New South Wales Supreme Court CITATION : "SD" & 2 Ors v Director General of Community Welfare Services (Vic) & 3 Ors [2001] NSWSC 441 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20148/2000 HEARING DATE(S) : 2 April 2001 JUDGMENT DATE : 30 May 2001 "SD" (First Plaintiff) "BD" (Second Plaintiff) "JD" (Third Plaintiff) Director General of Community Welfare Services (Vic) PARTIES : (First Defendant) The Minister for Community Welfare Services (Vic) (Second Defendant) State of Victoria (Third Defendant) The Minister for Community Services (NSW) (Fourth Defendant) JUDGMENT OF : Master Harrison Mr P Gray (Plaintiffs) COUNSEL : Mr M Scott (First to Third Defendants) Mr T H Barrett (Fifth Defendant) Carroll & O'Dea (Plaintiffs) SOLICITORS : Sparke Helmore (First to Third Defendants) Crown Solicitor (Fifth Defendant) CATCHWORDS : Extension of time to commence proceedings ss 60G and I - Limitation Act - Wards of the States of Victoria and NSW Limitation Act 1969 (NSW) LEGISLATION CITED : Child Welfare Act 1939 (NSW) Victoria Social Welfare Act Williams v Minister, Aboriginal Land Rights Act 1982 & Anor (1994-95) 35 NSWLR 497 Johnson v DOCS [1999] NSWSC 1156 Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 Drayton Coal Board Pty Limited v Drain (NSWCA Gleeson CJ, unreported 22 August 1995) Szerdahelyi v Bailey; Ortado v Bailey; Lewis v Bailey (unreported, NSWSC Badgery-Parker J, 1 May 1997) CASES CITED : Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 128 Dow Corning Australia Pty Ltd v Paton, Mears v Paton (unreported NSWCA, 24 April 1998) Fitzgerald v Bankstown City Council (unreported, NSWCA, 6 November 1995) Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (2) [2000] NSWCA 255 Cubillo v Commonwealth of Australia (1999) 163 ALR 395 Breen v Williams (1996) 186 CLR 71 Sovar v Henry Lane Pty Limited (1966-67) 116 CLR 397 Stubbs v NRMA Insurance Limited (1997) 42 NSWLR 550 Holt v Wynter [2000] 49 NSWLR 148 DECISION : (1) The plaintiffs are granted an extension of time within which to commence proceedings in this court for damages in respect of the breaches of the duty of care owed to the plaintiffs by the first, second, third and fifth defendants between at least 12 October 1979 until at least January 1986 up to an inclduing 20 April 2000; (2) The plaintiffs are to pay the defendants' costs. 34 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON WEDNESDAY, 30 MAY 2001 20148/2000 - "SD" & 2 ORS v DIRECTOR GENERAL OF COMMUNITY WELFARE SERVICES (VIC) & 4 ORS JUDGMENT (Extension of time to commence proceedings ss 60G and I - Limitation Act Wards of the States of Victoria and NSW) 1 MASTER: By notice of motion filed 20 April 2000 the plaintiffs seek an order extending the time within which to commence proceedings pursuant to ss 60G and I of the Limitation Act 1969 (NSW). The plaintiffs are not relying on s 58 of the Limitation Act. The first plaintiff "SD" relied on his affidavit sworn 5 July 2000. The second plaintiff "BD" relied on her affidavits sworn 11 July 2000 and 14 July 2000. The third plaintiff "JD" relied on her affidavit sworn 15 July 2000. The plaintiffs also relied on the affidavits of their solicitors Maithri Panagoda sworn 17 July 2000 and Virginia Hart sworn 14 February 2001. "SD", "BD" and "JD" are siblings. The first defendant is the Director General of Community Welfare Services (Vic). The second defendant is the Minister for Community Welfare Services (Vic). The third defendant is the State of Victoria. The first to third defendants relied on two affidavits of Deborah Jackson sworn 15 November 2000 and 14 February 2001. The fourth defendant is the Minister for Community Services (NSW). The plaintiffs are not proceeding against the fourth defendant. The fifth defendant is the State of New South Wales. It did not rely on any affidavit evidence. 2 The statement of claim alleges that from October 1979 until mid 1985 the first to fifth defendants failed to take any care of, or exercise any role in relation to the plaintiffs. The plaintiffs allege that the defendants breached their duties by failing to care for the them and to protect them from harm; failing to act on their best interest in accordance with their long term needs; failing to ensure that they were well cared for and that their physical, intellectual and spiritual development was preserved and enhanced; failing to ensure that they received adequate and appropriate educational opportunities and failing to ensure that they were not exposed to physical or mental ill treatment or to the avoidable risk of such ill treatment. 3 The plaintiffs also allege that the defendants failed to care for and supervise them adequately or at all from 12 October 1979 to June 1985 by failing to protect them from physical and psychological mistreatment and sexual abuse and failing to supervise the plaintiffs' parents so as to ensure that the plaintiffs did not suffer ill treatment or neglect including physical and psychological mistreatment and sexual abuse. Additionally, the plaintiffs allege that the defendants failed to take any adequate steps to protect and supervise the plaintiffs notwithstanding their awareness from at least June 1981 that the plaintiffs were not in their mother's care; and home release had broken down. The plaintiffs were not under the supervision of, in New South Wales, the New South Wales department because they were thought to be in Victoria. The plaintiffs were not under the supervision, in Victoria, of the Victorian department and the plaintiffs' father knew of their whereabouts. 4 The plaintiffs pleaded breaches of fiduciary duty, statutory duty and negligence by the defendants from 1979 to 1985. The plaintiffs require an extension of time to commence proceedings in relation to the claims for breaches of statutory duty and negligence. However, the plaintiffs have separate entitlements to prosecute their claims for breaches of fiduciary duty and do not require an extension of time to commence those proceedings. 5 In Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (1994-95) 35 NSWLR 497, the Court of Appeal considered whether s 60G and s 60I of the Act apply to a claim for breach of fiduciary duty. The facts in Williams are that Ms Williams, a woman of Aboriginal descent, born in 1942, was placed at birth in a home for Aboriginal children by the Aborigines Welfare Board. A few years later she was moved by the Board to a home for "white" children because she was fair-skinned. She claimed that it was not until 1991 that she came to realise her borderline personality disorder was the result of her childhood experiences. She therefore sought an order for an extension of time under the Act in order to proceed against the relevant authorities for negligence, breach of duty and wrongful detention. The motion to extend the limitation period was dismissed at first instance and the plaintiff appealed this decision. In Williams Kirby P at 509 stated: "But it is a mistake of law to assume that an equitable claim, based on an equitable cause of action, not for damages but for equitable compensation, is to be dealt with under s 60G of the Limitation Act . It is not. It raises separate and different questions. Nor can the application of the Act "by analogy" lead to the automatic application of s 60G to such a claim. Analogous application of the statute does not necessarily mean exact application of its terms. The considerations that may be relevant to a defence of laches will be different from (or not exactly the same as) the considerations relevant to the application of the Act." 6 The matter of Williams was heard by Abadee J who decided that there was firstly, no common law duty of care owed by the defendant; secondly, no actionable statutory duty; thirdly, that the Board did not owe the plaintiff any fiduciary duty; and fourthly, if any of these duties had been owed to the plaintiff they had not been breached. The appeal from Abadee J's decision was dismissed ([2000] NSWCA 225). 7 A similar and instructive case is Johnson v DOCS [1999] NSWSC 1156. These proceedings concerning an extension of time were decided by Rolfe J. In Johnson an Aboriginal boy was made a ward of the State as an infant. After the expiration of the limitation period he sought to bring proceedings against the respondents alleging common law negligence, and breach of statutory and fiduciary duties. I shall refer to this decision in more detail later in this judgment. 8 For the purposes of this application I find the following facts. In doing so, I have taken the plaintiffs' case at its highest. Should the matter go to trial some of these facts will be disputed. All plaintiffs were cross examined. I observed each of them carefully when they gave evidence and were being cross examined. I formed the view that they gave truthful evidence and I have taken into account that many of these events occurred when the plaintiffs were children and thus seen through children's eyes. (1) The first plaintiff "SD" was born on 15 May 1970. "BD" and "JD" are twins and were born on 19 August 1971 and are the second and third plaintiffs respectively. Their father and mother are "AW" and "LD" respectively.. (2) In April/May 1977 the plaintiffs' father was in gaol. The children and their mother resided with their maternal grandmother in Nambucca Heads. They attended school during while residing at Nambucca Heads. At this time Mr Bob Hogendyk of the NSW Department of Youth and Community Services (DYCS NSW) reported that the family was residing in a caravan park at Nambucca Heads. Mr Hogendyk was aware of the delay of three days that it took the plaintiffs' mother and maternal grandmother to report that the plaintiffs' father had taken the children to a milkbar and failed to return them. (3) In December 1977 the plaintiffs' father abducted them from their mother at Nambucca Heads and took them to Melbourne and thence onto Adelaide. (4) In early 1978 the plaintiffs' mother located the father and children in Adelaide. The plaintiffs' parents reconciled for a short time. The plaintiffs' parents separated again and their father took them to Melbourne. The plaintiffs' mother located them. (5) On 16 March 1978 the plaintiffs were made wards of the Supreme Court of Victoria. Also in March 1978 the plaintiffs' parents reconciled again. (6) On 20 June 1978 the plaintiffs were removed from the parents' care by Victorian police following a violent domestic dispute between the parents. They were taken by the police to Allambie Children's Home Melbourne. (7) On 27 June 1978 the Victorian police made a protection application for unfit guardianship to the Children's court Melbourne. (8) In July 1978 the plaintiffs' mother was admitted to Royal Park psychiatric hospital and was diagnosed with schizophrenia. Their father was arrested and gaoled for criminal offences. (9) On 3 July 1978 Barbara Hall, a probation officer, in a pre-sentence report on the family stated: "Neither parent is in a position to provide the children with adequate care and supervision." (10) On 4 July 1978 the plaintiffs and their younger sister were admitted due to unfit guardianship to the care of the Social Welfare department (Vic) by order of the Children's court Melbourne. This was the second order for guardianship made by a Victorian court. The Children's court was unaware of the earlier wardship order made by the Supreme court in March 1978. This previous order was apparently never amended or revoked. (11) On 17 July 1978 the children underwent psychiatric assessment by Dr Chandler. Dr Chandler reported that the children seemed to come from a socially stimulating environment and they appeared to be of good intelligence and experienced no problems with school work or with peer groups. Dr Chandler has since died. (12) On 2 or 3 October 1978 Dr Hogan, psychiatrist, diagnosed the plaintiffs' mother as suffering from schizophrenic psychosis and thought disorder. In October 1978 she was released from Royal Park. (13) On 12 October 1978 a DCWS case planning meeting recommended that the wardship be transferred to DYCS (NSW) once their mother had established independent accommodation for herself and the children in New South Wales. Mr Hogendyk of DYCS (NSW) records as having "agreed that he would be able to supervise closely". A psychiatric supervision and restraining order against the father was to be arranged by DYCS if possible. The family background notes recorded the parole officer's description of the father as "clinically mad, potentially violent and has a basic need for someone to be dependent upon him". The family history notes recorded that the mother admitted that there had been a great deal of violence in the relationship since her last pregnancy - late 1975 onwards, that her husband frequently hit her and at one time, picked one of the girls up by her hair and threw her across the room. The restraining order was not arranged. (14) On 25 October 1978 DYCS (NSW), Coffs Harbour, in a report titled "Wards - restoration - State of Victoria", Mr Hogendyk, district officer, stated: "wardship of these children should be transferred to this State [NSW]". (15) On 3 November 1978 the plaintiffs' father was released from Pentridge gaol. On that date a Transfer of Guardianship in respect of each of the plaintiffs was executed by the acting director, Family and Adolescent Services (Vic) in favour of the Minister DYCS (NSW) pursuant to s 139 of the Child Welfare Act 1939 (NSW). The space provided for acceptance of guardianship by New South Wales minister remained unsigned. (16) On 15 November 1978 DCWS (Vic) decided not to transfer wardship but rather to trial home release to the plaintiffs' mother in New South Wales for the school holidays with access being given to the father. (17) On 17 November 1978 Dr Chandler performed a psychiatric assessment of the parents. (18) In December 1978 DCWS (Vic) cancelled the holiday home release as the plaintiffs' mother was charged with theft offences relating to her time at Royal Park. The plaintiffs remained at Allambie. (19) In January 1979 the plaintiffs' parents again reconciled. They sought home release for the plaintiffs from Allambie house. Various weekend visits followed but home release was denied. (20) On 26 February 1979 the parents again separated and the plaintiffs and their mother moved into a refuge. (21) On 16 March 1979 the plaintiffs' father abducted the plaintiffs from the primary school they were attending at Allambie. (22) On 24 March 1979 the plaintiffs were returned to Allambie by the police. (23) On 27 May 1979 Peg Condon, welfare officer DCWS (Vic) in a report outlined that home release had been denied for the following reasons: "(a) unstable accommodation; (b) criminal activities; (c) religious confusion; (d) indiscriminate sexual standards; (e) children seldom sent to school; (f) unstable marital situation; (g) constant psychological pressure on children; (h) both parents manipulative and psychologically unstable." (24) In mid 1979 the plaintiffs' father was convicted of abduction and gaoled at Pentridge and then Boggo Road Brisbane for outstanding offences. The plaintiffs' mother applied to the Supreme Court of Victoria for custody of the plaintiffs. (25) On 8 August 1979 a final case plan recommended gradual home release to the plaintiffs' mother until final release from 13 October 1979. (26) On 21 August 1979 the Supreme Court of Victoria made interim orders that the Director General of Social Welfare be granted custody of the four children. Staged home release was to be granted to the mother which was to be exercised in Melbourne until 12 October 1979. From that date the plaintiffs' mother would be permitted to take all of the children to live with her at Nambucca Heads on the proviso that she agreed to the home release program then being supervised by DYCS (NSW). (27) In August/September 1979 a file note of a telephone call from Ms Katrina Morris of DYCS (NSW) recorded an acknowledgment that the New South Wales department was willing to supervise the home release of the children to their mother. (28) On 8 October 1979 Peg Condon of DCWS (Vic) wrote to the plaintiffs' father in gaol advising him that the children would be going to Nambucca Heads with their mother on 12 October 1979. (29) On 12 October 1979 the home release program to the mother was put into effect and she and the children moved to Nambucca Heads, New South Wales. (30) On 15 October 1979 the plaintiffs and their mother moved to Dee Why. (31) On 17 October 1979 a detailed wardship report was made by Peg Condon, welfare officer of DCWS (Vic). On 17 October 1979 she wrote to Katrina Morris of DYCS (NSW) enclosing the wardship report "as requested by your area worker Mr Bob Hogandyke [sic]". It thanked DYCS (NSW) for accepting a supervisory role. On 18 October 1979 Peg Condon wrote to the plaintiffs' father in gaol advising him that the children and their mother would be initially living with the grandmother in Nambucca Heads referring him to Mr Hogendyk and concluded by saying: "It will probably not be necessary for this worker to be involved further with yourself or family". (32) By late 1979 the children were living with their aunt in Sunshine Victoria. (33) On 19 November 1979 Mr Hogendyk advised the New South Wales department that the mother and children had moved to Dee Why from Nambucca Heads on 15 October 1979. (34) In late 1979 a document styled "Discharge of State Wardship File Summary" (P Condon) stated: "The jurisdiction of the Victorian Supreme Court ceased once the children crossed the border. The Department of Youth and Community Services stated they would supervise the family upon their return to that State. However it was not necessary to transfer Guardianship as the children who are known to their Department could be readily made Wards of that State should it be required." (35) A memorandum dated 1 July 1980 from Chris Healy DCWS (Vic) to Helen Thomas DCWS (Vic) stated: "Even though the children have moved interstate your region still has case planning responsibility until wardship is transferred." (36) A letter dated 30 March 1981 from the Director Family & Adolescent Services (Vic) to the plaintiffs' mother asserted to the purported discharge from the care of DCWS (Vic). (37) On 22 June 1981 a handwritten note was made of a telephone conversation to Allambie House by Mary Crawley of Dee Why Women's Refuge at the request of the plaintiffs' mother. The note recorded: "Allambie telephoned aunt in Sunshine. Spoke to aunt and "SD" and was told the children were doing well. And had seen the father recently. News conveyed to mother who was relieved as she had been concerned that 'father had them now'." (38) In October 1981 the plaintiffs' father took them from their aunt's house. They lived with their father at various places in Victoria and New South Wales including Gardeners Road Eastlakes, Sydney. (39) Due to their nomadic lifestyle the plaintiffs had to frequently adopt a fictional persona at their fathers request. During the mid 1980's "SD" sought counselling as he had problems in forming friendships and although "SD" had to adopt a fictional persona, he was always aware of what was the truth and what constituted the fictional identity. (40) In 1981/1982 the father sexually abused the children. Sexual abuse and violence continued until 1985. (41) In November 1983 the plaintiffs' father took them to live in Melbourne, firstly to Fitzroy and then to Prahran. (42) In January 1985 the police removed the plaintiffs' father after he was found walking naked in the street. The plaintiffs stayed with their aunt and then with a stepsister in Melbourne. (43) In early 1985 the plaintiffs' father took them to Surry Hills, Sydney. (44) In June 1985 the plaintiffs' father took them to the DOCS office at Bondi Junction. From there they were taken to the Salvation Army Children's Home at Stanmore. (45) On 8 January 1986 the Yasmar Children's court Sydney committed the plaintiffs to the care of the Director of Salvation Army Home until aged 18 years due to a complaint of "neglected child/incompetent guardianship" pursuant to the Child Welfare Act 1939 (NSW) - s 72(j). (46) On 6 September 1986 the plaintiffs were transferred to the Salvation Army Family Group home. They attended counselling with Chris Lennings, psychologist, at Marrickville Community Health centre. At this stage only details of the physical abuse were proffered to Mr Lennings. In particular "SD" felt outcast, lonely and had had trouble forming friendships for many years. (47) The plaintiffs continued counselling with Mr Lennings until the late 1980's. (48) In 1986 "BD" and "JD" attended counselling with Ms Liz Yeo psychologist. (49) In August 1991 "BD" informed Ms Yeo that she had been sexually abused by her father and was referred to counselling with Annie Kennedy, psychologist at Ashfield. (50) In December 1996 "JD" attended counselling a couple of times per week with Beverly Laurie. She continued to see Ms Laurie until 2000. (51) In October 1997 the plaintiffs attended upon and received medical reports from Dr Quadrio, a consultant psychiatrist. (52) It is Dr Quadrio's opinion that ongoing counselling and medical examinations have revealed that by around late 1997, the plaintiffs suffered from a range of personality injuries that are both permanent and complex due to the ongoing sexual and physical abuse they suffered during childhood. These injuries include, but are not limited to, the lengthy symptomatology associated with the chronic post traumatic stress disorder that is prevalent within all three plaintiffs such as depression, anxiety and vulnerability. (53) On 2 July 1998 each of the plaintiffs was awarded $20,000 by way of compensation by the Victims of Crime Assistance Tribunal in Victoria. On 11 March 1998 "BD" was awarded $40,000 by way of compensation by the NSW Victims' Compensation Tribunal and both "SD" and "JD" were awarded $14,000. However on 26 August 1999 the amount awarded to "SD" was increased to $40,000 by the NSW District Court in an appeal of the Victims' Compensation Tribunal award. (54) On 20 April 2000 the statement of claim and notice of motion were filed seeking an extension of time pursuant to s 58 and s 60G of the Act. 9 I turn to ss 60G and 60I of the Act. The procedure provided by this group of provisions falls into subdivision (3), and is available for causes of action that accrue after 1 September 1990. Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such a period as it determines". 10 The relevant provisions of s 60I are as follows. "(1) A court may not make an order under s 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered; or (ii) was unaware of the nature or extent of personal injury suffered; or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and (b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 11 Thus to gain access to the beneficial provisions of s 60G, the plaintiffs must show that: (1) As at 1988 in respect of "SD", and in 1989 in respect of "BD" and "JD" (the expiration of the relevant limitation periods) they were unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii). (2) That they did not become aware of that or those or they ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to them) earlier than 20 April 1997. 12 The practical effect is to require the plaintiffs to identify specifically what fact or facts they claim not to have known as at 20 April 1997; which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I(1)(a); and to show (by evidence) the date on which they acquired knowledge thereof (being a date later than 20 April 1997); or to show that that fact was or those facts were still unknown to them on that date. The defendants did not submit that the plaintiffs ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I(1)(b). 13 Counsel indicated that the plaintiffs relied on s 60I(1)(a)(i), (ii) and (iii). The plaintiffs submitted that it was not until October 1997 ("SD") and October 1998 ("BD" and "JD") when they read of the contents of the reports of Dr Quadrio and Dr Waters respectively that they became aware of the experiences which caused their current psychiatric condition. (i) Whether the plaintiffs have proved that "they did not know that a personal injury had been suffered " 14 The plaintiffs submitted under s 60I(1)(a)(i) that they did not know that they had diagnosable psychiatric illnesses until they had read the reports of Dr Quadrio and Dr Waters in 1998. The first plaintiff was aware that he had suffered from physical injuries inflicted by his father at a date earlier than 20 April 1997. Both the second and third plaintiffs also admit they were aware that they had suffered physical injuries prior to the relevant date but their claims in these proceedings are for damages for psychological and psychiatric injuries. 15 The first plaintiff is a practising solicitor who was admitted in May 2000. He currently practices in the field of banking and finance. It was the first plaintiff's sister "JD") who was the driving force in seeking legal redress for the actions of their father and the defendants in these proceedings. The first plaintiff gave evidence that he only became aware of the nature and extent of his injuries in late October or November 1997 after reading the report of Dr Quadrio dated 21 October 1997. At paragraph 172 of his affidavit he stated that the report "told me things about myself I had not considered before". When cross examined on his awareness he gave evidence to the effect that he did not turn his mind to the events of his childhood until recently (t 24.42). 16 The second plaintiff gave evidence in her affidavit at paragraph 79 to the effect that it was only after reading the reports of Dr Quadrio and Dr Waters, dated 21 October 1997 and 7 October 1998 respectively, that she became aware of the extent of the psychiatric injuries she had suffered. The third plaintiff gave similar evidence in her affidavit citing at paragraph 102 the medical reports of Dr Quadrio and Dr Waters and stating that she was "extremely disturbed by the comments as [they] highlighted things about myself I had not understood or recognised before". 17 As was stated by the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (per Gummow and Cooper JJ at 402) it is important to appreciate that the personal injury which the plaintiff suffered was a psychiatric illness. It should also be appreciated that it is the perception of the plaintiff that is important. 18 On 6 September 1986 the plaintiffs were transferred to the Salvation Army Family Group home. They attended counselling with Chris Lennings, psychologist, at Marrickville Community Health centre. At this stage only details of the physical abuse were proffered to Mr Lennings. In particular "SD" was aware that he felt outcast, lonely and had had trouble forming friendships for many years. The plaintiffs continued counselling with Mr Lennings until the late 1980's. In 1986 "BD" and "JD" attended counselling with Liz Yeo psychologist. In August 1991 "BD" informed Ms Yeo that she was sexually abused by her father and was referred to counselling with Annie Kennedy, psychologist at Ashfield. In December 1996 "JD" attended counselling a couple of times per week with Beverly Laurie. She continued to see Ms Laurie until 2000. 19 In 1996 the plaintiffs took proceedings in the Victims Injury Tribunal in Victoria. The plaintiffs were cross examined as to their knowledge and awareness in relation to their claims made before the Victims Compensation Tribunals of both New South Wales and Victoria. The plaintiffs first saw a solicitor with regard to these matter in December 1996 at the Inner City Legal Centre. There was then a delay in filing the claim while the matter was researched. Police statements and psychological assessments were tendered to the Tribunal. "SD" made his Police statements on 1 August 1997, "BD" on 22 March 1997 and "JD" on 5 June 1997. Each of the plaintiffs received a report on 20 October 1997. The plaintiff were not required to make any appearance or undertake any other tasks and, according to "SD", were not involved in the process beyond signing prepared documents and the like (t 6.36). They did not give oral evidence at the Victims Injury Tribunal. 20 In making the reports to the police "SD", in particular, did not give the full details of the abuse just general statements about their father's violent attitude towards them (t8.35). As stated in their earlier evidence it was only when the reports of Dr Quadrio were received that the plaintiffs began to realise the full extent of their psychological and psychiatric injuries. The evidence given by "SD" suggests that he (the other plaintiffs were not cross examined on this issue) did not think rationally about the nature of the compensation claims made, he "never thought dads hit me therefore he has committed a crime against me." Even though the plaintiffs made claims to the VCT, their evidence is that they were still not aware of their injuries. As in Dinnison. While each plaintiff may have been aware that they suffered from symptoms such as being lonely or depressed prior to the limitation period expiring it is my view that the plaintiffs did not know that they suffered from a diagnosable psychiatric illness until they read the reports of Drs Quadrio and Waters at the end of 1997 and beginning of 1998. As this knowledge falls within the time period stipulated in s 60I(1)(b) the plaintiffs have passed through the s 60I(1)(a)(i) gateway. (ii) Whether the plaintiffs have proved that they were "unaware of the nature or extent of the personal injury suffered " 21 The test of knowledge posed by s 60I(1)(a)(ii) requires the court to look at the actual awareness of the plaintiffs. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I(1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at 9 and 10). Harris, is a case of physical disease of gradual onset, not one of psychiatric illness. 22 The nature and extent of the injury which the plaintiffs have sustained is to be determined as at the date of the hearing of the application (Harris pp 13 and 14). The plaintiffs may be held to have been aware of the nature or extent of their injuries within the relevant period if during that period they were aware of the effect which the injuries were then having upon them and of their likely future course, even though they may have been unaware of the precise pathology or medical diagnosis. On the other hand, knowledge of the medical diagnosis will not itself amount to knowledge of the nature and extent of the injuries if the plaintiffs were unaware of significant aspects of the prognosis, for example that the injury is permanent and will not be amenable to treatment; or that it may deteriorate with the passage of time. As long as the consequences are of a kind that the plaintiffs expect, the plaintiffs will be aware of the extent of the injuries. 23 On the topic of awareness, the High Court referred to a passage from Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 at 151, where it said that the meaning of the words "first becomes aware of" in a Queensland statute is equally applicable to the term "unaware" in s 60I(1)(a): "[T]he very words 'become aware' strongly indicate that the statute is looking to the purchaser's actual knowledge of the failure which, by description, is a failure to comply with the statutory provisions. We conclude that the words 'becomes aware of the failure' in s 49(5) involve not only knowledge that a statement containing the specified material has not been given but an awareness that the fact that such a statement was not given constitutes a 'failure' to do something which the Act says should be done." 24 The words "become aware" mean that the plaintiffs must have knowledge and awareness of the fact that such a statement was given. In terms of awareness it must be remembered that individuals have different perceptions. I had difficulty understanding the first plaintiff's evidence at page 8 of the transcript. I asked: "Q. I have some difficulty accepting that you are [were] a law student - albeit it in your first year. Your father hit you and what you are trying to tell me is that is not an assault? A. I was aware it was an assault. Q. To me and to others you would think that if someone hit you, then they assaulted you? A. I don't think I was thinking about it in that way. It was my father who was doing those things to me. I don't know. It's something about - I can't really explain it. It's perhaps not rational to say - it's not rational to think. Maybe you don't automatically think it is as (sic) assault. I am sorry, I can't give you more - I never actually have thought 'dad's hit me therefore he has committed a crime again (sic) me.' It's just something that happened." 25 Nevertheless, after this explanation I accept his answer. I believe him to be truthful as it appears that because these acts were committed by a parent, the first plaintiff did not have an insight that these actions were assaults. Hence he was unaware of the nature or extent of his injuries. 26 For reasons given under s 60I(1)(a)(i) it is my view that it was late 1997 or early 1998 when the plaintiffs became aware of the nature or extent of their injuries. Hence, the plaintiffs have passed through the s 60I(1)(a)(ii) gateway. (iii) Whether the plaintiff was unaware of the connection between personal injury and the defendant's act or omission 27 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiffs rely to found the cause of action referred to in s 60G. Those acts or omissions, will be found in the plaintiffs' particulars of negligence - Drayton Coal Board Pty Limited v Drain (NSWCA Gleeson CJ, unreported 22 August 1995). 28 The first plaintiff deposed that it was in January 1998 when he first began to consider the possibility that the defendants may have breached the duty of care they owed him. However in February 2000 he received copies of his files from the defendants and these, in conjunction with the medical reports and advice from Mr Peter Gray of counsel, led him to realise that he may have a cause of action against all the defendants. "SD" stated that he didn't blame the government at the time and that he, understandably, rarely thought about the instances of abuse (t 24.42). He stated that he only began to feel anger after he began to receive copies of parts of his file and he received these documents after 20 April 1997. The second and third plaintiffs gave similar evidence to the effect that they only became aware of the nexus between their injuries and the defendants' acts or omissions in February 2000 when they received legal advice from Mr Gray of counsel - see paragraphs 80 and 102 of the second and third plaintiffs' affidavits respectively. 29 It is my view that the plaintiffs were unaware of the connection between the personal injuries and the defendants' acts or omissions until January 1998 at earliest. This is within the time frame stipulated in s 601(i)(b). The plaintiffs have passed through the s 60I(1)(a)(iii) gateway. 30 As the plaintiffs have satisfied the provisions of s 60I(1)(a)(i),(ii) and (iii) I turn to consider whether it is just and reasonable to extend the limitation period. Just and reasonable 31 Firstly, I turn to consider whether the plaintiffs have a real case to advance. The defendants submitted that the plaintiffs did not have a cause of action. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question of whether there is indeed evidence to establish the plaintiffs' cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (See Szerdahelyi v Bailey (unreported, NSWSC Badgery-Parker J, 1 May 1997); Ortado v Bailey (unreported, NSWSC Badgery-Parker J, 1 May 1997); Lewis v Bailey (unreported, NSWSC Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 128 and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (unreported NSWCA, 24 April 1998) and Fitzgerald v Bankstown City Council (unreported, NSWCA, 6 November 1995). 32 As previously stated the plaintiffs allege that the defendants were responsible for the care and welfare of the plaintiffs from at least 12 October 1979 until at least January 1986. As previously stated it is alleged that the defendants owed duties to the plaintiffs which included: (a) to care for them and protect them from harm; (b) to act in their best interests and in accordance with their long term needs; (c) to ensure that they were well cared for and that their individual interests were preserved and enhanced, whilstever they were living in the various institutions and places; (d) to ensure they received sufficient education opportunities; and (e) to ensure that they were not exposed to physical or mental ill-treatment or the avoidable risk of such treatment. 33 It is alleged that the defendants owed the plaintiffs a fiduciary duty and duties in torts and statutory duties of similar character by virtue of the provisions of ss 9, 10, 22, 23, 24, 25, 50, 53, 54, 82, 144 and 148B of the Child Welfare Act (NSW) and similar provisions in the Victorian Social Welfare Act are pleaded. It is alleged that the defendants breached the duties they owed. These breaches are particularised in para 29(iii) of the statement of claim. 34 Under the Child Welfare Act the Minister becomes the guardian of the plaintiffs even though other parties, such as parents, have custody and care for the plaintiffs. In Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (2) [2000] NSWCA 255 it was stated that it was no specific incident that gave rise to the psychiatric injuries but rather a period of ongoing negligence through acts and/or omissions that led to the damage. There are some specified incidents of sexual and physical abuse in these proceedings. As in Johnson, I respectfully agree with Rolfe J where at para 81 he stated that the decision in Williams did not involve a determination of all the issues raised in these proceedings. Likewise the decision of the Court of Appeal in Williams did not involve a determination of all the issues raised in these proceedings. I also respectfully agree with Rolfe J when he said, suffice to say that in this area of the law, it could not be said that there was not an available cause of action based on a perception of the meaning of the statute without an examination of the facts. The decision in relation to summary judgment in Cubillo v Commonwealth of Australia (1999) 163 ALR 395 also supports this view. In Cubillo the causes of action were pleaded for wrongful imprisonment, breaches of general duty of care and breaches of fiduciary duty. The plaintiffs in Cubillo were unsuccessful at trial. An appeal is pending. 35 In Johnson Rolfe J held that it is difficult to say that the relationship of child and guardian does not give rise to a fiduciary relationship or obligation. Of course, in any care it is necessary to examine the content of the duty and the alleged breach of it. His Honour referred to Williams where Kirby J at 511 stated: "The Board was in the nature of a statutory guardian of Ms Williams. The relationship of guardian and ward is one of the established fiduciary categories. … The Board was, in my view, arguably obliged to Ms Williams to act in her interest and in a way that truly provided, in a manner apt for a fiduciary, for her custody, maintenance and education. I consider that it is distinctly arguable that a person who suffers as a result of proper care on the part of a fiduciary may recover equitable compensation from the fiduciary for the losses occasioned by the want of proper care …" 36 And the High Court in Breen v Williams (1996) 186 CLR 71 where it was stated at para 134: "The acceptance in Bennett v Minister of Community Welfare that the relationship of guardian and ward created a fiduciary relationship and the acknowledgment in Paramasivan v Flynn that the relationship of guardian and ward may give rise to a fiduciary relationship are sufficient to persuade me that it would be premature to hold, at this stage, that the applicants have failed to make out a care of a fiduciary relationship on the pleadings. It may transpire, when all the evidence has been taken, that no such relationship has been proved: that is matter, however, that should await the trial of the action." 37 Once again, I respectfully agree with Rolfe J. 38 It is alleged that as a result the plaintiffs suffer from a number of psychiatric illnesses, especially chronic post traumatic stress disorder. As mentioned earlier this condition has a range of effects on the plaintiffs but has manifested itself in certain ways in the plaintiffs. In particular "SD" suffers from abnormally high feelings of anxiety, dependency and vulnerability; "BD" from profound depression and vulnerability; and "JD" remains vulnerable to chronic anxiety, low level depression and hypervigilance. These symptoms are, in each of the plaintiffs respectively, the most prominent in a range of progressive and cumulative personality disorders that were caused through the extended and ongoing physical and sexual abuse of the plaintiffs during their formative stages of personality development. 39 The plaintiffs submitted that the damage they suffered, in the form of psychiatric injuries, was due to the negligent acts and omissions of the defendants who failed to fulfil their duty to adequately care for the plaintiffs, when as guardians, they had a duty to do so. In light of these allegations the plaintiffs tendered the report of Dr Waters, psychiatrist, dated 7 October 1998. What follows is a summary of the representations made by Dr Waters in his report: (1) As at early 1979 the Victorian Department was aware that the parents could no longer care for the children and was aware the father had an extensive criminal history and was mentally disturbed. (2) It seemed inconsistent that the defendants decided to separate the father from the family due to their concerns about his personality and behaviour and then inform the father of the family's whereabouts in October 1979. Due to the fathers previous actions this was a decision that carried with it a certain amount of risk, that risk being that the father would attempt to contact the children. As such the Victorian defendants had a duty to inform the NSW defendants of their decision (3) While it is difficult to determine the nature and extent of the communication between the interstate defendants, the NSW defendants, through an employee Mr Hogendyk, were aware of at least some of the risks the children would face if the father regained possession of them and as such they had a duty to closely monitor this case. (4) The failure of the defendants to closely and carefully monitor the plaintiffs stemmed from lapses in judgment; firstly, the defendants ignored the fathers transparent history of evasiveness and deception; secondly, they ignored his ability to totally dominate his wife and the plaintiffs both physically and mentally; and thirdly, his capacity to act in an extremely destructive manner was also ignored. 40 In relation to the law as to whether a breach of the statutory duty gives rise to a private right in Sovar v Henry Lane Pty Limited (1966-67) 116 CLR 397 Kitto J at p 405 stated: "…The intention that such a private right shall exist is not … conjured up by judges to give effect to their own ideas of policy and then 'imputed' to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation." 41 The above quote was cited with approval in Stubbs v NRMA Insurance Limited (1997) 42 NSWLR 550 at 555. 42 It can be argued that the defendant as guardian owed a duty to the plaintiffs to act in their interests and in a way that truly provided a manner apt for a fiduciary for their care. As in Williams Kirby P (as he then was) at p 511C-D stated that it is arguable that a person who suffers as a want of proper care on the part of fiduciary may recover equitable compensation from the want of proper care. As Kirby P pointed out in Williams, in other jurisdictions, compensation for breach of fiduciary duty has been held to include recompense for the injury suffered to the plaintiff's feelings. It can be argued that the common law duty of care is similar to the fiduciary duty or the statutory duty. In relation to breach of statutory duty, it is my view that it is arguable that such a breach could give rise to a private right once the facts are established. The causes of action for breaches of statutory duty and negligence depends on evidence largely common to the claim for equitable compensation for breaches of fiduciary duty. It is my view that the plaintiffs have a real case to advance. 43 Williams was decided before Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1. Consideration must be given as to whether the defendants can obtain a fair trial or whether they will suffer significant prejudice. The principles concerning prejudice have recently been considered in Holt v Wynter [2000] 49 NSWLR 148, the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at 147 para 119 stated that the effect of the High Court decision in Taylor's case is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. The applicant would not be able to demonstrate that it was fair and just that leave be granted if to do so would result in significant prejudice to the potential defendant. If there is an absence of significant prejudice to a potential defendant, there is no reason why the discretion should be exercised in favour of the plaintiff. 44 The defendants have denied liability. I accept that with the passing of 22 years, it can be expected that memories will have faded with the effluxion of time and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice. 45 The first to third defendants submitted that they will suffer from real and actual prejudice. The first to third defendants' solicitor Ms Jackson deposed that several lay witnesses were not available to give evidence, namely employees of the first, second and third defendants: Lyn Davers, Valerie Chandler, Peg Gordon and E Gillmatter. Margaret Vaux, was located and is now 76 years of age. It was Ms Jackson's view that Ms Vaux found it difficult to recall events that occurred 22 years ago. None of the parties suggested that the plaintiffs' parents are not able to be located, nor that they were not able to give evidence. One of the plaintiffs' siblings is not a party to these proceedings. It was not contended that she was unable or unavailable to give evidence. 46 The affidavit of Virginia Hart, the plaintiffs' solicitor, sworn 14 February 2001 deposed that all the witnesses have been located and are able to give evidence. E Gillmatter was actually Gill Matters. Ms Hart spoke with Mrs Vaux on 6 February 2001 and found her recollection of the plaintiffs to be sufficient for the purposes of giving evidence. Further, there is available documentary evidence as to the awareness of the defendants as to the dangers faced by the plaintiffs and the treatment of the plaintiffs at the hands of their father. There are witnesses with a knowledge of these events who can give evidence at trial. However, Dr Chandler who examined the plaintiffs and their parents 1978 has died but her reports remain. If the reports are admitted into evidence at trial the defendants will not have the opportunity to cross examine him. 47 The files of New South Wales and Victorian departments of the defendants dating back to 1978, including medical reports in relation to the children are in existence. However the first to third defendants have submitted that they are not in a position to know if there were further documents that were created and have now been lost. It is more likely than not that in 1979 there were no further documents created. The most likely explanation for the trail going cold is because nothing was done by the department until 1985 when the plaintiffs' father voluntarily took them to the DOCS office at Bondi Junction. The responsibility fell between the Victorian and New South Wales agencies and neither one checked on the welfare of the plaintiffs during these years. I am satisfied that there is evidence available to the defendants in order to properly cross examine the plaintiffs. There are witnesses available who can give evidence as to what occurred. Even though Dr Chandler has died her reports remain. It is my view that the defendants will be afforded a fair trial and that they will not suffer significant prejudice. 48 It is my view that the plaintiffs have discharged their onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. In Wynter, Sheller JA stated that in relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. It cannot be said that the defendants opposition was not wholly unreasonable. The plaintiffs should pay the defendants' costs. 49 The orders I make are: (1) The plaintiffs are granted an extension of time within which to commence proceedings in this court for damages in respect of the breaches of the duty of care owed to the plaintiffs by the first, second, third and fifth defendants between 12 October 1979 until January 1986 up to and including 20 April 2000. (2) The plaintiffs are to pay the defendants' costs. ********** Last Modified: 06/01/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.