Wilson v State Rail Authority of New South Wales & Anor [2007] NSWSC 1280

New South Wales Supreme Court

CITATION : Wilson v State Rail Authority of New South Wales & Anor [2007] NSWSC 1280

HEARING DATE(S) : 16/08/2007; 08/11/2007

JUDGMENT DATE : 13 November 2007

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Malpass

DECISION : I have come to the decision that it would be just and reasonable to grant an extension of time and that the Court should do so. The parties are to have liberty to apply. Costs should presently be reserved.

CATCHWORDS : Extension of time - sexual assaults by fellow employee - threshold requirements and requirements of s. 60G

LEGISLATION CITED : Limitation Act 1969 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Michael Allen Wilson (Pl) PARTIES : State Rail Authority of New South Wales (1st Def) Robert Arthur Reardon (2nd Def)

FILE NUMBER(S) : SC 12884/06

Mr S. Littlemore QC / Mr M. Snell (Pl) COUNSEL : Mr P. Garling SC / Ms K. Morgan (1st Def) (16/8/07) Mr P. Garling SC / Mr R. Gambi (1st Def) (8/11/07)

SOLICITORS : Carroll & O'Dea (Pl) Astridge & Murray (1st Def)

- 10 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

13 NOVEMBER 2007

2006/12884 Michael Alan Wilson v State Rail Authority of New South Wales & Anor

JUDGMENT 1 HIS HONOUR: These proceedings were commenced by summons filed on 15 June 2006 (earlier proceedings were discontinued). There are two defendants. The first defendant is the former employer of the plaintiff. The second defendant is a former fellow employee. The relief sought is an extension of the relevant limitation period pursuant to the Limitation Act 1969 (NSW) ("the Act"). The provisions relied on are ss. 60G and 60I. 2 The plaintiff was employed by the first defendant during a period from about 4 August 1981 to 13 January 1983 (when he procured his own dismissal). He was then 15 – 16 years of age. His father was also then an employee. 3 It is the evidence of the plaintiff that during his period of employment he was subjected to sexual assaults by the second defendant (who has been described as a serial offender). The assaults involved groping, oral sex, masturbation and anal rape. They were committed both at the workplace and elsewhere (including in the second defendant's vehicle and at his home). 4 It is also contended that the second defendant molested other employees. There is evidence from the plaintiff that, inter alia, he saw the groping of other employees during the period of his employment. 5 A proposed statement of claim is in evidence. It is proposed to sue the first defendant on a cause of action founded in negligence. It is proposed to sue the second defendant in respect of the assaults. The plaintiff's claim is for psychiatric injury resulting from the assaults. 6 The hearing commenced on 16 August 2007. On that day, the first defendant appeared to defend the application. The second defendant did not appear. 7 The hearing proceeded to a part-heard stage only on that day (the evidence then available to the plaintiff was led). It was then adjourned on the application of the plaintiff to enable the obtaining of evidence on the question of the viability of his proposed claim against the first defendant. 8 The Summons was specially fixed for further hearing, to take place on 8 November 2007. On that day, arrangements were made by the plaintiff for the second defendant to be in Court (he was produced from prison). He was present in Court for the remainder of the hearing. Whilst he did address the Court on certain matters, he did not participate in the conduct of the proceedings in any real sense. He took the position of submitting to whatever decision was made by the Court. 9 On that day, the Court received further evidence (there was a further affidavit sworn by Mr Algie, together with cross-examination and re-examination of the plaintiff). 10 A substantial body of material has been placed before the court (including a detailed affidavit affirmed by the plaintiff on 6 September 2006). It is unnecessary to repeat much of the detail that appears in such material. I propose to address the issues that have been raised between the parties and to refer to certain of the detail that is relevant to those issues. 11 The relevant limitation period expired on 10 April 1990 (six years after the plaintiff's eighteenth birthday). There is no dispute that the proposed cause of action accrued prior to 1 September 1990 and that the application for extension of time is governed by the provisions of ss. 60G and 60I of the Act. 12 Section 60G enables the court to extend the relevant limitation period, if it decides that it is just and reasonable to do so. The Act prohibits a court from making an order under s. 60G unless it is satisfied of the matters listed in s. 60I. These have been referred to as threshold requirements. Section 60I is in the following terms: "60I Matters to be considered by court