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Supreme Court 29 October 2007

Rich v Kitchingman & Anor

[2007] NSWSC 1206

Sexual offences
PRACTICE AND PROCEDURE PLAINTIFF SEXUALLY ASSAULTED AS CHILD WHETHER SAME ISSUES WOULD ARISE EXAMINED AT TWO HEARINGS

Citation: Rich v Kitchingman & Anor [2007] NSWSC 1206
Court: Supreme Court of New South Wales
Date: 29 October 2007
Judge(s): Hoeben J

Background

The plaintiff brought proceedings against two defendants, alleging he was subjected to sexual and physical assault by the first defendant, an individual, during 1975 and 1976. The second defendant, the Anglican Church Diocese of Sydney, had already settled its involvement in the proceedings. The first defendant had previously pleaded guilty in 2002 to five counts of indecent assault and served a custodial sentence.

The proceedings were filed in July 2006, well outside the ordinary limitation period. The plaintiff intended to rely on provisions of the Limitation Act 1969 (NSW) to overcome the anticipated limitation defence. His expert evidence indicated he had suffered post-traumatic stress disorder, depression, and a borderline personality disorder, attributed at least in part to the assaults, and that for approximately 30 years he had been substantially impeded in managing his affairs by reason of his mental condition.

The procedural question before Hoeben J was whether the limitation issue should be resolved at the same time as the final hearing, or whether it should be dealt with as a separate preliminary hearing.

  • Whether the limitation extension application under ss 52 and 60G of the Limitation Act 1969 (NSW) should be heard at the same time as the final trial, or at a separate preliminary hearing.
  • Whether the plaintiff would face undue hardship if required to give evidence and be cross-examined at two separate hearings.
  • Whether the issues in the limitation hearing and the final hearing overlapped sufficiently to justify a joint hearing.
  • Whether the requirements of s 56 of the Civil Procedure Act (just, quick, and cheap resolution) favoured a combined or separate hearing.

Decision

Hoeben J declined the plaintiff's application to have the limitation question determined concurrently with the final hearing. His Honour found there was no substantial overlap between the issues in the two hearings. The limitation hearing would focus on whether the plaintiff could access the statutory gateways and establish the relevant disability under the Limitation Act, while the final hearing would address causation and damages.

The court accepted the first defendant's submission that running both hearings together created a real risk that the distinct legal questions would become conflated. It would be difficult, the court reasoned, to argue prejudice relevant to the limitation question while simultaneously conducting a trial on the merits.

On the plaintiff's hardship argument, Hoeben J found it had limited force in the circumstances. Cross-examination at the limitation hearing on the matters most distressing to the plaintiff, namely the details of the sexual assaults themselves, would not be relevant to the issues at that stage and would almost certainly be disallowed.

Applying the overarching objective in s 56 of the Civil Procedure Act (just, quick, and cheap resolution of real issues), the court concluded that a separate limitation hearing was the more efficient course. If the plaintiff failed at that stage, no court time would be expended on causation and damages. If he succeeded, the final hearing was likely to be relatively straightforward given the first defendant's guilty plea and conviction.

Orders Made

  • The plaintiff's application that any limitation questions be dealt with at the same time as the final hearing was declined.
  • The question of costs of the application was reserved.

Key Takeaways

  • A court may refuse to consolidate a limitation extension hearing with a final trial where the two hearings raise materially different issues and conflating them risks confusion of the distinct legal questions involved.
  • Where a plaintiff's case on liability is substantially established by a defendant's prior criminal conviction, the more contested and consequential hearing may well be the limitation hearing rather than the trial on the merits.
  • The principle of just, quick, and cheap resolution under s 56 of the Civil Procedure Act can support holding a limitation hearing separately, particularly where a failure at that preliminary stage would make a full trial unnecessary.
  • Hardship arguments based on a plaintiff being cross-examined twice carry less weight where the cross-examination at the preliminary hearing would be confined to issues relevant only to that hearing, excluding the most distressing factual matters.
  • Under s 52 and s 11(3)(b) of the Limitation Act 1969 (NSW), a person may establish disability sufficient to suspend the running of a limitation period by demonstrating a continuous period of at least 28 days of incapacity or substantial impediment in managing their affairs, by reason of a disease or impairment of mental or physical condition.

Legislation and Cases Referenced

Legislation:
- Limitation Act 1969 (NSW), ss 11(3)(b), 52, 60G
- Civil Procedure Act 2005 (NSW), s 56

Cases:
- State of NSW v Harlum [2007] NSWCA 120