AB v State of Queensland & Anor [2021] QDC 171

DISTRICT COURT OF QUEENSLAND CITATION: AB v State of Queensland & another [2021] QDC 171 PARTIES: AB (Applicant) v STATE OF QUEENSLAND (First Respondent) AND LIFE WITHOUT BARRIERS (ACN 101252171) (Second Respondent) FILE NO: 585/21 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: Brisbane District Court DELIVERED ON: 22 July 2021 DELIVERED AT: Brisbane HEARING DATE: 22 July 2021 JUDGE: Porter QC DCJ ORDERS: 1. The Application is dismissed. 2. The applicant pay the first and second respondents’ costs of the Application on the standard basis, including costs reserved by Rinaudo DCJ AM on 4 May 2021. CATCHWORDS LIMITATIONS OF ACTION - PERSONAL INJURIES - EXTENSION OF TIME - application for order pursuant to s. 31 Limitations of Actions Act 1974 that the period of limitation be extended - where the plaintiff applicant claims against the first and second defendants in negligence for personal injury and consequential loss - where the plaintiff applicant suffered nervous shock following the discovery of sexual and physical assaults allegedly suffered by her daughter and allegedly perpetrated by a young man who had been placed in the plaintiff applicant’s household pursuant to a foster parent scheme administered - whether the applicant can show that the material fact of a decisive nature relied -- 1 of 22 -- 2 upon was within her means of knowledge prior to the relevant date CASES: Ferrier v WorkCover Queensland [2019] QSC 11 NF v State of Queensland [2005] QCA 110 State of Queensland v Stevenson (2006) 226 CLR 197 Sugden v Crawford [1989] 1 Qd R 683 LEGISLATION: Limitation of Actions Act 1974 (Qld), s. 31 Personal Injuries Proceedings Act 2002 (Qld), s. 43 Uniform Civil Procedure Rules 1999 (Qld), Rule 166 COUNSEL: B. Dooley SC for the applicant M. Zerner for the first respondent G. O’Driscoll for the second respondent SOLICITORS: Shine Lawyers for the applicant Crown Law for the first respondent Colin Biggers & Paisley Lawyers for the second respondent Introduction [1] This is an application by the plaintiff in proceedings 585/21 that the period of limitation for her claim against the first and second defendants in these proceedings be extended to 16 March 2021, pursuant to s. 31 of the Limitation of Actions Act 1974 (Qld) (LAA). That date has been chosen evidently as being a date some days after the filing of her claim and statement of claim in these proceedings. [2] The claim and statement of claim contain a claim against the first and second defendants in negligence for personal injury and consequential loss in the amount of the maximum monetary limit of this Court. The claim, broadly characterised, is one for nervous shock, following the discovery of sexual and physical assaults alleged in the proceedings to have been suffered by her daughter when very young (CD), allegedly perpetrated by a young man (XY) who, at the time, was about 17 and who had been placed in the household of the plaintiff applicant (AB) by the second respondent, Life Without Barriers, pursuant to a foster parent scheme administered by the State of Queensland (the first respondent). [3] An extension of time is required because the acts comprising the alleged negligence of the State of Queensland and Life Without Barriers occurred prior to, and soon after, May 2006. The alleged discovery of the sexual and physical abuse occurred in September 2006. There is no suggestion that the alleged psychiatric injury had not manifested itself within a reasonable time thereafter. -- 2 of 22 -- 3 [4] As the proceedings were commenced in March 2021, the three year limitation period had plainly expired at the time the proceedings were commenced. Judge Rinaudo AM of this Court granted leave to commence the proceedings pursuant to s. 43 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), which is the provision allowing the Court to grant that leave without the completion of the pre- litigation steps. His Honour also required the applicant to apply to extend time, under s. 31 LAA, within 30 days of that order, and there is no suggestion that that did not occur or that, if there was a delay, anybody objects. The Law [5] Section 31 LAA applies, relevantly, to actions for damages for negligence where damages consist of, or include, damages in respect of personal injury. There is no debate that s. 31 is attracted by the action disclosed in the claim and statement of claim. The excitement is in respect of s. 31(2), which provides: 31 Ordinary actions … (2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court— (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly. … [6] There are two substantive matters in dispute: (a) First, whether certain identified material facts contained in reports, unquestionably obtained by the applicant only very recently, were material facts of a decisive character so as to enliven the discretion to extend time under that section; and (b) Second, whether those facts were “not within the means of knowledge of the applicant” up until the time they were discovered, as that phrase has been construed. [7] Each counsel referred to authority in respect of each matter. Mr Dooley SC, who appeared from Sydney by video-link, contended that the correct approach to the knowledge of material facts being ascertainable was that articulated by the Queensland Court of Appeal in NF v State of Queensland [2005] QCA 110: -- 3 of 22 -- 4 [29] It is to be emphasized that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of "all reasonable steps", or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act. This view is supported by the text of s 30(1)(c)(ii) which is, as I have said, in marked contrast to s 30(1)(b). The authorities do not afford conclusive support for this view; but they do not foreclose its acceptance, and it may be noted that in Young v The Commissioner of Fire Service Williams J, as his Honour then was, accepted that a psychiatric condition which prevents an applicant from appreciating the nature and significance of the injury he has suffered was relevant for the purposes of s 30(1)(c)(ii). I note that it appears that this decision was not cited to McGill DCJ in Hopkins. [8] He also referred, in identifying whether there is a material fact of a decisive character, to Ferrier v WorkCover Queensland [2019] QSC 11, relevantly at paragraphs 28, 31, 35, 36 and 37: [28] In the present case, the provision of Dr Campbell’s report containing his opinions does provide a material fact relating to cause of action. The requirement of material facts related to a right of action being of a decisive character has been explained by Macrossan J (as he then was) in Moriarty v Sunbeam Corp Limited as follows: “In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s. 30(b) comes down to: Taggart v. The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19 , 23, 24 and Do Carmo v. Ford Excavations Pty Ltd (1984) 154 C.L.R. 234, 251 per Deane J.” … [31] In Greenhalgh v Bacas Training Limited & Ors Keane JA (with whom Cullinane J and Lyons JA agreed) said: “[21] In Wood v Glaxo Australia Pty Ltd, Macrossan CJ said: The body of evidence which a plaintiff collects, or … his assemblage of 'material facts', will only constitute a 'decisive' collection when an appropriately advised reasonable man in his position is possessed or would, if he had enquired in appropriate fashion, be possessed of what he would regard as reasonable and worthwhile litigation prospects. The policy detectable in this legislation does not suggest that a potential plaintiff with the -- 4 of 22 -- 5 limitation period running against him must necessarily always commence his proceedings when he has no more than a hint of the existence of a necessary link in his chain of proof but, of course, if being at that point he delays he will do so at his peril because he will only subsequently save himself if he can persuade a judge that he did not know enough or would not, even if he had undertaken appropriate enquiries, have known enough to justify commencing proceedings at an earlier time. [22] Whether an action for damages is worthwhile is an assessment which must be made having regard to the expense and risks of litigation. When an assessment of costs, risks and benefits should reasonably have led to a conclusion that an action was worthwhile must be determined having regard also to the plaintiff's previous attempts to overcome any adverse economic consequences of his injuries. These attempts had largely been encouraged by medical opinion; that the plaintiff persisted with these attempts in these circumstance can hardly be said to have been unreasonable. [23] As Thomas JA said in Pizer v Ansett Australia Ltd: In the present case leave was granted to appeal, mainly on the Court's perception that the case was reasonably arguable, and that the effect of the decision would produce significant consequences. In appeals of the present kind, when the material fact concerns the nature and extent of personal injury, questions of degree are necessarily involved. At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it. At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension, and an appeal court could likewise readily correct an erroneous decision. Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff's knowledge and as to whether the reasonable person contemplated by s 30(b), endowed with such knowledge and having taken appropriate advice, would have brought proceedings. Appeals involving extensions of periods of limitation commonly raise these particular issues which involve factual assessments. Although the eventual decision is discretionary the determination of these issues is not. They involve findings of fact and a determination whether those facts satisfy the requirements of the statute. It is worth mentioning however that such findings and determinations are made in an area where different minds might reasonably reach different conclusions. In such a situation the appeal court is not free to decide the question according to its own preference. Unless the judgment reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference. -- 5 of 22 -- 6 [24] I can discern no error of law or fact in the learned primary judge's conclusion that Dr Van der Walt's opinion of 21 June 2006 was a material fact of a decisive character. In my respectful opinion, it was open to the learned primary judge to regard the 21 June 2006 opinion of Dr Van der Walt as providing to the plaintiff, for the first time, unequivocal evidence enabling the plaintiff to prove a level of economic loss which would make an action for damages worthwhile.” … [35] A fact is only within the means of knowledge of an applicant when the steady preponderance of opinion or belief of the person who has taken all reasonable steps to ascertain the fact, would have believed that was so. The test of what reasonable steps had been taken to ascertain a fact is an objective one, but regard must be had to the applicant’s background and understanding. [36] In Healy v Femdale Pty Ltd the Court of Appeal said: “The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one's health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take "appropriate advice" or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.” [37] The Court must determine which knowledge was practically and not theoretically available to an applicant. (Footnotes omitted.) [9] It is convenient also to cite the authorities referred to by the State of Queensland:1 [23] In Sudgen v Crawford, Connolly J wrote, Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s30(b) are satisfied without the emergence of the newly discovered facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of an action.2 … the basic assumption of the scheme is that if both those conditions (30(b)(i) and 30(b)(ii) of the LAA) were already satisfied without the 1 See paragraphs 23 to 26 of the Submissions on Behalf of First Respondent. 2 Sugden v Crawford [1989] 1 Qd R 683 at 685. -- 6 of 22 -- 7 new evidence, its discovery will not warrant an extension of time.3 (emphasis added) [24] A material fact garners a “decisive character” when it enhances the applicant’s prospects of success from a possibility to a real likelihood.4 That is, the newly acquired information makes it sufficient to justify, for the first time, the bringing of an action. In Moriarty v Sunbeam Corporation Limited, Macrossan J (as he then was) wrote, In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously anticipated that he had a worthwhile action to purse and should in his own interests to pursue it.5 (emphasis added) [25] In Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, Macrossan CJ said, The statutory scheme constituted by ss30 and 31 seems to assume that an applicant either may or may not at some earlier time have knowledge of particular matters which are in the category of material facts but he is nevertheless not excluded from the possibility of obtaining an extension of the limitation period if he is not yet (and even if he had made reasonable enquiries and taken advice would not yet be) in possession of some one or more material facts of a decisive character. When some critical knowledge or constructive knowledge of facts is belatedly gained which puts him over the borderline into a position where for the first time he had reasonable prospects and should in his own interests commence his proceedings he may be entitled to his extension…6 [26] In Ferrier, Crow J refers to the decision of Greenhalgh v Bacas Training Ltd, wherein Keane JA (with whom Cullinane J and Lyons JA agreed) said: Whether an action for damages is worthwhile is an assessment which must be made having regard to the expense and risks of litigation. When an assessment of costs, risks and benefits should reasonably have led to a conclusion that an action was worthwhile must be determined having regard also to the plaintiff's previous attempts to overcome any adverse economic consequences of his injuries. (emphasis added) [10] There was, not surprisingly, considerable overlap in the authorities to which counsel referred. I also had regard to State of Queensland v Stevenson (2006) 226 CLR 197, and a related case referred to at paragraphs 17 and 18 of Mr O’Driscoll’s submissions:7 3 Sugden v Crawford [1989] 1 Qd R 683 at 686. 4 Sugden v Crawford [1989] 1 Qd R 683. 5 Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 at 333. 6 (1984) 154 CLR 234 at 437. 7 See paragraphs 17 and 18 of the Submissions on Behalf of the Second Respondent. -- 7 of 22 -- 8 [17] In State of Queensland v Stephenson (2006) 226 CLR 197, the High Court considered three cases on appeal from the Queensland Court of Appeal. In its analysis of the provision, the majority, Gummow, Hayne and Grennan JJ, said: [29] The better view is that the means of knowledge (in the sense given by para (c) of s 30(1)) of a material fact is insufficient of itself to propel the applicant outside s 31 (2)(a). For circumstances to run against the making of a successful extension application, the material must have "a decisive character". Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say, as the plaintiffs submit in their written submissions, that in a sense none of the material facts relating to the applicant's right of action is of a decisive character until a reasonable person "knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing" the features described in sub-paras (i) and (ii) of s 30(1 )(b). Whether that test has been satisfied at a particular point in time is a question for the court. [30] The practical result of this construction is that an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30{1){a)) coincides with the circumstance that a reasonable person with the applicant's knowledge would regard the facts as justifying and mandating that an action be brought in the applicant's own interests (as in s 30(1 )(b)). If this conjunction of circumstances first occurs before the commencement of the last year of the limitation period, no application for an extension can be brought; the applicant has the benefit of at least one year before the limitation period expires and is required to act within that time. If the conjunction occurs after the commencement of that last year, the court is empowered, if the other criteria in s 31 are satisfied, to extend time for one year from the date of that conjunction of circumstances. [18] Later in the majority’s judgment, when considering the case of Wrightson (one of the three respondents), the decision of the primary judge, Helman J, was referred to with approval as follows: [39] ... In the course of his reasons, Helman J spoke of this provision as having a purpose of providing considerations justifying delay in bringing an action. He also said: The plaintiff's case on this application was then that it was only when his application [to accept his resignation on medical grounds] was granted that all of the requirements of a material fact of a decisive character had been satisfied . . . It means that even if a claimant could have instituted a claim earlier than the time when a reasonable person would have regarded the facts as showing that he ought to do so, it is only when the reasonable person would regard the facts as showing that he ought to do so that time begins to run under s 31 (2). [11] The gravamen of the various authorities is to identify whether, without the material fact, an action was not worthwhile in the sense described by the judgments, and whether, with the material fact, it became worthwhile. -- 8 of 22 -- 9 [12] The distinction is drawn between a case which, without the new facts, was worthwhile (that is, an arguable case which can properly be brought), and a case which, without the additional fact, could not properly be brought. [13] It seems to me also that the focus must be on whether a person is in a position, properly advised, to bring a claim which has sufficient prospects, bearing in mind the availability of interlocutory steps. The significance of that will emerge when I consider the facts in this case. AB fosters XY [14] The applicant, AB, was born in 1965. Her daughter, CD, was born in January 2002. In April 2006, she became an approved foster carer by certification from the first respondent. The certification is recorded in her affidavit, which identifies the certification and a foster carer agreement. The foster carer agreement, consequent on the certification, is with a fostering agency (in this case, the second respondent), the relevant staff member being Mr Heath Christie. That document was signed in May 2006. [15] The document identifies, at its fifth page, the characteristics of placements that AB was willing to accept. She was willing to accept a placement of a male or female child, in the age range between 11 and 14. The maximum number of placements she would accept would be two. She indicated considerable flexibility in whether it would be an emergency, long term or short term placement, and considerable flexibility in the type of young people she was willing to care for. Page 6 is important and contained a warning:8 Consideration is to be given to restricting the placement of children/young people who have a history of sexual abuse together with children/young people who do not have a history of sexual abuse (Recommendation 8, Foster Carer Audit Team 2003). [16] She indicates, again with considerable flexibility, that she will deal with children who might have many difficulties. The carveout is in respect of “sexualised behaviour”, where she ticked “maybe” (rather than “yes” or “no”), “self-harming history”, where she ticked “maybe”, and “destructive behaviour of property and violent behaviour”, where she ticked “no”. It is self-evident – and if it is not, it is clear from the evidence – that AB did not have the training for dealing with children who were chaotic or had been involved with sexual abuse or violent behaviour. That is noted at page 10, which identifies that as a training and learning need. It cannot be a coincidence that those training needs are generally linked to the areas about which AB indicated that she had reservations in the form. There is no question about the fact that she did not receive that training at a time relevant to this proceeding. [17] XY was born in December 1988. In May 2006, he was seventeen. This young man became AB’s foster child on 14 May 2006 – very soon after her certification as a 8 See page 8 of the Affidavit of [AB], filed 22 June 2021. -- 9 of 22 -- 10 carer. He lived with her until 1 September 2006. The other people who lived with her included her four year old daughter, CD, and an older daughter. She was caring for them by herself. CD was born in January 2002, so she was about four and a half when the young man came to stay. [18] AB swears that on about 14 May, one or either of the respondents organised for the young man to be placed with her as an emergency placement. She swears that she was told by the second respondent, Life Without Barriers, that his previous placement had broken down, which is why he needed an emergency placement, but she was not told why the placement broke down. [19] As I have said, the young man was the first person placed in her care and he remained in her care until 1 September 2006. She swears that she was a relatively inexperienced foster carer, and that (and it is not disputed) she had not received any training in managing or responding to sexualised behaviours. While the young man was living with her, he exhibited some challenging behaviours. He showed, from a relatively early stage, what AB thought was inappropriately intimate affection for CD, and he spoke in a sexualised way to her other daughter. He also wrote a letter to another nearby girl in a similar vein and described explicit sexual matters to another girl she was briefly fostering. All of this was reported, she swears, to various officers of the second respondent. [20] The end of the relationship happened when AB’s mother disclosed to her that she had observed behaviour between CD and XY that seemed sexualised and suspicious, and he was removed almost immediately from her care. She had a discussion with her mother and CD, and formed the view that XY had been sexually abusing CD. Importantly, she swears (and it is not disputed) that she was not told about any prior sexual behaviours, or inappropriate sexual behaviours or conduct by the young man before he was placed with her. CD made a complaint to the police which was not pursued for reasons I need not go into. AB describes being very distressed about what she believed had occurred and, again, that is not contradicted, at least, in this application. AB consults solicitors on behalf of CD [21] AB went to a well-known support group for people who have had difficulties with issues of sexual abuse, and as a result of their advice, she went to solicitors. In early 2007, she went to see the firm, Nicol Robinson Halletts, with a view to commencing proceedings on behalf of her daughter. One of the facts which she frankly admits she had discovered by the time she went to see her solicitors – or soon after she went to see them – was that shortly after XY was taken out of her care, she was informed by an officer of Life Without Barriers that there had been an allegation that the young man had previously sexually abused his sister. [22] This is an important fact frankly admitted by AB. It is important for two reasons. The first is that it provides context to a number of contemporaneously recorded discussions with doctors and others, and diary notes in which she refers to touching -- 10 of 22 -- 11 or sexual abuse by the young man of his younger sister. To the extent there is any ambiguity in all of those various references in the evidence as to whether AB truly was communicating an understanding that officers of Life Without Barriers knew about such conduct before he was placed with her, this admission removes any doubt. [23] There is also no doubt that AB genuinely believed, and still believes, when Nicol Robinson Halletts prepared her notice of claim, that Life Without Barriers had known about allegations of sexual abuse by the young man of his sister, and that is reflected in the notice of claim prepared by Nicol Robinson Halletts pursuant to the pre-litigation provisions of PIPA. That document was signed on 29 October 2007. It is signed by AB. It contains answers to various standard questions of the kind that are contained in such a form. Most relevant to this case is question 18, which states:9 Attachment 1 18. Detail the reasons why the injured person believes that person caused the incident. • Life Without Barriers placed [XY] with [AB] and her family. • Life Without Barriers knew or ought to have known [XY’s] past behaviours. • As a result, Life Without Barriers should not have placed [XY] at [AB’s] home. • Life Without Barriers failed to inform [AB] of [XY’s] past behaviours. • Life Without Barriers failed to allow [AB] to safely protect her biological children. • Life Without Barriers failed to effectively communicate with the Department of Child Safety regarding [XY’s] past behaviours. • Life Without Barriers were responsible for finding [XY] a foster carer. • Life Without Barriers failed to disclose to [AB] complaints that had been made to the police of a criminal and similar nature. • Life Without Barriers were responsible for finding an appropriate placement for [XY]. • Life Without Barriers did not place [XY] in an appropriate placement. [24] It can be seen from this attachment that the gravamen of the breach case is that Life Without Barriers knew or ought to have known of XY’s past behaviours and should not have placed him in her home, that Life Without Barriers failed to inform AB of the past behaviours (and that had the consequence that AB, as a mother, could not safely protect her biological children), that Life Without Barriers failed effectively to communicate with the Department of Child Safety about the past behaviours, and so on. These past behaviours, it seems to me, looking at the contemporaneous documents and the sworn material, are past alleged sexual abuse by XY of his sister. [25] The notice of claim was served on each of the present respondents. Moray & Agnew responded on behalf of Life Without Barriers. That firm asserted, by letter dated 3 December 2007, that the notice of claim was non-compliant. It set out the particulars of the non-compliance over two pages in what can be fairly described, 9 Page 117 of the Affidavit of Megan Kate Dudley, filed 19 July 2021. -- 11 of 22 -- 12 in my opinion, as a request for particulars of answers to the standard questions in the form. It did not ask for any more particulars of the answers to question 18. [26] Three days later, Crown Law responded on behalf of the State of Queensland with a letter which was in a similar form. It sought particulars of various allegations. It did seek particulars of question 18. However, the information that it asked for, extensive though it was, seemed to focus mostly on matters other than the core proposition that Life Without Barriers had known about previous allegations of sexual abuse and negligently placed such a young person with an inexperienced foster mother (who was equivocal, at best, about such a matter), and without telling her. [27] Nicol Robinson Halletts responded on 21 December 2007, basically saying they would need to take instructions and would respond at the end of January. In the meantime, that firm had sought a report from a psychiatrist, Dr Barbara McGuire. This report was based on an interview with AB, lasting 45 minutes, and a shorter interview with her daughter. A series of questions was posed by Nicol Robinson Halletts focused, not surprisingly, on CD. It is in the nature of the sort of questions which, in my limited experience, seem to be concerned with identifying damages and the scope of impairment. It ended up with three relevant dot points:10 • What [CD’s] allegations are regarding [XY’s] alleged sexual abuse or, if you are unable to determine those allegations, what is the best way to reveal same. [CD] told me that the only bad thing that [XY] had done to her was to lock her out of the house. Because of her age I don’t think particular weight can be placed upon this. • [CD’s] credibility as to the alleged sexual abuse. From my information [CD] has only disclosed to her mother. From the mother’s account it does not appear that she asked the child open questions and I think there is a possibility of tainting. • [AB’s] credibility as to the disclosures made by [CD]. As noted [AB] was a difficult historian who may have some cognitive deficits. She exhibits a high level of personal distress and it is possible that this has coloured [CD’s] presentation and her reported behaviour. It is possibly of significance that the mother describes an attempted abduction and sexual abuse in her own childhood. [28] It can be seen from those dot points that, in at least this doctor’s opinion, CD and AB had significant potential difficulties as witnesses of credit. I pass over whether that is something that the psychiatrist was in a place to express an opinion about, but it was asked by the solicitors. The retaining of the psychiatrist and the obtaining of her report was communicated on 12 February 2008 to the solicitors for the current respondents. That report was provided in March 2008. [29] On 29 April 2011, Nicol Robinson Hallets, now part of Herbert Geer, wrote to AB and said: 10 See page 6 of the Supplementary Affidavit of Megan Kate Dudley, filed 21 July 2021. -- 12 of 22 -- 13 We refer to our previous correspondence in this matter, in particular our telephone conversation with you on 16 March 2011. We have previously advised that the prospects of [CD’s] matter being successful are not favourable, based on both the current evidence and Counsel’s Advice on prospects. Furthermore, we have advised that an informal settlement conference with the Department of Child Safety would be the best option… [30] The next event referred to in the evidence occurred on 23 June 2011, where AB’s solicitors communicated to the respondents’ solicitors that they had been unable to obtain instructions, had withdrawn from acting, and had referred the relevant solicitors to AB personally. [31] Before leaving the first notice of claim process, it is important to recognise two things. The first is that Nicol Robinson Halletts (or whoever they were from time to time) had, by way of evidence before them, a diary kept by AB with some care at the relevant time. That firm also obtained documents on an FOI request provided by the Commissioner of Young People and Children. [32] Relevantly, those notes include a note from 28 March 2007 that the young man was removed from his mother’s place for allegedly touching his sister and was taken to the police. The FOI material revealed, in broad terms, that the Department of Children and Young People had been aware of the issues after the complaint was first made in September 2006 and had made various enquiries about it. Both counsel for the respondents and for the applicant relied on this material, and I think I will come back to it. There is other evidence from around this time reflecting AB’s state of belief in respect of XY’s history, including GP notes at page 34 of the affidavit of Mr Inglis and notes disclosed by Mr O’Driscoll’s client, Life Without Barriers, in the notice of claim process conducted by Nicol Robinson Halletts. [33] That material showed discussions in September, October and December 2006, and January 2007 which, in broad terms, indicate some awareness at Life Without Barriers of the potential for previous offending by the young man. I do not place a great deal of weight on those. The GP notes relating to AB are more compelling. They result on 28 March 2007 in AB telling her GP that XY had been charged for abusing his 13 year old sister. And, in any event, of course, we have the frank statement in the affidavit of AB to which I have already referred. Reports not within the means of knowledge of AB [34] One matter that requires a finding is to do with how and why the process with Nicol Robinson Halletts came to an end. That is important for this reason. The evidence disclosing the material facts of a decisive character relied upon by the applicant was produced in the course of a second PIPA notice of claim process conducted in respect of the proceeding now before me by Shine Lawyers and discussed below. That process moved to a stage of disclosure where two reports were produced, one by a Ms Wemyss and one by a Ms Knox (both for the second respondent), which comprised reviews of the issues relating to the placing of XY -- 13 of 22 -- 14 with AB. Those reviews were carried out in mid to late 2007. They were produced by Life Without Barriers as a result of Shine Lawyers pressing the notice of claim process forward in this case to the disclosure stage of the pre-litigation processes under PIPA. [35] The respondents submit that I should find, on the balance of probabilities, that if the notice of claim process on the first occasion had been pressed ahead with the same vigour, that those reports would have been produced. That is an inference which, in the absence of some reason to think the contrary, I think I should properly draw. There is no reason to think that documents of such central relevance (whether they are material facts of a decisive character is another thing) would not have been produced back then if they were produced now. [36] The significance of that, of course, is that the case of the applicant depends on matters disclosed by those two reports, which are said to have been new matters and to comprise matters which shifted this case from one that was (to use the language of the authorities) not worthwhile to a case that was worthwhile. Even concluding that was so, of course, the discretion would not be enlivened unless it was also established that the information in those reports was not within the means of knowledge of the applicant until the time, in effect, within one year of when she commenced these proceedings. [37] The authorities are said to support the proposition that if the notice of claim process had been properly continued, the documents would have been obtained, and therefore, they were within the means of knowledge of the applicant. I refer to the passage from NF v State of Queensland [2005] QCA 110 above. I will not repeat it here, except to note that it is not to be considered theoretically, but it speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. [38] What this really comes down to then is why the notice of claim process was not pushed ahead on the first occasion. There is, I think, an argument that it was the respondents’ fault that it was not pushed ahead by making assertions about non- compliant notices of claim which could not have been reasonably resolved at the time. There just does not seem to be a reason why that is so, however, if there is a dispute about an assertion of non-compliance, that can be resolved by the Court. [39] It seems to me, on the balance of probabilities, that the reason that the process was not pushed ahead was because of views formed by the solicitors for AB about the prospects of the case. [40] I infer that Mr Dooley SC for AB does not cavil with that conclusion, but asserts that the reasons that that view was reached were in part because of the lack of evidence about the precise way in which Life Without Barriers and the State of Queensland had failed to take reasonable precautions to prevent foreseeable harm, and that that had been addressed by the reports which are the subject of the claim for the extension. -- 14 of 22 -- 15 [41] I disagree with that proposition. I do not think I can positively find that to be so. The evidence I have before me is that the psychologist had reported, rightly or wrongly, that both AB and CD were doubtful witnesses. There is no other evidence on the matter. There is nothing, of course, in the letter explaining their decision. There was supposedly counsel’s opinion, but it was not provided. [42] There is another factor to take into account: in AB’s affidavit, she purports to explain her dealings with Nicol Robinson Halletts and then their successors, but she does not say anything except that Nicol Robinson Halletts did not continue with CD’s claim after a grant of legal aid in June 2008. I am left with no way of being sure why the notice of claim was not pressed in respect of CD, though I find, on the balance of probabilities, that if it had been pressed, these reports would have been produced. [43] However, I also take into account that AB is (I say respectfully) not a sophisticated person, at least in legal matters, and would have left matters in the hands of her solicitors. It seems to me that it would be expecting too much of a person with her characteristics to have actively pressed her solicitors to address issues raised in the notice of claim, in circumstances where they had dropped a case, not because of inaction by AB, but because of their view of the lack of prospects. [44] While I am not willing to infer anything about that which assists in identifying that the facts that were later obtained were material facts of a decisive character, I am also not willing to infer that it had anything to do with their decision not to continue. [45] Equally, in my opinion, it would be unrealistic to think that a person with this applicant’s personal characteristics (again, I say that with respect) had the reports within her means of knowledge in circumstances where obtaining the reports required her to press her solicitors forward to take steps to regularise the notice of claim, despite those solicitors holding the view that the case did not have sufficient prospects to pursue. That is especially so when it must be certain that it was a speculative matter. [46] For those reasons, I am not satisfied that the two reports were within the means of AB’s knowledge before they were extracted by her new solicitors, which brings me to her new solicitors. The second notice of claim process [47] In 2019, AB decided to investigate, again, the possibility of damages – this time for herself personally for nervous shock. She went to her new solicitors. They delivered another notice of claim, again, signed by her and dated 26 August 2019. That document had changed a little over the years, but not a lot. Question 18 in that -- 15 of 22 -- 16 notice of claim still calls on the claimant to detail the reasons why the injured person believed that the respondents caused the incident. That refers to annexure A, which states:11 ANNEXURE A The claimant has been made aware that [XY] had a previous history of sexual and/or other violence prior to his placement with the claimant and her family. [XY’s] history was known or ought to have been known by Life Without Barriers and the State of Queensland. Despite this knowledge, Life Without Barriers and the State of Queensland did not act promptly in notifying the claimant of the risk of harm or take steps to protect the claimant from the risk of harm. Life Without Barriers and the State of Queensland (collectively the Respondents) therefore caused the incident and was negligent in that it: • Failed to disclose to the claimant the full extent of [XY’s] history to the claimant; • Failed to immediately act upon the concerns of the claimant in relation to [XY’s] interactions with [CD]; • Negligently placed [XY] in the claimant’s care when it knew or ought to have known that the placement included a 5 year old child and was at a risk of harm; • Failed to ensure adequate supervision of [XY], particularly when the respondents became aware of [XY’s] interactions with [CD]; • Failed to have in place appropriate measures to ensure the safety of the claimant’s family when it knew or ought to have known of the risk of harm. Furthermore, the Respondents breached the duty of care it owed to the claimant in that once they knew or ought to have known of the risk of harm upon [CD], they failed to take any reasonable steps to protect [CD] from further harm. [48] It is fair, in my respectful view, to characterise annexure A as, again, turning on the discovery that the young man had a previous history of sexual and/or other violence (but sexual violence in particular), that it was known and ought to have been known by Life Without Barriers and the State of Queensland, and despite that, they did not act promptly to notify AB of the risk of harm or take steps to protect her from doing so. And then it goes on and gives particulars of what they failed to do, including to disclose the full extent of the history, to act upon concerns, that I have already covered, that she expressed about XY’s behaviours, putting him in her care when they knew or should have known that a young girl was at risk of harm, and so on. [49] The motivation for that step was originally said to have been that AB discovered from a social media post the fact that XY had allegedly previously sexually abused his sister before being placed with her. AB’s solicitors advanced that as a material fact of a decisive character and, of course, if she had known nothing about such a thing and had just discovered it, that would have been a compelling case. That, however, was not the true position, as AB clearly, on reflection, swore was not the case. 11 Page 40 of the Affidavit of Charmaine Bastin, filed 22 June 2021. -- 16 of 22 -- 17 [50] The fact that the solicitors and AB, in the first crack at asserting a material fact of a decisive character, mis-stepped in that way is not something that I think has any relevance to the assessment of the strength of their second argument, and that arises from the reports of Ms Knox and Ms Wemyss. Those two reports were produced in the second notice of claim process in this case, as I have explained. Those reports, and the evidence they contain, are now relied upon as comprising the material facts of a decisive character, to which I now turn. The reports not material facts of a decision character [51] Mr Dooley SC’s argument about the material facts of a decisive character are clearly stated in paragraph 24 in his outline as being:12 (i) The failure by the second respondent to fully and properly investigate and consider the allegations of sexual behaviour of [XY], this includes the failure by Suzanne Utai (the second respondent’s employee) to properly investigate the history, this is then compounded by the provision of inadequate information to Sandra Smith at the case handover leading to Smith to believe the information was “sound and complete”, at the time [XY] was placed with the applicant on 14 May 2006.13 (ii) The systematic failures of the department (as identified in the Knox report) leading to the placement of [XY] with the applicant and him remaining there.14 [52] When one goes to the reports, it cannot be doubted that they are critical of the conduct of both respondents. The central part of Ms Knox’s report appears under the heading “The Young Person in Care” and continues over the page to the end of the first paragraph stating “The Decision”:15 The Young Person in Care: [XY] was originally removed from his natural family due to ongoing family conflict, long-term dysfunction, scapegoating by his parents, in particular, his father, and minor concerns related to sexualized behaviour with his sister. The sexualized behaviour was minimized because ‘there was little substance to these concerns’ as his sister was often reporting things to get her brother into trouble (case handover notes provided to Sandra Smith by Suzanne Utai and detailed in correspondence dated 3 October, 2006). This information provided to Sandra Smith would be found to be in error. In fact, [XY] had a history of repeated sexualized behaviour since 2000 when sexual acting- out behaviour at school and aggressive verbalizations using the word ‘rape’ were first reported (telephone conversation with Jennifer Kemp, acting-CSO with Inala DCS, on November 16, 2006 in response to questions posed by Maureen Dunn, ROM). In 2001, there was a further incident with inappropriate touching of his sister after which DCS put him on an order. A further incident occurred on May 11, 2005 involving physical aggression towards his sister. An investigation was conducted at this time by Inala JAB and resulted in [XY] voluntarily leaving home on the evening of the incident. He was placed with carer, Lyn Stralow (Information provided by Therapeutic Caseworker, Vanessa Howse). The following day, 12 May, 2005, [XY] was interviewed by Detective Senior Constable Angela McCarthy 12 See paragraph 24 of the Applicant’s Outline of Submissions. 13 RB p67 3rd paragraph. 14 KK pages 70 to 72. 15 See pages 6 to 7 of the External Review by Sunnova Knox in the Affidavit of Charmaine Bastin, filed 22 June 2021. -- 17 of 22 -- 18 regarding the physical aggression and also about possible inappropriate touching of his sister (Information, provided by Vanessa Howse). No charges were laid but [XY] was to attend a Youth Justice Conference. Jennifer Kemp noted that LWB was involved with early intervention with [XY] around 2001 (telephone conversation on November 16, 2006) but that both organizations underwent a change in personnel around this time. DCS experienced a change in caseworkers and LWB had a change in management. According to Sandra Smith, (correspondence dated 3 October, 2006 detailing handover notes) Suzanne Utai was the original Service Options Coordinator for [XY] and his birth parents. Suzanne later transitioned into the role of LWB Care Coordinator. In February 2005, LWB Therapeutic Caseworker, Vanessa Howse, took over [XY’s] case from Suzanne Pauga (Information, provided by Vanessa Howse). Vanessa attended the police interview with Detective McCarthy but explained that there was ‘some confusion about DCS’s involvement in [XY’s] case and issues surrounding funding’ about this time as if her own involvement was also uncertain. DCS provided documentation to LWB, in their original referral, that [XY] required sexual abuse counseling (located retrospectively in [XY’s] LWB file, by Sandra Smith, correspondence dated 3/10/06). Vanessa attempted numerous times to address [XY’s] behavioural issues in therapy, however, her efforts were met with ‘strong resistance and denial’ from XY (Sandra Smith, correspondence dated 15 November, 2006). When [XY’s] placement with Lyn Stralow broke down after 12 months (Sandra Smith, correspondence dated 3 October, 2006) because [XY] was not given age appropriate choices or independence, a decision was made to match [XY] with [AB]. Sandra Smith (correspondence dated 3 October, 2006; p.1) acknowledged that ‘no consideration was given at the time to the earlier behaviour with his sibling as it was not identified as a concern associated with [XY], rather his aggression was highlighted as the primary issue’ by Suzanne Utai in her case handover notes to Sandra (correspondence dated 3 October, 2006 detailing handover notes). Sandra Smith noted (handwritten correspondence to the ROM, dated 27/10/06) that Suzanne Utai dismissed the allegations of sexualized behaviour with his younger sibling as untrue and attributed the accusation to the sister trying to get [XY] into trouble. Sandra Smith implied by this that her own understanding of [XY’s] issues was based solely on the handover information provided to her from Suzanne Utai. This handover information was assumed to be sound and complete. [XY] was placed with [AB] on 14 May, 2006. [53] The most compelling part to which I was referred in Ms Wemyss’ report identifies a list of dot points which she introduces as her “Review”. There, she identifies risk factors which, if occurring in isolation, may not have constituted risk, but if occurring simultaneously, created an environment of high risk. She lists those from pages 26 to 28 of her report. [54] A couple of things should be said about these reports as containing evidence of material facts of a decisive character. The first is that it seems that neither of these report writers know any facts of their own knowledge at all about anything to do with this case. That is not a criticism of them, but they have worked from material which was provided to them. Secondly, their reports then comprise inferences about what that evidence means, amongst other things, for the quality and competence of the process that led to XY being placed with AB. -- 18 of 22 -- 19 [55] Probably the most important part of the reports is that which is identified in Ms Knox’s report at pages 6 and 7. [56] The first is that, not only did the young man have allegations of sexual abuse of his sister standing against him, but he also had a history of repeated sexualised behaviour since 2000, when sexual acting-out behaviour at school and aggressive verbalisations were used, and also that there were allegations about not just inappropriate touching of his sister, but of physical aggression towards her. It is accepted by the respondents that, assuming (as I do) there is evidence to make good the history of repeated sexualised behaviour since 2000, AB had no knowledge and, given my findings, that was not within her means of knowledge. [57] The second is that an employee (who I am very conscious is not here to tell her side of the story) of the second respondent had formed an opinion about the credibility of the sexualised behaviour with the sister, namely, that it was in effect not credible or to be the subject of any real concern, and was untrue and the result of accusations by the sister designed to get the brother into trouble. It is also true that on no view could AB ever have known of those matters. [58] There are also various findings about the poor quality of the process whereby that core information was dealt with by the respondents. Mr Dooley SC contends that those additional facts, taken with the identification of specific ways in which they were not dealt with properly, are, in substance, the material facts of a decisive nature that justified the extension. The heart of what he contends is articulated in paragraph 24 of his submissions. [59] That this material would be useful in prosecuting the case that AB has already pleaded is undoubtedly correct. The real question is whether it changed a case which, without it, was not worthwhile or was not reasonable to bring, properly advised, into a case which was worthwhile and was reasonable to bring. This is not a case where nothing was known that could have sustained credible allegations of breach. So much is clear from the way the breach was articulated in the two notices of claim. [60] So much is also clear from the combination of two pieces of key information. (a) First, AB knew, soon after the young man left her accommodation, that there had been allegations of sexual misconduct against the sister, and that at least the second respondent knew about it; and (b) Second, it was a matter of record that she was equivocal about having a foster child who had any such history, did not have the training for handling any such child and had a household where such a person (even in a context where they were only allegations) was clearly an extremely inappropriate choice, particularly where she was not told about it and given the opportunity to make her own judgment. -- 19 of 22 -- 20 [61] Reasonable minds can differ about these matters but, in my respectful view, on balance, the applicant has not persuaded me that the matters disclosed in the two reports were material facts of a decisive character. They would certainly have been helpful to litigation. But an insight into the case that could, in my respectful opinion, have been pleaded without the reports can be gleaned by looking at the words in which Ms Knox describes the defects in the decision. She says this:16 The Decision: The decision to place [XY] with [AB] and her family was flawed from the outset. First, a young person with a history of sexualized behaviour was matched with a carer who expressed uncertainty about her own willingness to care for a young person with this particular characteristic. Second, the carer expressed concern about the vulnerable age of her daughter and declined placements involving ‘extremely challenging behaviour’. Third, the carer was not informed that [XY] might exhibit sexualized behaviour providing her with an opportunity to refuse to care for [XY] (Foster Carer Agreement). [62] I suspect no one would disagree with those propositions given the apparent facts in this case. But they were prima facie evident from matters known to AB before receiving the reports in any event: (a) First, a young person with a history of sexualised behaviour was matched with a carer who expressed uncertainty about her own willingness to care for a young person with this particular characteristic: Given that AB knew of allegations of sexual misconduct against the boy’s own sister, such knowledge is, in my respectful submission, equivalent to, or not materially different from, knowing of a history of sexualised behaviour; (b) Second, the carer expressed concern about the vulnerable age of her daughter and declined placements involving extremely challenging behaviour: That was evident from the material that had been in place from the beginning and known to AB and her first solicitors; and (c) Third, the carer was not informed that XY might exhibit sexualised behaviour, providing her with an opportunity to refuse to care: If one replaced the words “might exhibit sexualised behaviour” with “might have sexually abused his sister in his past”, one can see exactly the same flaw identified. As I have said, reasonable minds can differ about these points, but ultimately, it seems to me that there was plainly a case that could have been pleaded and should have been pleaded, and not pleading it was to court the risk of having to persuade the Court, as Justice Helman said, that to not do so was justified. [63] There is another matter I should deal with, that is, the FOI material. Now, both parties took me to the FOI material. Mr Dooley SC, who I say, with respect, argued the matter persuasively and with determination for the applicant, took me to various parts of the FOI documents that demonstrated that this understanding, of 16 See page 7 of the External Review by Sunnova Knox in the Affidavit of Charmaine Bastin, filed 22 June 2021. -- 20 of 22 -- 21 what might be said to be exactly how the procedures went wrong, was the nub of the case. He referred me, for example, to pages 11 of 22 of the FOI, where under the notation “assessment”, this comment was made:17 Information from LWB is required to determine whether negligence has occurred and what practices have been implemented to ensure carers are advised of children’s behavioural history prior to agreeing with the placement of that child. [64] He argued that this was the nub of it, and in the absence of information which allowed the determination of whether negligence had occurred, there were material facts of a decisive character missing. While one cannot cavil, as I have said, with the observation by the note maker, I think there was more than adequate evidence to plead a case, and if that had been done with skill in light of the compulsory pleading requirements of Rule 166 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), I think, first of all, an admission would have been obtained that Life Without Barriers and the State of Queensland knew of the allegations of sexual abuse, and secondly, an admission would have been obtained that they did not tell AB about it, and so on and so forth. [65] Mr O’Driscoll referred to another page of the material at page 47 of Ms Dudley’s affidavit, where this appears:18 …Resp[o]nse received from Team Leader indicates that LWB was aware of the young person’s sexualised behaviours, and the risk of placement with a LWB carer that had a young child, that was subsequently sexually abused. - It appears that LWB in combination with the DCS have been negligent in conveying this information to the carer, and neither party appear to want to accept some responsibility for this harm occurring. - It is vital that LWB continue to support the LWB carer through the provision of conselling etc… [66] He submits that this material was in the hands of the previous solicitors, and I do not understand that to be contentious. It is only a few lines, but, again, in a document of this kind, I think it would plainly be a sufficient basis to plead an allegation in those terms. And it is to be noted that that statement goes beyond merely the allegation of abuse of the sister and refers broadly to sexualised behaviours, and it would not take much cunning in the pleading to have turned that into a disputed issue and to obtain all sorts of disclosure about it. [67] Accordingly, although these reasons do not suggest that anyone in particular involved in this sad story has done the wrong thing, the fact is that, as has been said in many cases, limitation periods are there for a reason, and a good reason has to be given to extend them. The onus lies on someone seeking an extension under s. 31 LAA to make out each of the preconditions to that entitlement. [68] I should observe that it was not contended that any of the other elements were not met by the application, that is, that there was an arguable case on the material before the Court, nor was there (understandably I think) an argument advanced in 17 See page 32 of the Affidavit of Megan Kate Dudley, filed 19 July 2021. 18 See page 47 of the Affidavit of Megan Kate Dudley, filed 19 July 2021. -- 21 of 22 -- 22 reliance on the South Brisbane Hospital’s line of authority, given the excruciating documentation of what went on at the time. However, success on some elements is not enough when success on all elements is required, and with respect to the contrary argument, I am not persuaded that I should make the orders and, therefore, dismiss the application. [69] I will order the applicant to pay the first and second respondents’ costs of this application on the standard basis, including the costs reserved by his Honour Judge Rinaudo AM on 4 May 2021. -- 22 of 22 --