New South Wales Supreme Court Lloyd v Bambach & Anor [2005] NSWSC 80 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 15, 16, 17 February 2005 JUDGMENT DATE : 23 February 2005 JURISDICTION : Common Law Division JUDGMENT OF : Master Malpass at 1 DECISION : 1. The limitation period for the causes of action pleaded in the statement of claim is extended up to and including 11 December 2002; 2. The question of costs is reserved; 3. The papers are referred to the Prothonotary for consideration of whether the matter should be referred to the appropriate authorities; 4.The exhibits may be returned thereafter. CATCHWORDS : Extension of limitation period - sexual assaults by teacher on schoolboy - personal knowledge of connection between personal injury and acts and omissions of second defendant - prejudice. LEGISLATION CITED : Limitation Act 1969 ss60E, 60G, 601 CASES CITED : New South Wales v Lapore (2003) 212 CLR 511 Gerard Gregory Lloyd (Plaintiff) PARTIES : Anthony Gerard Bambach (First Defendant) Trustees of the Roman Catholic Church for the Archdiocese of Newcastle/Maitland (Second Defendant) FILE NUMBER(S) : SC 20567/02 Dr A S Morrison SC & Mr A Stone (Plaintiff) COUNSEL : Mr R Keller (First Defendant) Mr P E Blacket SC (Second Defendant) McLachlan Chiltern (Plaintiff) SOLICITORS : Pickering Priestley (First Defendant) Holman Webb (Second Defendant) LOWER COURT JURISDICTION : - 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass 23 February 2005 20567 of 2002 Gerard Gregory Lloyd v Anthony Gerard Bambach & Anor JUDGMENT 1 Master: On 11 December 2002, the plaintiff filed a statement of claim. It named two defendants. It propounds a claim for damages in respect of both physical and psychological injury. Generally speaking, the allegations made against the first defendant are of sexual assaults; and, as against the second defendant; of negligence in causing or permitting such assaults to take place. 2 The plaintiff was born on 25 October 1977. At the age of 10 years, he was in Year 5 at St Michael's School at Nelson Bay. The school is a co-educational primary school. 3 The first defendant was the plaintiff's teacher in Year 5 (the calendar year was 1988). He was also Deputy Headmaster. The assaults consisted of, inter alia, what might be described as touching incidents in the classroom and anal intercourse in a toilet block in a public park during lunchtime. It is also alleged that the first defendant threatened, inter alia, to kill the plaintiff and his mother should the plaintiff say anything to others about the assaults. It is also alleged that the first defendant gave the plaintiff inappropriate presents (sweets, a football and wheels for his skateboard). It is further alleged that he sexually assaulted a fellow student (- -) during the same year. 4 The assault involving anal intercourse was a matter that the plaintiff kept to himself until 18 March 2002 (when he told a barrister who was appearing for him in relation to driving offences). The barrister referred him to his present solicitor. He first saw that solicitor on 18 July 2002. It is not a matter that has been reported to the police. It may have not been known to the second defendant until after service of the statement of claim. It is said not to have been made known to his mother until early 2005. 5 The proceedings have been brought out of time. The relevant limitation period has expired. An application for extension of time has been brought by the plaintiff. The notice of motion was filed on 18 May 2004. Both defendants responded with an application of their own. Each sought to have the proceedings dismissed. The first defendant did not press that application and the court was informed that he did not intend to rely on the statutory defence. These parties then came to a private resolution concerning the applications. 6 The plaintiff ceased to be a minor on 25 October 1995. The relevant limitation period is one of six years (the causes of action arose prior to 1 September 1990). Time for commencement of proceedings expired on 25 October 2001. The proceedings have been brought just over a year out of time. 7 The plaintiff's application is made pursuant to s60G of the Limitation Act 1969 (the Act). Under that provision, the court may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. A court may not make an order under s60G unless it is satisfied that the requirements of s60I have been met. 8 The requirements set forth in subsection (1) thereof are as follows:- (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 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii). 9 Subsection (2) thereof makes the provisions of s60E relevant. Section 60E requires the court to have regard to all of the relevant circumstances of the case (including the matters listed therein). 10 The hearing of the application commenced on 15 February 2005. On that day, counsel for the first defendant sought to be and was excused from further attendance. The hearing continued against the second defendant. It concluded on 17 February 2005. 11 The plaintiff relies on a number of affidavits. Apart from those sworn by himself, his mother and his solicitor (Mr Mooy), he relies on affidavits sworn by Marcus Brandon Walters, Brian Robert Walters, Pamela Ellen Johnstone, Damian William Johnstone, Kerry Smith, Errol John Smith, Jeannette Osmond, Amanda Osmond and Sue Ware. 12 The second defendant relies on affidavits sworn by John Carmody, Marjorie McQualter and Anthony John Enright. 13 Brief supplementary oral evidence was led from the plaintiff. He was then cross-examined. The plaintiff's mother was also cross-examined. 14 After the commencement of the hearing, there was a narrowing of issues. The plaintiff founded his application on the satisfying of the threshold requirement set forth in (iii) of (1)(a) of s60I. Thus, the satisfying of the requirements of (a)(iii) and (b) became the first real issue. 15 The second defendant contended that there was both actual and presumptive prejudice. This was the second real issue between the parties. 16 The second defendant conceded that complaints had been made by other parents and that these matters gave rise to an arguable case of breach of duty. 17 The primary case that was advanced on behalf of the plaintiff was that a failure to investigate (inter alia, the complaints) constituted breach of the duty of care owed by the second defendant. The plaintiff has referred the Court to New South Wales v Lepore (2003) 212 CLR 511. A case founded on vicarious liability is also pleaded. 18 I have closely observed both the plaintiff and his mother during the giving of their respective oral evidence. In assessing questions of credibility and reliability, I have had regard both to demeanour and evidence. 19 The plaintiff was not an impressive witness. He presented as being evasive. His answers were replete with expressions of lack of recollection. This presentation seemed to be inconsistent with the detailed recollection expressed in his affidavit. He gave supplementary oral evidence that was in part erroneous. 20 He gave the following supplementary evidence:- Q. Just a couple of other matters. When did you first learn of complaints by Errol Smith? A. Never. Q. By Sue Ware? A. Couple of months. Q. Who told you about Sue Ware's complaint? A. My lawyer. Q. That's Mr Robert Mooy? A. Actually I heard it from my mother actually, sorry. Q. And did that follow some discussion between her and Mr Mooy? A. Yes. Q. What about the complaints by Jeanette Osmond and Pam Johnstone? When did you learn about those? A. Less than a year. Q. Less than a year before now? A. That is correct. Q. When did you first find out that other children other than you and - - had been molested? A. Could you please repeat that one? Q. When did you first learn that other children, that is, other than you and - - had been molested by Mr Bambach? A. Day or two ago. Q. When did you first find out that Mr Bambach had been convicted for similar offences in 1962? A. 48 hours ago. Q. Who told you about those matters? A. Robert Mooy. 21 Certain of this evidence was in conflict with the history rendered by a psychologist (Wendy Roberts) in a report dated 21 August 2003. In my view, by that time he had become aware of another complaint of sexual molestation made against the first defendant. His cross-examination reveals a concession at least to the extent that part of the oral evidence may have been mistaken. 22 Counsel for the plaintiff says in relation to the challenge to his client's credibility that he demonstrated no more than truculence during his evidence. Whilst I do not accept that submission, it seems to me that when regard is had to the totality of the evidence the relevant threshold requirements have been met. 23 A challenge was also made to certain of the given by the plaintiff's mother. In mounting this challenge, counsel for the second defendant relied on documentation contained in Exhibit 1 (the two pages following the heading "Addendum"). This was a document produced by the second defendant in response to a subpoena. The addendum is dated 28 August 1990. The addendum purports to be a document prepared by Sister Annetta Llewellyn recording her version of conversation had with the plaintiff's mother. It contains the following:- Mrs Lloyd also stated that both the parish priest and the previous principals of the school had known about Mr Bamback's [sic] behaviour on previous occasions and no-one had done anything about it. 24 The plaintiff's mother vehemently denied that such a matter had been discussed with the sister. The second defendant did not call Sister Llewellyn. It is not said that she was unavailable to give evidence. In the circumstances, I prefer the sworn evidence of the plaintiff's mother in this matter. 25 In 1962, the first defendant came before the District Court in respect of charges of indecent assault involving five different boys. The allegations made against him were similar to the allegations of touching incidents made by the plaintiff. The first defendant pleaded guilty in respect of three counts of assault. 26 He came to work in the Catholic school system in 1974. His application for employment was accompanied by three references (from Father Driscoll, John McQualter and Walter Anthony Gerard Enright). There is material in the references that carries the implication that there had been past problems. 27 On 16 February 2005, the plaintiff received an affidavit sworn by the first defendant on that day. He had been subpoenaed by the plaintiff to attend and give evidence. 28 There is material before the court that indicates that the first defendant underwent bowel cancer surgery on 12 January 2005 and that he is presently unable to travel to Sydney to give evidence. 29 The affidavit of 16 February 2005 contained the following:- 2. At about that time I was interviewed by Monsignor Dilley who I understood to be the Director of Catholic Education in Newcastle. During the interview I said words to the following effect: "I have a previous conviction for sexual assaults on boys whilst I was a teacher in the Public Education system at the Stroud School. That was in about 1962. I was dismissed because of that." Monsignor Dilley said: "Yes. I am aware of that." 3. Some days later I had a further interview with Father Coolahan (who subsequently became Monsignor Coolahan) who I understood was preparing to take over from Monsignor Dilley. During that interview I said to Father Coolahan words to the following effect: "I have a previous conviction for sexual assault in about 1962. As a result of that I have been dismissed from the Education Department. You are aware of that." He said: "Yes". 30 The second defendant did not seek any adjournment to enable the first defendant to be present for the purposes of cross-examination. It dispensed with any requirement for him to attend for cross-examination. The affidavit was admitted into evidence over the earlier objection of the second defendant. 31 It appears from material relied on by the plaintiff that when the first defendant had been at another school (prior to his employment at St Michael's) he had received a warning concerning matters similar to certain of the assaults involving the plaintiff. 32 In 1986, the second defendant had received a complaint from Errol Smith concerning children, inter alia, sitting on the first defendant's knee during class. 33 In 1987, there was a further complaint (from Sue Ware) concerning the first defendant engaging in inappropriate behaviour with children in his class (involving children, inter alia, sitting on his lap and of him touching them). 34 Later in 1987, there was further complaint (from Jeannette Osmond and Pamela Johnstone). The complaints were of a similar nature. 35 Prior to the assaults on the plaintiff, earlier in 1988, the plaintiff's mother made complaint concerning the giving of inappropriate gifts to her son. 36 It is the material that I have just mentioned that the plaintiff says that he relies on to establish breach of duty of care. 37 It is the plaintiff's case that this information did not come to his personal knowledge until after the expiry of the relevant limitation period. It is propounded that the information has only progressively come to light in the period since the plaintiff first consulted his solicitors in 2002. In my view, such a case is made out by the evidence and, as earlier mentioned, I am satisfied that the plaintiff has met the threshold requirements of s60I. 38 The only discretionary consideration that has been litigated is that of prejudice. It is said that the delay has brought about a situation where a fair trial can no longer take place. 39 There has been investigation of touching incidents. The first defendant was dismissed by the second defendant and charges (to which he pleaded guilty) were brought in relation to such incidents. 40 The allegation of anal intercourse has not been investigated. The plaintiff and the first defendant may be the only persons who can give evidence concerning it. The first defendant may choose not to give evidence on the matter. The evidence given by the plaintiff as to the sexual assaults (which is to be found in his affidavit sworn on 21 May 2004) was not challenged by the second defendant. 41 That there will be presumptive prejudice is not really in dispute. The relevant events took place a long time ago. 42 Largely, the acts and omissions relied on by the plaintiff will be the subject of proof by documentary material. He will be looking to material that has been produced by the second defendant. 43 The second defendant has led evidence of the deaths of Mr McQualter, Monsignor Dilley, Father Driscoll, Monsignor Coolahan and Mr Enright. Mr McQualter died in 1979. Monsignor Dilley died on 8 November 1984. Father Driscoll died in 1987. Mr Enright died in 1991. Monsignor Coolahan died on 27 August 2000. 44 The employment file of the second defendant may now be unavailable. This does not seem to me to be a matter of significance. 45 Whilst the three deceased persons who provided the references which may have led to the first defendant's employment are lost to the second defendant, the references remain available. It may be that none of the three deceased persons could have been any further assistance to the second defendant in meeting the plaintiff's case. 46 The plaintiff contends that the lapse of time does not cause the second defendant any difficulties. It is said that it did not conduct investigation into the material it had concerning the first defendant, it had the opportunity to do so and should not be now heard to complain. 47 What is disclosed by the affidavit of the first defendant may not be in dispute (other documentation provides support for that view). If it is, this material merely comprises but a part of the many pieces of evidence that will be relied on by the plaintiff to establish the alleged acts or omissions. 48 The material produced by the second defendant reveals the involvement of other persons (including Raymond Kelly, Sister Llewellyn, Walter Pleasant and Sister Kathleen Williams). The second defendant has not produced evidence demonstrating the unavailability of any of these witnesses. 49 It seems to me, when regard is had to the relevant circumstances of this case, that a fair trial can still take place. 50 After deliberating upon the relevant matters, I have decided that it is just and reasonable to make an order and that an order extending time should be made. 51 Accordingly, I extend the limitation period for the causes of action pleaded in the statement of claim up to and including 11 December 2002. The question of costs is reserved. 52 During the course of his submissions, counsel for the second defendant raised the matter of whether or not this Court should refer the matters concerning of the anal intercourse for further action. I have come to the view that the papers should be referred to the Prothonotary. He can then consider the question of whether or not the matter should be referred to the appropriate authorities. The exhibits may be returned thereafter. ********** 23/02/2005 - Typographical error in judgment heading - Paragraph(s) Heading 01/03/2005 - Typographical error - Paragraph(s) 3, 20 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.