Roger Paramasivam v Vincent John Adam Flynn [1998] ACTSC 158 (2 March 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   GALLOP J

  

  

   LIMITATION OF ACTIONS
- proceedings for breach of fiduciary duty - whether
fiduciary duty existed - examination of relationship between plaintiff and
defendant
- no fiduciary relationship.

  

   LIMITATION OF ACTIONS - application for extension of time - substantial
delay - whether just
and reasonable to allow extension in relation to
incidents in Fiji, Australian Capital Territory and New South Wales.

  

   SUMMARY
JUDGMENT - whether good defence on the merits and whether action
should be finally disposed of summarily - all causes of action statute
barred
- summary judgment ordered.

  

   Supreme Court Act 1933 (ACT), s26

   Supreme Court Rules (ACT), O17r1

   Limitation Act 1985 (ACT), ss11, 33, 36

   Limitation Act 1969 (NSW), ss14(1), 60G, 60I

   Limitation Act 1978 (Fiji), s4(1)

  

   Brisbane South Regional Health Authority v Taylor [1996] HCA 25;  (1996) 186 CLR 541,
applied

   S & B Pty Ltd Podobnik  [1994] FCA 1433; (1994) 53 FCR 380, applied

   LAC Minerals v International Corona Resources Ltd 61 DLR (4th) 14,
considered

   US Surgical Corp
v Hospital Products Int Pty Ltd (1982) 2 NSWLR 766,
applied

   Vincent Raymond Jones v The Queen, (High Court of Australia, Brennan
CJ, 2
December 1997, unreported), discussed

   Kelleher v R [1974] HCA 48;  [1974] 131 CLR 534, applied

   A v D (Supreme Court of the ACT, Miles CJ, 20 September 1995, unreported),
considered

   Hospital
Products Ltd v United States Surgical Corporation [1984] HCA 64;  (1984) 156 CLR
41, applied

   Koumourou v The State of Victoria (1991) 2 VR 265, followed

   Draken Cole Pty Ltd v Drain (NSWCA,
9 August 1995, unreported), applied

   Stinson v Trustees of Marist Brothers (unreported decision, Master Malpass,
8 September 1995,
applied

  

  

   CANBERRA, 21 April 1997 (hearing), 2 March 1998 (decision)

   #DATE 02:03:1998

  

   Appearances

  

   Counsel
for the Plaintiff: Mr S Walmsley

   Instructing solicitors: Bernard Collaery & Associates

  

   Counsel for the Defendant:
Mr J Campbell, QC with Mr R Livingston

   Instructing solicitors: Gillespie-Jones & Co as agents for

   Eakin McCaffey Cox

  

  

  

   Order:

   1. The plaintiff have leave to amend the statement of claim so as to add a
claim for equitable compensation.

   2. The application for an extension of time be refused.

   3. There be summary judgment for the defendant.

  

  

  

   GALLOP
J

  

   1. This is an application for an extension of time, pursuant to s36(2) of
the Limitation Act 1985 (ACT) (the Act), in which to commence an action for
damages for breach of fiduciary duty and/or actionable assault against the
defendant.
The fiduciary duty is alleged to have arisen out of the
guardian/ward type relationship that allegedly existed between the parties.

  

   2. The writ of summons based on a cause of action arising in 1976 was
issued on 23 April 1996. The defendant filed a defence
on 25 October 1996 and
an amended defence on 22 April 1997 pleading, inter alia, that the action had
been commenced more than six
years after the cause of action accrued and was
barred by virtue of, (a)Limitation Act 1985 (ACT), s11(1) (b)Limitation Act
1969
(NSW), s14(1) (c)Limitation Act 1978 (Fiji), Chapter 35, s4(1).

   3. Section 11 of the Act prescribes a general limitation period
of six
years for all civil causes of action. A threshold question is whether it
embraces actions for breach of fiduciary duty. DOES
THE ACT BAR EQUITABLE
CLAIMS?

   4. Section 11 reads, "(1) Subject to subsection (2), an action on any cause
of action is not maintainable
if brought after the expiration of a limitation
period of 6 years running from the date on which the cause of action first
accrues
to the plaintiff or to a person through whom he or she claims.

  

   (2) Subsection (1) does not apply to a cause of action in
respect of which
another limitation period is provided by this Act."

   5. The section does not by its terms exclude actions in
equity. Construed
literally, it sets a limitation period which is quite general for all civil
causes of action, including both assault
and breach of fiduciary duty.

  

   6. By definition "action" includes any proceeding in a court. Likewise
"cause of action" means
the fact or combination of facts that gives rise to a
right to bring a civil proceeding.

  

   7. The wording of s11, when read
in the light of the definitions, is quite
clear and unambiguous. There is no room to read it down or limit it in any
way. It follows
that the Act establishes a six year limitation period for
actions for breach of fiduciary duty. Insofar as the authors of "Equity
and
Trusts" (Dalpont & Chalmers) suggest (at p556-7) that the Act does not bar
claims for equitable relief, they are wrong, in
my opinion. The error is
repeated in "Laws of Australia" Vol 15 at p23.

  

   8. Likewise it is not necessary to discuss what has
been said by the
learned authors of "Equity Doctrines and Remedies" (3rd Ed.) (at par 3414)
about state legislation not barring equitable
claims, clearly they are not
referring to the operation of the Act. Counsel for the plaintiff virtually
conceded that the texts deal
with the subject of true limits for equitable
relief in a general way and do not purport to define the scope of the Act.

  

  
9. Senior Counsel for the respondent, whilst relying on the terms of s11,
also referred to other provisions of the Act which show
an intention to deal
with matters which are in the exclusive jurisdiction of equity (see, for
example, s6).

  

   10. If the Act
does apply, the plaintiff relies on an alternative argument
that the plaintiff's case is one of fraud and concealment and the limitation
period does not run by reason of the operation of s33 of the Act, which reads,
"33(1) Subject to this section, where -

  

   (a)
there is a cause of action based on fraud or deceit; or

  

   (b) a fact relevant to a cause of action or the identity of a person
against whom a cause of action lies is deliberately concealed,

  

   the time which elapses after a limitation period fixed by
or under this Act
for the cause of action commences to run and before the date on which a person
having (either solely or with other
persons) the cause of action first
discovers, or may with reasonable diligence discover, the fraud, deceit or
concealment, as the
case may be, does not count in the reckoning of the
limitation period for an action on the cause of action by him or her or by a
person claiming through him or her against a person answerable for the fraud,
deceit or concealment.

  

   (2) Subsection (1) has
effect whether the limitation period for the cause
of action would, but for this section, expire before or after the date
mentioned
in that subsection.

  

   (3) Without derogating from the generality of subsection (1), deliberate
commission of a breach of duty
in circumstances in which it is unlikely to be
discovered for some time amounts for deliberate concealment of the facts
involved
in that breach of duty."

  

   11. Senior Counsel for the defendant complained that fraud had not been
pleaded. Counsel for the
plaintiff conceded that it had not. What then
followed was an acceptance that the plaintiff would have to plead fraud in
order to
raise it at trial, see Banque Communicable SA (in liquidation) v
Akhil Holdings  [1990] HCA 11; (1990) 92 ALR 53. I note also that there is serious dispute
about whether this is a case of fraudulent concealment, which makes
it even
more inappropriate to consider the operation of s33. Whether time has been
suspended by operation of s33 will have to be
determined on the facts
established at trial. But if s33 applies, time has not been running at least
for the full period since the
alleged cause of action arose and it would not
be statute-barred. Hence no extension of time would be necessary. On this
application
for an extension of time I do not consider it appropriate to
decide whether time has been suspended for any part of the relevant
time by
reason of the operation of s33 in the absence of fraud being pleaded. DOES THE
PLAINTIFF NEED AN EXTENSION OF TIME PURSUANT
TO S36?

   12. I have already decided that the plaintiff's claim for equitable relief
falls within the time limit prescribed by
s11 of the Act. The defendant
submitted that as the plaintiff's claim is for equitable compensation it does
not come within the scope
of s36. Section 36 confers on the court the
discretion to extend time. It is apparent from its terms that for s36(1) to
have any
operation, the action must be one for damages which must consist of
or include damages in respect of personal injuries to any person.
It was
submitted on behalf of the defendant that insofar as the plaintiff's claim is
one for damages for the tort of trespass or
assault it is an action for
damages and comes within the operation of s36; insofar as it is a claim for
equitable compensation, it
does not come within the operation of s36 and
accordingly the court has no power to extend the time period in relation to
the fiduciary
claim. It was submitted that if the court were minded to extend
the time period for the tort claim it would need to require the amendment
of
the statement of claim to exclude the fiduciary claim as a condition of the
granting of extension.

  

   13. "Damages" are not
defined in the Act. A claim for equitable
compensation arising out of a breach of fiduciary duty, where the breaches are
alleged
to have caused psychiatric problems, can only be compensated in money
and that compensation is called equitable compensation. There
seems to me to
be no reason why the legislature would have intended to exclude such a claim
from the operation of s36. The word "damages"
in s36 should be construed in a
generic way. Accordingly, the plaintiff's prayer for relief for breach of
fiduciary duty, described
as damages but really a prayer for equitable
compensation, falls within s36 and there is power to extend time in respect of
that
claim. I reject the defendant's submission to the contrary. Before going
to the matters which touch upon the discretion to extend
time under the ACT
law, it should be noted that the parties agree that it is the ACT law of
limitations which applies to the incidents
in Fiji as well to the incidents in
the Australian Capital Territory.

  

   14. In deference to counsel's arguments I refer to
the decision of the NSW
Court of Appeal in Williams v Minister, Aboriginal Land Rights [1999] NSWSC 843;  (1994) 35 NSWLR
497 where Kirby P held (at p509) that s60G of the Limitation Act 1969 (NSW),
which provides for extensions of time in respect of statute-barred claims,
does not apply to causes of action for equitable
relief. Priestley JA was in
general agreement. Powell JA dissented.

  

   15. I do not find the decision of any real assistance
in the true
construction of the Act. Kirby P there construed a provision quite different
in terms from s36 of the Act and held that
the principles of equity had been
preserved in the NSW Act. DISCRETION TO EXTEND TIME UNDER THE ACT LAW

   16. By amending notice
of motion dated 10 January 1997 and filed on 22
April 1997, the defendant sought leave to apply for summary judgment on the
basis
that he has a good defence to the claim and that the action is
statute-barred by reason of the above provisions.

  

   17. The
hearing of the motions was conducted on affidavit evidence and oral
testimony of the plaintiff. The defendant's solicitor also gave
oral evidence.
It was common ground that the plaintiff bears the onus of establishing that it
is just and reasonable to extend the
time, having regard to the circumstances,
including the criteria enumerated in s36(3) of the  [1996] HCA 25; Act ( Brisbane South
Regional Health Authority v Taylor (1996) 186 CLR 541; S & B Pty Ltd v
Podobnik [1994] FCA 1433;  (1994) 53 FCR 380).

  

   18. Section 36 reads,

  

  

   "36(1) This section applies to any action for damages where the damages
claimed consist of or include damages in respect of personal injuries to any
person.

  

   (2) Where an application is made to
a court by a person claiming to have a
cause of action to which this section applies, the court, subject to
subsection (3) and after
hearing such of the persons likely to be affected by
that application as it sees fit, may, if it decides that it is just and
reasonable
so to do, order that the period within which an action on the cause
of action may be brought be extended for such period as it determines.

  

   (3) In exercising the powers conferred on it by subsection (2), a court
shall have regard to all the circumstances of the
case including (without
derogating from the generality of the foregoing) the following:

  

   (a) the length of and reasons for
the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to
be prejudice
to the defendant; (c) the conduct of the defendant after the
cause of action accrued to the plaintiff, including the extent, if any,
to
which the defendant took steps to make available to the plaintiff means of
ascertaining facts which were or might be relevant
to the cause of action of
the plaintiff against the defendant; (d) the duration of any disability of the
plaintiff arising on or
after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he
or
she knew that the act or omission of the defendant, to which the injury of the
plaintiff was attributable, might be capable at
that time of giving rise to an
action for damages; (f) the steps, if any, taken by the plaintiff to obtain
medical, legal or other
expert advice and the nature of any such advice he may
have received. (4) The powers conferred on a court by subsection (2) may be
exercised at any time notwithstanding-

  

   (a) that the limitation period in respect of the relevant cause of action
has expired
since the cause of action accrued; or (b) that an action in
respect of such personal injuries has been commenced. (5) This section
does
not apply in respect of a cause of action to which the Compensation (Fatal
Injuries) Act 1968 applies."

   19. It is common
ground that the limitation period for the institution of
proceedings expired on 15 November 1985. THE FACTUAL BACKGROUND

   20.
The plaintiff was born on 15 November 1964 ( 32 years old at the time
of the hearing of the application). He is an Indian Fijian.
When he was
approximately 12 years old he met the defendant in Fiji. His evidence was that
at the instigation of the defendant there
was sexual contact between them at
this time. A similar incident allegedly occurred in Fiji when the plaintiff
was approximately
13 to 14 years of age.

  

   21. Certain discussions arose between the plaintiff's mother and the
defendant in relation to the
plaintiff's education and welfare and as a result
the defendant agreed in essence to look after and educate the plaintiff in
Australia.

  

   22. Following this, presumably with the consent of and at a cost to the
defendant, the plaintiff came to Australia and was
enrolled as a boarder at
Chevalier Catholic Boarding College where he attended for three years.

  

   23. The plaintiff claims
that after he came to Australia for the purpose of
obtaining an education, there was sexual contact between him and the defendant
in New South Wales and the ACT when the plaintiff was approximately 15 or 16
years old, that is, in 1979 or 1980.

  

   24. The
gravamen of the claim is that by virtue of the plaintiff's age and
the defendant's role as guardian whilst the plaintiff was under
his care in
Australia and Fiji, there was a relationship giving rise to fiduciary
obligations. This fiduciary relationship was breached
when the defendant took
advantage of his position of power over the plaintiff and persuaded him at
various times to have sexual relations.

  

   25. Alternatively, the plaintiff claims an actionable assault in respect of
which he is entitled to sue. The plaintiff claims
that he has suffered a post
traumatic stress syndrome which has had various effects on his life and which
is likely to affect him
well into the future. The plaintiff submits that this
is the result of a very long standing sexual relationship born out of the
dominance
of the defendant. The plaintiff claims that the defendant's position
of dominance extended beyond the age of consent.

  

   26.
The loss and damage alleged to flow from the assaults and breaches of
fiduciary duty include psychiatric problems, anxiety, substance
abuse, sexual
difficulties, continuing risk-taking behaviour, failure to achieve academic
potential and long-term future economic
loss.

  

   27. The remedies sought by the plaintiff in the statement of claim which
accompanied the writ were damages, punitive
and exemplary damages and costs.
APPLICATION TO AMEND RELIEF SOUGHT IN STATEMENT OF CLAIM

   28. The plaintiff made application
during the course of the hearing to
amend the relief sought (in statement of claim) so as to add a claim for
equitable compensation.
The application was opposed by the defendant on the
ground that to grant it would extend relief even further past the expiration
of the limitation period by approximately a further five months and that in
effect, it was for a different form of relief based on
the same causes of
action. I reserved my decision on the application on 21 April 1997.

  

   29. In my opinion, the absence of
the claim for equitable relief from the
statement of claim is merely a failure to specify the relief sought. The
plaintiff described
the relief sought in the statement of claim as damages for
breach of fiduciary duty, whereas the correct relief would be equitable
compensation for such a breach. In effect, the plaintiff is not seeking by way
of amendment to institute proceedings for an entirely
different form of
relief. As I stated at the time of the application, the amendment sought is
merely a correction or an alternative
way of expressing the type of relief
already sought. The amendment sought is not a plea for the first time of a
cause of action that
was not pleaded at the commencement of the proceedings. I
give leave to the plaintiff to amend the statement of claim as asked. THE
DISCRETION TO EXTEND TIME

   30. Equitable compensation is sought by the plaintiff for the alleged
failure of the defendant to perform
obligations owed by him to the plaintiff.
In addition to s26 of the Supreme Court Act 1933 (ACT) which states that a
plaintiff is entitled to equitable relief where in pre-Judicature Act
proceedings of the same type he would
have been so entitled, the court has "an
inherent power to grant relief by way of monetary compensation for breach of
fiduciary duty
or other equitable obligation..." ( US Surgical Corp v Hospital
Products Int Pty Ltd (1982) 2 NSWLR 766 at p816).

  

   31. According
to the plaintiff, he failed to institute proceedings within
time because of shame and embarrassment about the sexual relationship.
He
found himself unable to speak about it to his family and lacked the courage to
take any steps against it. The plaintiff claims
that it was only when he
observed in the media in 1993 references to claims brought by students against
former Christian Brothers
for similar behaviour that he found the courage to
do something about it, hence he sought legal advice in 1993.

  

   32. At the
time that proceedings were instituted the plaintiff was
10[Omega] years out of time, given that the limitation period is suspended
for
the duration of a legal disability (the Act s30).

  

   33. I have already set out above the terms of s11 of the Act.

  

   34. Section 14(1) of the Limitation Act 1969 (NSW) reads,

  

  

   "14(1) An action on any of the following causes of action is not
maintainable if brought after the expiration
of a limitation period of six
years running from the date on which the cause of action first accrues to the
plaintiff or to a person
through whom he claims: (b) a cause of action founded
on tort, including a cause of action for damages for breach of statutory
duty."

   35. Section 4(1) of the Limitation Act Chapter 35 1978 (Fiji) reads, "4(1)
The following actions shall not be brought after the expiration of six years
from the date on
which the cause of action accrued, that is to say - (a)
actions founded on simple contract or on tort: (b) actions to enforce a
recognizance;
(c) actions to enforce an award, where the submission is not by
an instrument under seal; (d) actions to recover any sum recoverable
by virtue
of any Act, other than, a penalty or forfeiture or sum by way of penalty or
forfeiture: Provided that - (i) in the case
of actions for damages for
negligence, nuisance or breach of duty (whether the duty exists by virtue of a
contract or of provision
made by or under any Act or independently of any
contract or any such provision) where the damages claimed consist of or
include
damages in respect of personal injuries to any person, this subsection
shall have effect as if for the reference to six years there
were substituted
a reference to three years; and (ii) nothing in this subsection shall be taken
to refer to any action to which section
6 applies."

   36. In Brisbane South Regional Health Authority v Taylor (supra), Toohey
and Gummow JJ described a court's discretion
to extend a limitation period as,
(at p547),

  

  

   "... a discretion to grant, not a discretion to refuse, and on well
established
principles an applicant must satisfy the court that grounds exist
for exercising the discretion in his or her favour. There is an
evidentiary
onus on the prospective defendant to raise any consideration telling against
the exercise of the discretion. But the
ultimate onus of satisfying the court
that time should be extended remains on the applicant."

   37. Guidance in the exercise of
the discretion is provided in the following
passage from McHugh J's judgment in the same case (at p551),

  

  

   "The discretion
to extend time must be exercised in the context of the
rationales for the existence of limitation periods. For nearly 400 years,
the
policy of the law has been to fix definite time limits (usually six but often
three years) for prosecuting civil claims. The
enactment of time limitations
has been driven by the general perception that "[w]here there is delay the
whole quality of justice
deteriorates". Sometimes the deterioration in quality
is palpable, as in the case where a crucial witness is dead or an important
document has been destroyed. But sometimes, perhaps more often than we
realise, the deterioration in quality is not recognisable
even by the parties.
Prejudice may exist without the parties or anybody else realising that it
exists. As the United States Supreme
Court pointed out in Barker v Wingo,
"what has been forgotten can rarely be shown". So, it must often happen that
important, perhaps
decisive, evidence has disappeared without anybody now
"knowing" it ever existed. Similarly, it must often happen that time will
diminish the significance of a known fact or circumstance because its
relationship to the cause of action is no longer as apparent
as it was when
the cause of action arose. A verdict may appear well based on the evidence
given in the proceedings, but, if the tribunal
of act had all the evidence
concerning the matter, an opposite result may be ensued. The longer the delay
in commencing proceedings,
the more likely it is that the case will be decided
on less evidence than was available to the parties at the time that the cause
of action arose.

  

   Even before the passing of the Limitation Act 1623 (Imp), many civil
actions were the subject of time limitations.
Moreover, the right of the
citizen to a speedy hearing of an action had been acknowledged by Magna Carta
itself. Thus for many centuries
the law has recognised the need to commence
actions promptly and to prosecute them promptly once commenced. As a result,
courts exercising
supervisory jurisdiction over other courts and tribunals in
their jurisdictions have power to stay proceedings as abuses of process
if
they are satisfied that, by reason of delay or other matter, the commencement
or continuation of the proceedings would involve
injustice or unfairness to
one of the parties.

  

   The effect of delay on the quality of justice is no doubt one of the most
important influences motivating a legislature to enact limitation periods for
commencing actions. But it is not the only one. Courts
and commentators have
perceived four broad rationales for the enactment of limitation periods.
First, as time goes by, relevant evidence
is likely to be lost. Secondly, it
is oppressive, even "cruel" to a defendant to allow an action to be brought
long after the circumstances
which gave rise to it have passed. Third, people
should be able to arrange their affairs and utilise their resources on the
basis
that claims can no longer be made against them. Insurers, public
institutions and businesses, particularly limited liability companies,
have a
significant interest in knowing that they have no liabilities beyond a
definite period. As the New South Wales Law Reform
Commission has pointed out:

  

   "The potential defendant is thus able to make the most productive use of
his or her resources
and the disruptive effect of unsettled claims on
commercial intercourse is thereby avoided. To that extent the public interest
is
also served."

  

   Even where the cause of action relates to personal injuries, it will be
often just as unfair to make the shareholders,
ratepayers or taxpayers of
today ultimately liable for a wrong of the distant past, as it is to refuse a
plaintiff the right to reinstate
a spent action arising from that wrong. The
final rationale for limitation periods is that the public interest requires
that disputes
be settled as quickly as possible."

   38. The defendant submitted, inter alia, that he was never in the position
of fiduciary with
respect to the plaintiff, that he never owed a fiduciary
duty to the plaintiff, and never acted in breach of any duty he owed the
plaintiff, whether fiduciary or otherwise.

  

   39. In having regard to all of the circumstances of the case and the
indicia enumerated
in s36(3), consideration must also be given to whether the
action is maintainable.

  

   40. In S & B Pty Ltd Podobnik (supra)
a Full Court of the Federal Court
was not prepared to conclude that the judge at first instance was wrong to
form an opinion as to
the prospects of success of the claim and to include
this assessment in the exercise of his discretion. I venture to repeat what
I
said in that case,

   "There is no provision in s36 expressly requiring the prospects of success
to be taken into account, but
in the prefatory words of s36(3), a court shall
have regard to all the circumstances including the enumerated criteria. In
those
circumstances I would not be prepared to conclude that his Honour was
wrong to make some assessment of Mrs Podobnik's prospects of
success (at
p386)."

  

   41. In that same case, Carr J said (at p405),

  

  

   "The words '... a court shall have regard to
all the circumstances of the
case including (without derogating from the generality of the foregoing) the
following....' are so wide
that I would not be prepared to hold that it was an
error in the exercise of his Honour's discretion to take into account the
apparent
strength of the plaintiff's claim in this matter."

   42. I accept the submissions on behalf of the defendant that sexual matters
are difficult to prove or disprove purely because they occur in private and do
not leave a documentary trail that can be verified.
It is easy to fabricate
sexual allegations and it is difficult to positively disprove them,
particularly after up to 20 years have
elapsed. Such a position was recognized
in Kelleher v R [1974] HCA 48;  [1974] 131 CLR 534 at p553.

  

   43. Mason J referred to the evidence of "complainants in the case of sexual
offence" as having
a "suspect character". He said,

  

  

   "As Salmon LJ said in R v Henry; R v Manning (1968) 53 Cr App R 150 at p153
'...human
experience has shown that in these courts girls and women do
sometimes tell an entirely false story which is very easy to fabricate,
but
extremely difficult to refute'. Likewise, knowledge of human affairs tells us
that for various reasons the evidence of an accomplice
implicating an accused
person is to be treated with caution; it is susceptible to fabrication and
extremely difficult to refute."

  

   44. In the same case, Gibbs J (at p553) said,

  

  

   "It is now established that in cases of rape and other sexual offences
in
which corroboration is not required as a matter of law the trial judge should,
as a matter of practice, warn the jury that it
is dangerous to convict on the
un-corroborated testimony of the person (whether male or female) on whom the
offence was committed,
although the members of the jury may act upon that
testimony if, after scrutinizing it with great care, and paying heed to the
warning,
they are satisfied of its truth and accuracy."

  

   45. Kelleher v R (supra) was followed, although on a different point,
without
any qualification upon its authority, in Domican v The Queen [1992] HCA 13;  (1992)
173 CLR 555. I note that, as Gibbs J pointed out in the passage I have quoted
from his judgment, the rule stated in Kelleher
is not a rule about cases
involving female complainants, but about cases of complaints of a sexual
nature, whether made by male or
females. It is concerned with the correct
direction to be given to a jury about allegations which, in practice, have
often related
to things done in secret, in the absence of independent
witnesses, and which, whether real, imagined or fabricated, were fraught
with
strong emotions. Some fabrications in such cases have been difficult to
expose. But of course, if the real reason for the rule
of practice lies in
consideration of this kind, the need actually to reflect it in the making of a
decision will depend upon the
issues arising at the hearing of the particular
case. This view, as Mason J makes clear in Kelleher (at p560), lies at the
basis
of the majority decision in that case, and the point was also
acknowledged by the dissenting judge (Gibbs J, at p553). See also Carr
v
McDonald's Australia Ltd (1994) 63 FCR 358.

  

   46. The rule has been applied in a civil action: Cross on Evidence (4th
Aust
ed, 1991), par 15120, citing Galler v Galler (1954) P 252, where,
incidentally, (at p258) support will be found in a judgment written
40 years
ago for the proposition asserted by Gibbs J that the principle is not related
to the sex of the complainant.

  

   47.
In this court, recognition was given to the fact that it is difficult
for victims of sexual abuse to come forward with their claims,
however this
was not found to be a justification for placing them in a special category for
the purposes of granting an extension
of time, see A v D (Miles CJ, 20
September 1995, unreported), at p22,

  

  

   "An allied question is whether victims of sexual
assault should be placed
in a separate category from other persons seeking to sue out of time. There
may be room for argument to
that effect where liability is not in issue, but
this is not the case in which to lay down a general principle that a person
against
whom an allegation of sexual assault is made, is more at risk at
having the time extended in which he or she may be sued than a person
against
whom another type of assault is alleged. I do not think that judicial
recognition of the reluctance of victims of sexual
assault to come forward to
press claims justifies placing them in a special category for this purpose.
Every case has to be decided
according to its own circumstances."

   48. Further in that case, Miles CJ found that due to the length of the
delay in reporting
an alleged assault, the matter would be decided according
to whether the plaintiff's account was more probable than that of the
defendant,
"a very unsatisfactory way to decide whether serious criminal
conduct occurred so long ago" (at p16).

  

   49. In a recent High
Court decision, Vincent Raymond Jones v The Queen , (2
December 1997, unreported) Brennan CJ stated that in a criminal trial, where
a
child did not make an allegation of sexual intercourse until more than four
years had elapsed from the first alleged act of intercourse,
not only a
comment on this lapse of time was required but also a warning about the danger
of convicting without supporting evidence
other than the testimony of the
child (at p4). His Honour pointed out that the applicant's loss of the means
by which to test the
complainant's allegations which would have been available
to him had there been no delay in prosecution, is a factor that may not
be
apparent to the jury. Brennan CJ referred to a previous joint decision of
Brennan (as he then was), Dawson and Toohey JJ ( R v
Spencer ) that identifies
the problem inherent in the case of a very lengthy delay in bringing an
allegation of sexual offences (at
p5),

  

  

   "...Had the allegations been made soon after the alleged event, it would
have been possible to explore in detail
the alleged circumstances attendant
upon its occurrence and perhaps to adduce evidence throwing doubt upon the
complainant's story
or confirming the applicant's denial."

   50. The type of case which the plaintiff seeks to bring on damages is also
relevant to
the grant of an extension of time. His damages case is
particularised is paragraph 12 of the statement of claim as follows,

  

  

   "Particulars of Damage

  

   (a) Ongoing psychiatric problems; (b) emotional cruelty; (c) humiliation;
(d) post-traumatic
stress disorder; (e) recurrent intrusive thoughts and
memories; (f) sleep disturbance; (g) abnormally raised level of arousal; (h)
anxiety; (i) subjective concentration difficulties; (j) enormous feelings of
shame and embarrassment; (k) confusion regarding sexual
identity; (l)
inability to inform meaningful and intimate relationships with people of
either sex; (m) marked despair as a result
of betrayal of trust by father
figure; (n) indiscriminate promiscuity; (o) substance abuse including overuse
of alcohol; (p) emotional
distress; (q) need for regular consultations with
medical health profession; (r) continuing risk-taking behaviour; (s) major and
permanent psychiatric impairment; (t) failure to achieve academic potential;
(u) necessity to work in an unskilled occupation; (v)
long-term future
economic loss."

   51. At the trial it will be necessary to ascertain whether the plaintiff
really is in the psychiatric
condition that he asserts that he is in. That
condition involves dimensions that are sexual and also the alleged substance
abuse
and risk-taking behaviour.

  

   52. It will also be necessary to ascertain the level of intellectual skill
that the plaintiff
has, how the allegations that the plaintiff makes
concerning the defendant interact with that and what effect there has been on
the
plaintiff's economic loss to date and future economic loss. It will be
necessary to try to sort out what other causes there might
be for the
condition (both psychiatric and economic) that the plaintiff now claims he is
in. This would involve an investigation
of the circumstances of his life in
Australia and in Fiji over a period of decades.

  

   53. A fundamental question is what are
his sexual preferences and what are,
if any, his homosexual experiences. There was a question concerning what
educational prospects
he ever had, what effect any actions of the defendant
had on them. There was a question concerning the nature and extent of his
alleged
alcohol abuse and the effect it has had on him. There was a question
concerning just what has been his working history and income.
In relation to
his working history it will be necessary to disentangle to what extent his
working history is the result of the alleged
abuse and to what extent it is
the product of him being forced into low paid jobs through being an illegal
immigrant.

  

   54.
I accept the submission on behalf of the defendant that much of the
evidence is bound to have been lost and that it is placing a
very heavy burden
on the defendant to ask him to disentangle all these strands over a period of
over 20 years in the life of the
plaintiff.

  

   55. I propose to examine first the merit of the plaintiff's claim for an
extension to bring an action for breach
of fiduciary duty. Of course if no
fiduciary relationship existed between the plaintiff and defendant that gave
rise to the fiduciary
obligations, the claim for breach of fiduciary duty
fails in limine. FIDUCIARY RELATIONS

   56. For the plaintiff's claim of breach
of fiduciary duty to succeed, he
must establish that the relationship between him and the defendant was one of
trust and confidence,
an outstanding feature of which was that the defendant
was required to act in the interests of the plaintiff. The plaintiff must
then
establish that by the defendant's action this relationship was breached, thus
giving rise to a claim for equitable compensation.

  

   57. In Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64;  (1984)
156 CLR 41 at p96-7 Mason J (as he then was) said,

  

  

   "The accepted fiduciary relationships are sometimes referred
to as
relationships of trust and confidence or confidential relations; cf Phipps v
Boardman [1966] UKHL 2;  [1967] 2 AC 46 at 127; viz trustee and beneficiary, agent and
principal, solicitor and client, employee and employer, director
and company,
and partners. The critical feature of these relationships is that the
fiduciary undertakes or agrees to act for or on
behalf of or in the interests
of another person in the exercise of a power or discretion which will affect
the interests of that
other person in a legal or practical sense. The
relationship between the parties is therefore one which gives the fiduciary a
special
opportunity to exercise the power or discretion to the detriment of
that other person who is accordingly vulnerable to abuse by the
fiduciary of
his position. The expressions "for", "on behalf of" and "in the interests of"
signify that the fiduciary acts in a "representative"
character in the
exercise of his responsibility, to adopt an expression used by the Court of
Appeal."

   58. In Walton Stores (Interstate)
Ltd v Maher [1988] HCA 7;  (1988) 164 CLR 387 at p419
Brennan J, (as he then was) in finding the doctrine of equitable estoppel was
based upon unconscionable
conduct, relied upon a classical construction of
equity,

  

  

   "The element which both attracts the jurisdiction of a court
of equity and
shapes the remedy to be given is unconscionable conduct on the part of the
person bound by the equity, and the remedy
required to satisfy an equity
varies according to the circumstances of the case."

   59. This illustrates the conscience based jurisdiction
of equity.

  

   60. While Mason J in Hospital Products Ltd v United States Surgical
Corporation (supra) listed the traditional
categories of fiduciary
relationship, it is clear that it is not an exhaustive list (at p96),

  

  

   "... it is important in
the first instance to ascertain the characteristics
which, according to tradition, identify a fiduciary relationship. As the
courts
have declined to define the concept, preferring instead to develop the
law in a case by case approach, we have to distill the essence
of the
characteristics of the relationship from the illustrations which the judicial
decisions provide. In so doing we must recognize
that the categories of
fiduciary relationships are not closed: Tufton v Sperni; English v Dedham Vale
Properties Ltd."

   61. Sopinka
J of the Supreme Court of Canada, in LAC Minerals v
International Corona Resources Ltd 61 DLR (4th) 14 at p61, said,

  

  

  
"While equity has refused to tie its hands by defining with precision when
a fiduciary relationship will arise, certain basic principles
must be taken
into account. There are some relationships which are generally recognized to
give rise to fiduciary obligations: director-corporation,
trustee-beneficiary,
solicitor-client, partners, principal-agent, and the like. The categories of
relationships giving rise to fiduciary
duties are not closed nor do the
traditional relationships invariably give rise to fiduciary obligation. As
pointed out by Dickson
J. in Guerin v The Queen , supra, p 341: "It is
sometimes said that the nature of fiduciary relationships is both established
and
exhausted by the standard categories of agent, trustee, partner, director,
and the like. I do not agree. It is the nature of the
relationship, not the
specific category of actor involved that gives rise to the fiduciary duty. The
categories of fiduciary, like
those of negligence, should not be considered
closed...""

   62. The key criteria that seem to give rise to a fiduciary relationship
are
"trust and confidence or confidential relations"; "exercise of a power or
discretion which will affect the interest of [an] other
person in a legal or
practical sense" which results in that other person being "vulnerable to abuse
by the fiduciary of his position".
It is clear however that there is no one
test for that which constitutes a fiduciary relationship, see Hospital
Products Ltd v United
States Surgical Corporation , at p69,

  

  

   "I doubt if it is fruitful to attempt to make a general statement of the
circumstances
in which a fiduciary relationship will be found to exist.
Fiduciary relations are of different types, carrying different obligations
(see In re Coomber; Coomber v Coomber [1911] 1 Ch 723, at p728-729, Jenyns v
Public Curator (Q) [1953] HCA 2;  (1953) 90 CLR 113, at p132-133 and Phipps v Boardman [1967]
AC, at p126-127) and a test which might seem appropriate to determine
whether
a fiduciary relationship existed for one purpose might be quite inappropriate
for another purpose."

   63. Gibbs CJ pointed
out in Hospital Products Ltd v United States Surgical
Corporation , (at p69) that trust or confidence is not a necessary criterion
for fiduciary relationships,

   "In the decided cases, various circumstances have been relied on as
indicating the presence of a
fiduciary relationship. One such circumstance is
the existence of a relation of confidence, which may be abused: Tate v
Williamson
(1866) LR 2 Ch App 55, atp 61; Coleman v Myers [1977] 2 NZLR, at
p325. However, an actual relation of confidence - the fact that
one person
subjectively trusted another - is neither necessary for nor conclusive of the
existence of a fiduciary relationship; on
the one hand, a trustee will stand
in a fiduciary relationship to a beneficiary notwithstanding that the latter
at no time reposed
confidence in him, and on the other hand, an ordinary
transaction for sale and purchase does not give rise to a fiduciary
relationship
simply because the purchaser trusted the vendor and the latter
defrauded him (atp 96-97)."

  

   64. Despite the inconclusive nature
of the definition of a fiduciary
relationship, Mason J did identify a "critical feature of these
relationships", namely "that the
fiduciary undertakes or agrees to act for or
on behalf of or in the interests of another person..."

  

   65. The plaintiff's case
going to the type of relationship that existed
between him and the defendant is to be found in his affidavit sworn 29 January
1997
as follows,

  

  

   "1. I am the plaintiff. 2. I was born on 15 November 1964. I am aged 32. I
recently married and my wife and
I have a child, Brandan Lee Paramasivam aged
6 months.

  

   3. I first met the defendant, Dr Flynn, in about December 1976 when
I was
12 years old, in Fiji. I met him at the home of my cousin, Martin Karunakaran,
at 21 Bryce Street, Raiwaqa, Suva.

  

   4.
I recall that a couple of days later Dr Flynn came to our then house and
said to my mother, words to the following effect: "I am
prepared to support
both your boys through school here in Fiji". My mother replied in words to the
following effect: "It's OK - you
can take care of the boys if you like". He
also said: "I will take them to Australia one day".

  

   ............

  

   5. Before
Dr Flynn left our house, he said to me: "You will come with me
tonight. I will bring you back tomorrow".

  

   .............


 

   7. Once we arrived in his room, we sat on the bed, side by side and he said
words to the effect of "I will look after you and
your brother if you like".

  

   ............

  

   9. I got undressed and Dr Flynn took off his sarong. He lay on the bed
watching
me get undressed. He gave me a hug then pulled me up to lie right
next to him. At this time my neck was on his shoulder. He stopped
and I did
nothing. He said words to the effect of: "I love you. I will look after you. I
will support you in school and if you are
nice I will bring you to Australia.
Now, talk to me". I began talking to him but cannot recall what words I used.

  

   ............

  

   17. ...On my return to Fiji, I entered Fullton College, a Seventh Day
Adventist boarding school for the 1980 school year.
I believe that Dr Flynn
paid for the school fees for that and the following year.

  

   18. In December 1981, I attained the Fijian
Junior Higher School
Certificate. Dr Flynn had written to me and had provided me with tickets and
visas to go to live in Australia.
I no longer have his letter.

  

   ............

  

   21. In February 1982, I commenced as a boarder at Chevalier College,
Bowral.
I believe Dr Flynn paid my school fees.

  

   ............

  

   27. From 1984 to 1987, I lived with Dr Flynn in his houses in
Sydney and
Canberra.

  

   ............

  

   29. During the time I lived with him, Dr Flynn used many methods of putting
pressure
on me to have sex with him. I remember asking him on a number of
occasions for money to buy things and he would say: "Come up and
talk about it
tonight". I had no source of money other than Dr Flynn, and he held all my
documentation, including my passport. I
felt obliged to do as he said, and
have sex with him.

  

   30. In 1983 I was called to an interview by the Immigration Department.
I
went with Martin, Kim and Richard and we were met there by Dr Flynn. Whilst we
were there Martin said to me: "Dr Flynn said not
to say anything". I said to
Dr Flynn: "What's all this about?". Dr Flynn said: "When you are asked
questions just be careful what
you say". I interpreted this to mean that I
should not disclose Dr Flynn's sexual practices.

  

   31. During the interview at
the Immigration Department, a social worker
said: "Has Dr Flynn ever touched you or sexually interfered with you in any
way?". I
replied: "No." I replied untruthfully because I did not want to go
back to Fiji.

  

   32. Some months after the interview at the
Immigration Department, Dr Flynn
took me to the office of his solicitor, Mr T Eakin, in Sydney. Whilst Dr Flynn
was out of the room,
Mr Eakin asked me: "Has Dr Flynn ever touched you?". I
replied: "No". I answered Mr Eakin's question in that way as I felt sure that
if I said Dr Flynn had touched me he would have sent me back to Fiji.

  

   ............

  

   37. When the school break came,
I went back to Ginnagalla Road, Bellevue
Hill. Dr Flynn handed me air tickets for me to return to Fiji. I returned to
Fiji two days
later.

  

   38. I stayed in Fiji 2 weeks. This was approximately in late 1984. Then Dr
Flynn rang me at my mother's home and said:
"You should come back to finish
you HSC. Your education is very important". I received an air ticket shortly
after. I returned to
Australia and finished my HSC but I failed. I attribute
my failure in the exam entirely to Dr Flynn, as I believed he was sending
me
home to Fiji permanently. Accordingly, I did not take any books with me when I
left Australia to help with my studying.

  


  ............

  

   40. My visa expired on 10 March every year. Dr Flynn would renew it for me
each year.

  

   41. At the beginning
of 1985 I enrolled at Bruce College of TAFE to study
mechanical engineering. By this time Dr Flynn had sex with me whenever he came
to Canberra and I felt under pressure to keep up with his demands. I was
afraid if I did not, that I would have to return to Fiji.

  

   ............

  

   46. On 1 January 1987, I had another argument with Dr Flynn and he again
threatened to send me back
to Fiji.

  

   ............

  

   50. ....Dr Flynn said: "Well, kick him out. We don't need people like this
in our country.
I've sponsored you all this time and look how you treat me.
You've still got stuff at my place, come and collect it". I said "Okay".....

  

   ............

  

   54. I did not take any action against Dr Flynn for so long as I was scared
that he might take away my
visa and send me back to Fiji and because I always
looked up to him as something of a father figure. Also I never knew I could
sue
for civil damages until I began to read about cases against Christian
Brothers schools.

  

   55. I first instructed a solicitor
to help me in 1993. This was when I saw
Mr Collaery to help me with my visa problems. After that he helped me with my
visa application.
Annexed hereto and marked "A" and "B" are copies of letter
he wrote on my instructions to the Department of Immigration on 21 June
1994
and 30 June 1994.

  

   56. I had felt very depressed in the late 1980's and early 1990's about my
treatment by Dr Flynn.
....."

   66. On any view of the facts the plaintiff's fiduciary claim is novel. To
my mind it is not at all clear that as a matter
of law there was any fiduciary
relationship between the plaintiff and the defendant. In Breen v Williams [1995] HCA 63; 
(1996) 186 CLR 71, the various Judges of the High Court made observations
about fiduciary duty and the circumstances in which a
fiduciary relationship
will be held to exist. That was a case in which a patient was endeavouring to
get access to her medical practitioner's
records relating to the patient. It
was part of the patient's case that she was entitled to access to the records
and that the medical
practitioner was in breach of his fiduciary duty to the
patient in refusing to give her access. It was unanimously held that the
relationship of doctor and patient does not necessarily itself create a
fiduciary relationship. Brennan CJ said, at p82,

  

  

   "Fiduciary duties arise from either of two sources, which may be
distinguished one from the other but which frequently overlap.
One source is
agency; the other is a relationship of ascendancy or influence by one party
over another, or dependence or trust on
the part of that other. Whichever be
the source of the duty, it is necessary to identify "the subject matter over
which the fiduciary
obligations extend". It is erroneous to regard the duty
owed by a fiduciary to his beneficiary as attaching to every aspect of the
fiduciary's conduct, however irrelevant that conduct may be to the agency or
relationship that is the source of fiduciary duty."

  

   See also the dicta of Dawson and Toohey JJ at p94-5, Gaudron and McHugh JJ
at p110-13 and Gummow J at p137.

  

   67. Counsel
for the plaintiff relied upon a Canadian decision in KM v HM
(1992) 96 DLR (4th) 289. That was a case concerning incest by a father
with
his daughter. A factual situation clearly distinguishable from the present and
where assertion of a breach of fiduciary relationship
had greater
plausibility. The gravamen of the case was in the context of fiduciary duties
of a parent to a child and I do not derive
any assistance from that case
especially having regard to the criticism of the Canadian Supreme Court
position on fiduciary of relationships
as expressed by the High Court in Breen
v Williams (supra).

  

   68. In short, I am not persuaded that the plaintiff's claim based
on a
breach of fiduciary duty by the defendant to the plaintiff has real prospects
of success. THE FACTORS SPECIFIED IN  36(3) OF
THE ACT
   Length of the time of delay

   69. It is now clear law that the length of the delay referred to in
s36(3)(a)(b) of the
Act is the whole period from the date of the accrual of
the cause of action to the date of making application for an extension of
time, see S & B Pty Ltd v Podobnik at 389, 394-95; Koumourou v The State
of Victoria (1991) 2 VR 265.

  

   70. The cause of
action relating to the Fijian allegations became statute
barred when the plaintiff reached 21 years of age, that is on 15 November
1985. The writ is 10[Omega] years out of time in relation to those
allegations. In relation to all other allegations the limitation
period
expired six years after the events complained of. The statement of claim
alleges continuing assaults until the plaintiff reached
the age of 21. The
limitation periods for each of those would expire progressively six years
after each alleged assault thus, even
if the sexual relations had occurred on
the last day before the plaintiff reached 21 (which has not been specifically
asserted in
the evidence), the latest of the limitation periods would have
expired on 15 November 1991. The effect of this is that the writ is
at the
very minimum four and a half years out of time in relation to the very last
assault alleged and might be more than five years
out of time in relation to
the very last assault sued on.

  

   71. I agree with the submission on behalf of the defendant that
in
assessing the length of time for which the extension is sought, it would be
wrong to focus on the last alleged assault. The plaintiff's
story requires him
to be able to sue on all the assaults he relies on. It would be forensically
unrealistic to have a trial in relation
to only some of the later alleged
assaults. In effect, the plaintiff needs to be able to obtain an extension of
time in relation
to all of them or none. Thus, the appropriate figure for the
extension of time is 10[Omega] years. Measuring the length of the delay
on the
part of the plaintiff from the first alleged sexual contact in Fiji to the
filing of the writ, the length of the time since
the events occurred is in the
order of 20 years. Even if the plaintiff's visit to Sydney is put as occurring
at Christmas 1979, there
is still a delay of 17[Omega] years from the time of
those events to the filing of the writ. That is a very substantial extension
of time for the plaintiff to seek.

  

   72. Furthermore, the delay between the issue of the writ and the making of
the application
for leave to extend time should also be considered. The
plaintiff's solicitor was expressly told that a limitation defence would
be
taken and the question of the need for an application to extend time was
squarely raised between the parties respective solicitors.
No application was
filed on behalf of the plaintiff until January 1997 and then only after the
defendant had served notice of motion
to have the proceedings dismissed by
reason of the limitation defences. I have already referred to the fact that
the writ issued
on 23 April 1996. Reasons for the delay

   73. The only reason advanced by the plaintiff for the delay is what he said
in paragraph
54 of his affidavit (reproduced at page 21 of these Reasons). To
my mind those reasons just do not bear investigation. The defendant
had no
power to arrange for the plaintiff to go back to Fiji after 1987 and, in any
event, from 1988 the plaintiff did not have a
visa because he was an illegal
immigrant. Nor do I accept that the plaintiff regarded the defendant as "a
father figure". The plaintiff
has not seen the defendant at all since 1987,
that is for nearly nine years before the issue of the writ. It is just not
credible
that his regarding the defendant as a father figure was a reason for
delay during those years. Nor do I accept his explanation that
he never knew
that he could sue for civil damages until he began to read about cases against
Christian Brothers schools.

  

  
74. In cross-examination he demonstrated a complete lack of comprehension
of the expression "sue for civil damages" and further,
he swore that the
information about the Christian Brothers cases came to him on television, not
through reading which contradicts
the contents of paragraph 54 of his
affidavit. Likely prejudice to the defendant

   75. There is obviously very great prejudice
to the defendant. In addition
to the case being a very complex one on the facts, there are legal
complexities which will lengthen
the case. I shall not repeat what I have said
at p15-16 of these reasons. Conduct of the defendant after the cause of action
accrued

   76. No relevant criticism can be made of the defendant. There is no
evidence of any information being in the defendant's position
which he has
kept from the plaintiff. Certainly the conduct of the defendant has not
contributed to the delay, nor is there any basis
for concluding that the
defendant concealed the plaintiff's rights from him. Duration of any
disability of the plaintiff

   77.
I am not satisfied that the plaintiff has any disability at all. The
only evidence of disability is in the report of Dr Glaser to
the effect that
the plaintiff has a psychiatric illness. Dr Glaser did not give evidence. The
plaintiff went to see him on one occasion
only for a couple of hours. That was
apparently on 8 March 1996. At the time of that consultation, Dr Glaser had
been sent a copy
of the statement of claim and had received an undertaking
from the plaintiff's solicitor that he, the solicitor, would be responsible
for the doctor's fees. He was sent a copy of the plaintiff's statement after
the consultation on 20 March 1996. The report was written
on 2 April 1996,
after the statement had arrived. The whole consultation had been arranged by
the solicitor and did not spring from
a realisation by the plaintiff that he
needed medical treatment. The plaintiff said in evidence that until Dr Glaser
told him he
had a psychiatric illness he did not know that he had a
psychiatric illness. The extent to which the plaintiff acted promptly and
reasonably once he knew that the act of the defendant might give rise to an
action for damages

   78. The plaintiff did not act
promptly or reasonably. I have already dealt
with the relevant evidence under the heading "Reasons for Delay". Steps taken
by the
plaintiff to get medical, legal or other expert advice and the nature
of such advice he may have received

   79. The plaintiff took
no steps whatever to seek medical help. The only
reason he went to the psychiatrist was because his solicitor sent him. Nor did
the
plaintiff take any steps to seek legal help in connection with the alleged
assaults. It appears that he first approached his solicitor
in connection with
his migration application and that the present action grew out of that
approach. In other words, he at no time
recognised himself as having a problem
that might be assisted by medical or legal help. Certainly, I am not satisfied
that if he
had sought medical or legal advice earlier, it would have been
advice which encouraged him to sue. OTHER DISCRETIONARY FACTORS


  80. There is much force in the defendant's submission that the action is
not a bona fide one. The use of the media as a pressure
tool is deplorable.
The plaintiff's solicitor was contemplating using the media as early as mid
1994 and discussed with the plaintiff
whether they should go to the media. It
is the plaintiff's evidence that the idea of going to the media was put into
his head by
his solicitor. An article appeared in "The Sun Herald" (exhibit B)
shortly before the writ was issued. In response to it, the defendant's
solicitors issued a press release, a copy of which was likewise in evidence.

  

   81. It is clear on the evidence that the plaintiff
arranged for the
television stations to be told about the writ even before it was served on the
defendant. He went along to Channel
10 to be interviewed in connection with
it. The evidence of the plaintiff is that this interview was a week before the
writ was issued.
The writ was served by post under cover of a letter dated 24
April 1996, after the defendant's solicitors had complained about the
publicity. In a telephone conversation between the plaintiff's solicitor and
the defendant's solicitor on 29 April 1996, the plaintiff's
solicitor made it
clear that the litigation was regarded as a civil, not a criminal matter, that
is, that his client was interested
in getting money not in activating the
criminal law. The plaintiff's solicitor told the defendant's solicitor that
any limitation
argument which the defendant raised would be a tour de force
and that the plaintiff had not actively sought publicity. That statement
is
plainly nonsense in all the circumstances.

  

   82. In assessing the strength of the plaintiff's case I have taken into
account
the many contradictions in his evidence. Counsel for the defendant has
enumerated in great detail those contradictions. I do not
find it necessary to
repeat counsel's submissions in that respect. It is sufficient to observe that
there were a number of occasions
in cross-examination where the plaintiff
admitted that some of the allegations in the statement of claim, some of the
evidence that
he gave to the court orally and by affidavit and some of the
history that he gave to Dr Glaser were wrong.

  

   83. On the whole
of the evidence and the plaintiff's demeanour, I hesitate
to assess the plaintiff as dishonest but he is certainly unreliable and
the
strength of his case has to be gauged accordingly.

  

   84. Insofar as the plaintiff needs an extension of time under s36
of the
Act in respect of the events which he alleges took place in Fiji and the
Australian Capital Territory, he has not discharged
the onus of establishing
that it is just and reasonable to extend the time within which an action based
on those causes of action
may be brought. THE ALLEGATIONS OF TORTS COMMITTED
IN NEW SOUTH WALES

   85. It is common ground that the Limitation Act 1969 (NSW) applies to the
torts alleged to have been committed in New South Wales. It was submitted on
behalf of the plaintiff that, although
s60B of the New South Wales Act
provides that the subdivision which contains s60G(2) applies only to causes of
action that accrue
on or after 1 September 1990 whereas the proceedings the
plaintiff brings against the defendant clearly accrued before that date,
the
section does not mean what it says it means. The defendant relied upon the
High Court's decision in Dedousis v The Water Board
[1994] HCA 57;  (1994) 181 CLR 171, see
especially at p178-179 per Deane, Dawson, Toohey, Gaudron and McHugh JJ where
their Honours concluded that
a person (such as the plaintiff here) whose cause
of action arose before 1 September 1990 has the right to rely on s60G(2)
despite
what s60B says. Thus, insofar as the plaintiff relies on common law
remedies which are barred by s14(1) of the New South Wales Act,
the plaintiff
must show that,

  

  

   (a) at the expiration of the relevant limitation period, namely in 1985, he
did not know
that injury had been suffered or was unaware of the nature or
extent of the injury or of the connection between the injury and the
defendant's act or omission; and (b) his application for an extension of time
was commenced within three years after he became aware
or ought to have been
aware of those three matters.

   86. The plaintiff says he did not become aware that he could sue until he
learned of the Christian Brothers' cases of which he heard on television. He
places that some time in 1993. Proceedings were commenced
in April 1996. The
precise time when he learned that a person who had suffered injury through
sexual molestation could claim damages
was not pinpointed. It would be
inferred, however, that it was within three years. What is certain is that he
received no psychiatric
advice or opinion until March 1996 when he saw Dr
Glaser by the arrangement of his solicitor. He then learned for the first time
that he had suffered a traumatic stress syndrome brought about by the
defendant's acts or omissions. In the circumstances, so it
was submitted, he
had three years from March 1996 when he saw Dr Glaser and became aware of the
traumatic stress syndrome to commence
the proceedings, namely, until March
1999.

  

   87. It was accepted by the plaintiff that the court dealing with an
application
for extension of time under s60G(2) has to decide whether it is
just and reasonable to extend the limitation period (see Draken Cole
Pty Ltd v
Drain (unreported decision, NSWCA, 9 August 1995)). The plaintiff's submission
was that it would, in all the circumstances,
be just and reasonable to extend
the time in respect of the common law claims in New South Wales. In relation
to the equitable claims,
it was submitted that for the reasons given in the
judgments of Kirby P and Priestley JA in Williams (supra), these claims are
not
barred by the NSW Act and ought to go to trial.

  

   88. The submissions on behalf of the defendant were first that in relation
to the New South Wales torts the plaintiff must convince this court that the
extension test contained in the NSW Act is satisfied
and also that the
extension test contained in the ACT Act is satisfied. The defendant reached
this submission by applying the reasoning
of Dawson J in Gardener v Wallace [1995] HCA 61; 
(1995) 70 ALJR 113 in construing the terms of s5 of the Choice of Law
(Limitation Periods) Act 1993 (Vic) which is in the same terms as s56 of the
ACT Act. Section 56 reads as follows,

  

  

   "If the substantive law of another
place being a State, another Territory
or New Zealand, is to govern a claim before a court of the Territory, a
limitation law of
that place is to be regarded as part of that substantive law
and applied accordingly by the court."

   89. Accordingly, this court
is to apply the New South Wales limitations law
to the torts alleged to have been committed in New South Wales. It was
submitted
that this conclusion is consistent with the decision of Higgins J in
Rose v Chang-Sup Kwow [1994] ACTSC 88;  (1994) 121 ACTR 1 which specifically concerned s56 of
the ACT Act.

  

   90. For reasons which were advanced, it was submitted
on behalf of the
defendant that in relation to the causes of action which allege New South
Wales tort, there is no power to extend
time under s56 of the Limitation Act
of the ACT. I am not entirely persuaded about that and accordingly, I think
that this court needs to consider whether to exercise
the discretion that
arises under the NSW Act. Some preconditions for the exercise of that
discretion are imposed by s60I. It was
submitted on behalf of the defendant
that those preconditions are not satisfied in the present case. It was
submitted that the court
needs to be affirmatively satisfied that the
plaintiff was in ignorance of the three matters listed in s60I(1)(a) at the
expiration
of the relevant limitation period or at a time before the
expiration of the limitation period when proceedings might reasonably have
been instituted. Of course, this requires the court to decide when the
limitation period for the New South Wales assaults expired.
Those periods
expired on a set of dates running from the plaintiff's 21st birthday (15
November 1985) to a date which is at latest
14 November 1991 (assuming that
there was an assault immediately before the plaintiff's 21st birthday).

  

   91. On the plaintiff's
own case, so it was submitted, he was aware of the
three matters listed in s60I(1)(a) by the late 1980s or early 1990s. The
plaintiff
himself does not say when he became aware of them. He bears the onus
of satisfying the court that the preconditions in s60I are satisfied.
He has
not given evidence about being in ignorance of those three matters at the
relevant time thus, it was submitted, the court
cannot be satisfied.

  

   92. There is some support for the defendant's assertion that the plaintiff
was aware of the three matters
listed in s60I(1)(a). In paragraph 56 of the
plaintiff's affidavit which I repeat, reads,

  

  

   "56. I had felt very depressed
in the late 1980's and early 1990's about my
treatment by Dr Flynn."

   93. I do not find it necessary to identify whether the plaintiff
was aware
of the three matters listed in s60I(1)(a) within three years of the
institution of the proceedings. The power to make an
extension as conferred by
s60G(2) is open-ended and dependent upon what the court decides is just and
reasonable. For all the reasons
why the extension of the period under s36 of
the Act would not be just and reasonable, the extension under s60G(2) of the
NSW Act
would not be just and reasonable.

  

   94. Section 57 of the ACT Act requires this court, in exercising the
jurisdiction conferred
under the NSW Act, to exercise it so far as practicable
in the manner in which it is exercised in comparable cases by the courts
of
that place. Some guidance in that respect is provided by the decision of the
NSW Court in Stinson v Trustees of Marist Brothers
(Master Malpass, 8
September 1995, unreported). That decision holds that,

  

  

   (a) in applying s60G(2) there is a two stage
process. First, whether it is
just and reasonable to make an order and then, an exercise of the discretion
whether or not to actually
make the order; and (b) the plaintiff bears the
onus of satisfying the court that it is just and reasonable and an order
should be
made.

   95. So far as the New South Wales torts are concerned, I am firmly of the
view that the plaintiff has not demonstrated
that it would be just and
reasonable to make an order extending time and so far as those claims are
concerned I likewise refuse the
extension of time. DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT

   96. As mentioned at p6 of these reasons, by amending notice of motion
dated
10 January 1997 and filed on 22 April 1997, the defendant seeks leave to apply
for summary judgment on the basis that it (sic)
has a good defence to the
merits of the plaintiff's claim and that the action should be disposed of
summarily in that the said claim
is not maintainable by virtue of the
provisions of s11(1) of the Limitations Act 1985 (ACT) as amended and of the
provisions of s14(1)(b)
of the Limitations Act 1969 (NSW) as amended.

  

   97. Pursuant to O17r1, the court may make an order that judgment be entered
for the defendant with or without costs if satisfied that,

  

  

   (a) the action is frivolous or vexatious; (b) there is a good
defence to
the action on the merits; or (c) the action should be finally be disposed of
summarily, or without pleadings. Insofar
as the defendant relies upon that
part of O17r1 which provides for summary judgment on the ground that there is
a good defence to
the action, I am of the opinion that a good defence to the
action on the merits has not been made out simply because the defendant
has
not gone into evidence as to the merits of the plaintiff's claim. However, the
action should be finally disposed of summarily
because it is not maintainable
having been instituted out of time and extension of time having been refused.
Accordingly, I enter
summary judgment for the defendant.

  

   98. I shall hear counsel on the question of costs.