MCA v State of Queensland [2011] QSC 298

The applicant sought an extension of the limitation period in which to bring a personal injuries action for sexual abuse pursuant to s 31 of the Limitation of Actions Act 1974 (Qld). The critical issue was whether a “fair” could be conducted as against the respondent (not the offender) considering the time which had elapsed since the events the subject of the sexual abuse had taken place.

The abuse was alleged to have occurred at Serviceton State School by one of the teachers at this school, between 1982 and 1985, namely Alain Francois (“Francois”). Francois was subsequently charged with a number of offences and on 13 December 1985, he was found guilty of indecent dealing and sentenced to 18 months imprisonment.

The claim was however, against the State of Queensland and their knowledge as the employer of Francois as a teacher, not only at this school, but other schools:

[31] Other material before me indicates the plaintiff’s allegations concerning Francois were the subject of detailed investigations in 1985, ultimately resulting in a successful criminal prosecution of Francois for sexual offences against the plaintiff. As a result, substantial evidence in relation to those offences is available.

[32] Whilst the plaintiff submits the availability of that material means there can be a fair trial as to events concerning Francois’s sexual misconduct, the central issues in these proceedings are materially different to the issues in the criminal proceedings. The central issue in dispute in these proceedings is not Francois’ sexual misconduct. It is the defendant’s alleged negligence as framed by the particulars of negligence. Those particulars rely on failures by the defendant to properly supervise Francois and take other actions in circumstances where the defendant had prior notice of allegations of sexual misconduct by Francois.

Boddice J considered this issue at length and the inquiries made by the respondent to the application to investigate the allegations and concluded as to “fairness”:

[34] The combined loss of relevant documentation and witnesses means there is a “significant possibility”[21] the defendant will be unable to lead any evidence as to the level of supervision provided in respect of Francois following the allegations at Ayr State School, or as to the frequency of reviews or other steps taken by it to monitor any inappropriate behaviour by Francois towards students, including ensuring that Francois did not meet with students outside of school. Any trial would involve invitations for witnesses to reconstruct their recollections, or to surmise. Such a trial would not be fair to either party.

[35] The loss of documentation and relevant witnesses places the defendant in a grossly unfair position in seeking to defend the allegations of negligence. This disadvantage is particularly significant where the plaintiff’s allegations of sexual misconduct related both to activities at Serviceton, and outside the school, but the jury only returned verdicts of guilty in respect of conduct outside the school. Verdicts of not guilty were returned in respect of each count alleging sexual conduct on the school premises.

[36] Whilst the plaintiff’s claim does not have as its focus a central conversation, as in HWC, the observations of Keane JA in Page v The Central Queensland University,[22] are apposite to the present case:

“The appellant’s case puts in issue the process of scrutiny and evaluation of his application by officers of the respondent. This process occurred 15 years ago. The appellant’s case will inevitably involve, to some considerable extent, oral evidence of discussions involving the respondent’s officers and other persons, including the appellant. The learned primary judge was entitled to conclude, by reason of these circumstances alone, that the prospects of a fair trial of the appellant’s case lay in the realm of pious hope rather than reasonable expectation. While it is true to say that the court will be reluctant to deny a litigant with an arguable case the opportunity for a fair trial … it must be emphasised that the opportunity in question is the opportunity for a fair trial. The court is not in the business of preserving the opportunity to conduct solemn farces in which parties and witnesses are invited to attempt to reconstruct recollections which have long since disappeared. Such a trial would not be fair for either party.”

[37] I am satisfied a trial of the plaintiff’s allegations of negligence against the defendant would not be a fair trial. That Mr Schultz has a clear recollection of the complaints against Francois at Ayr State School, does not address the crucial issues in dispute which are what steps the defendant took, subsequent to Ayr State School, to properly supervise Francois and to ensure that any inappropriate behaviour by him towards students was identified and addressed so as to ensure the safety of students. Like HWC,[23] it is what is not available that is important, not what is available.

[38] In the exercise of my discretion, I decline to grant the plaintiff the requested extension of the limitation period.

Brisbane Barrister – David Cormack



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