A v B [2000] NSWCA 220

New South Wales Court of Appeal

CITATION : A v B [2000] NSWCA 220 FILE NUMBER(S) : CA 40359/99 HEARING DATE(S) : 19 July 2000 JUDGMENT DATE : 19 July 2000

PARTIES : A v B JUDGMENT OF : Mason P at 1; Sheller JA at 16; Foster AJA at 17

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CL 20839/97 FILE NUMBER(S) : LOWER COURT Adams J JUDICIAL OFFICER :

COUNSEL : Appellant: C A Evatt; M K Rollinson Respondent: P LeG Brereton SC SOLICITORS : Appellant: Carters, The Law Firm Respondent: McDonell Milne & Toltz CATCHWORDS : Appeal - application to extend time - new hearing ordered in appeal from Master to single judge - fresh evidence - whether appropriate to direct that matter be determined by different Master. ND DECISION : Appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40359/99

MASON P SHELLER JA FOSTER AJA

Wednesday 19 July 2000

A v B

JUDGMENT 1 MASON P: On 11 September 1997 the appellant filed in the Supreme Court a statement of claim, claiming damages for sexual assault by the respondent, her father. The alleged events occurred between 1974 and 1988. The claim was obviously statute-barred unless an order were made extending time. 2 Accompanying the statement of claim was a notice of motion seeking the extension of time. It was supported by affidavits of the appellant and a medical practitioner (not Dr Stanley). 3 The notice of motion was heard by Master Harrison in late 1997. There was cross-examination and a robust challenge to the appellant's credibility. On 24 February 1998 the Master held that the appellant had established that she was unaware of the nature or extent of personal injury she had suffered within s60I(1)(a)(ii) of the Limitation Act 1969. The Master was also satisfied on the facts that it was just and reasonable to extend the limitation period. These conclusions turned upon detailed findings touching the appellant's credibility as to the circumstances in which she knew of the matters alleged and their psychiatric impact upon her. 4 The respondent appealed. The appeal, which was by way of rehearing was heard by Adams J. His Honour held that no appealable error had been demonstrated in the reasons of the learned Master. 5 Fresh evidence was tendered in the appeal before Adams J. It included evidence as to consultations between the appellant and a psychiatrist, Dr Stanley, since 1990 and evidence given by the appellant in committal proceedings in April 1998, ie after the proceedings before the Master. This new and/or fresh evidence was said to be capable of showing that the appellant knew the extent of her psychological damage before 1995. 6 In ex tempore reasons given after hearing argument on 6 May 1999, Adams J said (in par 19) that amongst the material considerations was whether the further evidence was available on reasonable enquiry by the defendant or those acting on his behalf at the hearing before the Master. He said that he was satisfied that whilst in some respects it was, it was of such a character as to lead him to conclude that the conclusion of the Master may have erred because it was not before her. He identified two aspects of that evidence. 7 His Honour said that were he required to determine whether there was an error below on the basis of the evidence tendered to him, he would find against the appellant. However, this was not a case that could be determined on the papers. Having regard to the importance which he placed upon the oral evidence given by the plaintiff and the other witnesses called on her behalf below, he considered that it was appropriate to order a rehearing of the matter before the Master, so that all material evidence could be brought to bear upon the question at issue. 8 In the result, his Honour concluded (at par 23) that although he did not consider that the Master was in error in terms of the material before her, the additional evidence tendered by the appellant was of such a kind as to warrant a quashing of the order below and the ordering of a rehearing. 9 In the application for leave to appeal, the appellant argued that Adams J had not decided the contested issue as to whether to receive the further evidence. Justice Beazley and I who heard the leave application were not persuaded that that argument had sufficient prospect of success having regard to the transcript of argument before Adams J, in which the question of receiving the further evidence in the interlocutory appeal was agitated at some length and having regard to the terms of pars 19 and 23 of the judgment. 10 We were invited to reconsider this issue and to enlarge the leave to appeal that was granted. I remain of the view previously expressed and for my part would not extend the grant of leave to embrace this issue. 11 Returning to the judgment of Adams J, his Honour heard submissions as to costs and in the course of those submissions he was asked by counsel for the defendant to direct that the matter be reheard by a Master other than Master Harrison. There was some debate about that and his Honour then in his judgment said at par 25: I indicate the matter should be reheard by a Master other than Master Harrison and I do so for the reason that it might be that a reasonable person might apprehend that having come to a view about the credibility of the plaintiff after extensive oral evidence and cross-examination she may find it difficult to place those conclusions out of consideration for the purposes of redetermining the matter. 12 Within the scope of the leave granted, this appeal challenges the dispositive orders made by Adams J. The challenge relates to the reasons in par 20 explaining why his Honour determined that there had to be a rehearing other than on the papers and the reasons embodied in par 25 explaining why his Honour was of the view that the rehearing should be by a Master other than Master Harrison. 13 This is an appeal against a discretionary order. I am of the view that no error has been demonstrated in the manner in which his Honour exercised his discretion on these two matters. Once it is accepted that the fresh and further evidence was to be received, a new trial was sadly but inevitably necessary. The new trial necessarily involved a determination of the credibility of the appellant's evidence, in which she said that she did not link the alleged sexual abuse with her psychiatric difficulties until after 1996. That could not have been determined on the papers. 14 His Honour's decision that the matter not be reheard by Master Harrison was in my view one that was open to him, having regard to the principles stated in Steedman v Baulkham Hills Shire Council No 2 (1993) 31 NSWLR 562 at 576-577. Once it was determined that the matter should not go back to Master Harrison, it was quite appropriate that his Honour could determine that it go back to be heard by someone other than himself. He indicated that it should be a Master other than Master Harrison. Whether or not that precluded the matter going before another judge, should there be some difficulty in finding another Master, is something we need not concern ourselves with. Clearly there are more Masters than Master Harrison who would be able to determine the matter. 15 I see no error in the disposition of the matter as indicated in par 20-25 and for those reasons I would dismiss the appeal with costs. 16 SHELLER JA: I agree with what the President has said and with the orders that his Honour proposes. 17 FOSTER AJA: Yes, I likewise agree. 18 MASON P: That is the order of the Court. 19 [Note. At the commencement of this appeal it was ordered that there be no disclosure of the identity of the parties.] *********