation on your part, isn’t it, Doctor?– It’s not speculation. I spent 40 years examining people of this kind.
Mmm. Yes. But you can’t say, can you, that in that 30 year period during those instances where [the respondent] rose above her personality disorder that she wasn’t then of sound mind?—I would say it was – in the appropriate meaning of the word very unlikely.
Mmm. Except for that period where she approached the police?– Yeah. There may have been moments of transience when she could do that but as I say, it is likely at those early stages that these would have been tentative and exploratory approaches.”18 (underlining added)
In my view the finding expressed by the learned primary judge that Professor James had adhered to his opinions was correct.
It is worth noting that the aspect of the respondent’s condition that Professor James emphasised – the ability to “sustain, and pursue effectively” her potential cause of action – has been recognised as significant in other jurisdictions in cases involving consideration of this question of a mental disability preventing the running of the limitations statute. In Saunders and Anor v Jackson,19 Hoeben J (with the agreement of Ipp and Macfarlan JJA) said in reference to a complaint of sexual abuse in a family context:
“ It would take a person of exceptional robustness and strength of character to pursue such a claim in the civil courts even if that person were not suffering from an impairment of her mental condition. Her Honour recognized that fact in her judgment and Beazley JA referred to its significance in Harlum:20
“94 The State’s approach also fails to deal with another of the other fundamental aspects of bringing a claim, namely that it requires the exercise of willpower to initiate the claim: see Kotulski at 118. In this regard, I consider that it is important to understand that it is not only a question of having the willpower to engage in the task of commencing proceedings. Such an approach takes a far too simplistic view of what is involved in the commencement of an action. In making a decision to commence an action, the person is also making a decision to continue with the claim.
95 Even if a person is able to fulfil each of the requirements contained in the State’s approach, including the making of a decision to instruct a lawyer and to provide instructions, the person may not have the willpower to engage in all that is required to commence an action because of that person’s mental condition.”
19  NSWCA 192.
20 New South Wales v Harlum  NSWCA 120.
In my view there was ample evidence on which the finding by the primary judge of a disabling “unsoundness of mind” could be based. With respect, I detect no error in the primary judge’s approach.
The Extension of the Limitation Period
In order to succeed on an application to have the limitation period extended the applicant must show that “a material fact of a decisive character relating to the right of action was not within [her] means of knowledge” until a date after, in this case, 12 February 2006: s 31(2)(a) of the Act. There must be evidence to establish the right of action: s 31(2)(b) of the Act. Those two matters being shown there arises a discretion to extend the limitation period for 12 months from the time the material fact was within the applicant’s means of knowledge. Normally that discretion would be exercised in favour of the application unless there was relevant prejudice to the respondents.21 The onus lies on the applicant throughout.
The material fact relied on was that the respondent was unaware that there existed evidence in the Departmental records that her step father had admitted to the conduct of which she complained. Further, she was unaware that there was a record of the response of the Department to her complaint and to his admissions. That record showed that there had been no referral of the matter to the police for the prosecution of the step father’s grossly criminal conduct towards her, but rather an arrangement was entered into that the step father be permitted to remain in the home with her on his undertaking to seek psychiatric treatment from a named specialist. The records suggest that there was no monitoring of the situation or attempt to ascertain whether her welfare was in fact protected by the arrangement entered into.
It was not contended that there was not evidence to establish the right of action. Nor was prejudice argued for.
The principal issue on the appeal was whether the newly discovered facts had the necessary quality of decisiveness. Section 30(1)(b) of the Act provides:
“(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—
(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
(ii) that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action…”
Lack of evidence supporting the intended case can amount to a material fact of a decisive character. The principle was explained by Connolly J (with whom Shepherdson J agreed) in Sugden v Crawford,22 where after referring to the two conditions set out in s 30(1)(b) of the Act, his Honour said:
“The basic assumption of the scheme is that if both those conditions were already satisfied without the new evidence, its discovery will not warrant an extension of time. It follows that an order will be justified where there is such an enhancement of the prospect of success as, for example, would suffice to raise it from a possibility to a real likelihood. Thus a prima facie case of actionable negligence may already exist but it may well seem to the applicant’s legal advisers to be, on balance, too risky until the newly discovered fact emerges.”
The difficulties inherent in conducting a case of this type are manifest. The respondent was a child at the time of the offending conduct and at the time of the complaint to the Department. Many years had passed since her complaint. From the respondent’s perspective her complaint had been ignored. It would seem that the respondent’s mother was angry with her for making the complaint and might well not have supported her in her complaints. There was the prospect that Departmental records had been lost and the relevant officer to whom the complaint had been made no longer alive or of no assistance in establishing what had occurred. And it was unknown what the departmental position might be.
To succeed in her claim it was necessary for the respondent to persuade a court that the Departmental officers had such evidence available to them as made it incumbent on them to act. Further, she had to show that whatever action they took was not reasonable in the light of that evidence. Her mere assertion that she had complained was not sufficient to establish good grounds for a claim. For all that the respondent knew, the Departmental officers had other evidence which they reasonably believed did not support her complaints and which may have justified the Department’s stance.
The evidence known to the respondent before the disclosure of the Departmental records was summarised by her solicitor as follows:
“7. The following is information that was provided and advised to Mr Dempsey by the Applicant on or around the 10 November 2005:
That some 30 years ago she was sexually assaulted by her Stepfather;
The Applicant complained about the abuse to the Department of Children’s Services, but was unaware at the time what action, if any, was to be taken by the Department at the time;
Even after the Applicant told the Department about the sexual abuse, the Applicant was left in the household and the sexual abuse continued for a number of years whilst the Applicant was forced to remain living at home;
The Applicant has suffered severe psychological injuries as a result of the abuse and has subsequently attempted to commit suicide. The Applicant has also been admitted to the Bundaberg Community Mental Health Unit;
The Applicant was involved in Court proceedings and was required to attend Court in her sister’s action against the stepfather for the same treatment. It was at this time that the Applicant was told that there was a document depicting a statement by a Mr. John Johnson stating that the Department of Children’s Services were aware of the abuse, but did not make any attempt to take any action; and
The Applicant did not see any of these documents at that time.”
To adapt the observation of Connolly J in Sugden the question is whether, given the evidence that the respondent already had in her possession, the respondent “ought, in [her] own interests taking [her] circumstances into account, hazard the risks of litigation and the time and expense involved”.23 There can be no doubt that the discovery of the Departmental records materially strengthened the respondent’s case against the Department. In my view, until the appellant disclosed its records to her, the respondent did not have the necessary evidence to be sufficiently confident of success. In my view a reasonable person, absent that information, could have justifiably considered that the litigation was too risky to hazard, and with that additional information, determine that the risks were significantly ameliorated such that it was now in her interests to proceed.
It was common ground that that disclosure occurred after the critical date. So, the records were not within the respondent’s actual knowledge. The appellant nonetheless argued that the information was within her means of knowledge before the critical date.
Section 30(1)(c) is relevant. It provides:
“(c) a fact is not within the means of knowledge of a person at a particular time if, but only if—
(i) the person does not know the fact at that time; and
(ii) as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.
As his Honour, with respect, correctly recognised, the test of whether reasonable steps have been taken as required in s 30(1)(c)(ii) depends on “what can reasonably be expected from the actual person in the circumstances of the applicant” for the extension, as explained in NF v State of Queensland.24
The appellant’s point was that the respondent had been told before the critical date that records existed within the Department relating to her complaint and that therefore the need to pursue those records was self evident and, if that had been done, as was reasonably required, the claimed material facts would have been discovered before the critical date.
The difficulty with the submission is that it takes no account of the existence of the disorder spoken of by Professor James, nor of the limited information that the respondent had. Here the premise is that the condition that the respondent had was not disabling in the sense of amounting to unsoundness of mind but was nonetheless present.
As to the information she had, it is far from clear what it is that she was told about the records that were extant and how authoritative the source was. Her affidavit reads: “In early 2005, I was told that the Department of Children’s Services may have been aware of the abuse but did nothing about it. I was told this when I attended Court for my sister’s case…”25 Added to that is her statement in evidence that, “When we took [the step father] to Court, that’s when I found out about what Family Services had admitted to…”.26
Assuming that a reasonable person was, by reason of the receipt of that information, thereby obliged to make further enquiries to establish the precise nature of the evidence held by the Department, the issue is whether it was reasonable for this applicant to have done so. Whether or not her condition amounted to “unsoundness of mind”, it certainly severely restricted her capacity to form rational decisions and act upon them.
The primary judge concluded that “[g]iven her psychiatric condition and her stated knowledge she could not reasonably have been expected to seek legal advice or pursue an action before she did.”27 There was no error of fact disclosed in his Honour’s reasons or any misunderstanding of the principles involved.
It needs to be borne in mind that such findings by primary judges are not to be too readily interfered with. As Thomas JA observed in the context of questions involving degrees of injury and extensions of the limitation period:
“Although the eventual decision is discretionary the determination of these issues is not. They involve findings of fact and a determination whether those facts satisfy the requirements of the statute. It is worth mentioning however that such findings and determinations are made in an area where different minds might reasonably reach different conclusions. In such a situation the appeal court is not free to decide the question according to its own preference. Unless the judgment reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference.”28 (footnotes omitted)
In my view those comments apply with equal force here. I agree with the primary judge’s conclusion, but, even if I did not, I cannot see any basis for interference on appeal.
In my view the learned primary judge was right to allow the extension of the limitation period.
21 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 per Dawson J; at 555 per McHugh J.
22  1 Qd R 683 at 686. See also Pikrt v Hagemeyer Brands Australia Pty Ltd  QCA 112 at  per McMurdo J.
23  1 Qd R 683 at 686.
24  QCA 110 at  per Keane JA.
25 AR 336 at .
26 AR 31/59.
Brisbane Barrister – David Cormack