FEDERAL COURT OF AUSTRALIA

LIMITATION OF ACTIONS – extension of time – application for extension of time to bring action for assaults and breaches of fiduciary duty – consideration of strength of claim – delay – prejudice – other discretionary factors under Limitation Act 1985(ACT) – whether just and reasonable to extend time.

LIMITATION OF ACTIONS – suspension of running of limitation period for fraud or deceit under s 33(1) of Limitation Act – whether fraud or deceit is ingredient of cause of action sued on – whether non-disclosure of right of action is concealment of a fact relative to cause of action.

CHOICE OF LAW – assaults and breaches of fiduciary duty alleged to have occurred in New South Wales – proceedings in Australian Capital Territory – ss 56 and 57 Limitation Act – Australian Capital Territory Court applies New South Wales law to claim to extend time to sue for assaults and Australian Capital Territory law to claim to extend time to sue for breaches of fiduciary duty.

FIDUCIARY DUTY – whether conduct constituting assault capable of constituting breach of fiduciary duty – sexual abuse of child by guardian.

APPEAL – nature of appeal from refusal to grant extension of time in which to sue and granting leave to enter summary judgment – whether finally determinative of rights – whether judgment appealed from is interlocutory – whether leave is necessary – whether less restraint in interfering with discretionary decision.

SUMMARY JUDGMENT – whether need for defendant to go into evidence in order to show a good defence on the merits – whether action should be finally disposed of summarily.

Limitation Act 1969 (NSW), ss 60G(2), 60H, 60(I), 68A

Limitation Act 1985 (ACT), ss 11(1), 33(1), 36, 36(3), 56, 57

Federal Court of Australia Act 1976 (Cth), s 24(1A)

Workers Compensation Act 1987 (NSW)

Choice of Law (Limitation Periods) Act 1994 (NSW), ss 3, 5 and 6

Limitation of Actions Act 1974 (Q), s 31(2)

 

Lovell v Lovell (1950) 81 CLR 513, considered

S & B Pty Limited v Podobnik (1994) 53 FCR 380, applied

House v The King (1936) 55 CLR 499, cited

Australian Capital Territory v. Ives (unreported, Federal Court of Australia,

26 July 1996), applied

McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, applied

Mason v Murray’s Charter Coaches and Travel Services Pty Limited

(unreported, Federal Court of Australia, 2 November 1998), referred to

Commonwealth of Australia  v Mewett (1997) 146 ALR 299, referred to

Gardner v Wallace (1995) 184 CLR 95, referred to

Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497, applied

Penn v Lord Baltimore (1750) 1 Ves Sen 444, referred to

British South Africa Co v De Beers Consolidated Mines [1910] 2 Ch 502, referred to

Richard West & Partners v Dick [1969] 2 Ch 424, referred to

Augustus v Permanent Trustee Co (Canberra) Co Ltd (1971) 124 CLR 245, considered

National Commercial Bank v Wimborne (1978) 5 BPR [97423] at 11,982, considered

Attorney‑General for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86, considered

United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766, considered

Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, considered

United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1, considered

Daly v Sydney Stock Exchange Ltd (1986) 160 CLR 371, considered

Chan v Zacharia (1984) 154 CLR 178, considered

 Breen v Williams (1996) 186 CLR 71, considered, applied

M(K) v M(H) (1992) 96 DLR (4^th) 289 (Supreme Court of Canada), considered

Banque Commerciale SA, en liquidation v Akhil Holdings Ltd (1990) 92 ALR 53, cited

Nygh, P E, Conflict of Laws in Australia 6^th ed (1995) 117

White, R W in Equitable Obligations in Private International Law: the Choice of Law (1986) 11 Syd LRev92 at 95-106

Fratcher, W F, Scott on Trusts, 4^th ed 1989

Cooter and Freedman, The Fiduciary Relationship: Its Economic Character and Legal Consequences  NYUL Rev  66 (1991) 1045

DeMott Fiduciary Obligation and Intellectual Siege: Contemporary Challenges to the Duty to be Loyal, Osgoode Hall LJ, 30 (1992) 470

Finn, P D, The Fiduciary Principle in Youdan, ed, Equity, Fiduciaries and Trusts

1989 1-56

Parkinson, P,  Fiduciary Law and Access to Medical Records (1995) 17 Syd L Rev 433 at 443

ROGER PARAMASIVAM  V  VINCENT JOHN ADAMS FLYNN

NO. AG 27 OF 1998

 

JUDGE(S):    MILES, LEHANE & WEINBERG JJ

PLACE:          CANBERRA

DATE:                       23 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
CANBERRA DISTRICT REGISTRY	AG 27  of  1998

 

BETWEEN:	ROGER PARAMASIVAM APPELLANT
AND:	VINCENT JOHN ADAMS FLYNN RESPONDENT
JUDGE(S):		MILES, LEHANE & WEINBERG JJ
DATE OF ORDER:		23 DECEMBER 1998
WHERE MADE:		CANBERRA

 

 

 

THE COURT ORDERS THAT:

 

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	AG27  of 1998

 

BETWEEN:	ROGER PARAMASIVAM APPELLANT
AND:	VINCENT JOHN ADAMS FLYNN RESPONDENT

 

JUDGE(S):	MILES, LEHANE & WEINBERG JJ
DATE:	23 DECEMBER 1998
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1                     This is an appeal from orders of the Supreme Court of the Australian Capital Territory (Gallop J) dismissing an application by the appellant for an extension of time in which to sue the respondent and granting leave to the respondent to enter summary judgment.

2                     The appellant caused a writ to be issued on 23 April 1996 attaching a statement of claim alleging assaults and breach of fiduciary duty.  The assaults were alleged to be in the nature of sexual abuse.  The breach of fiduciary duty was said to have occurred by reason of the many assaults allegedly committed by the respondent, and the circumstances in which they were said to have taken place.  The alleged assaults were numerous, committed over a number of years and in various places.  The allegations as to the assaults were pleaded in the statement of claim as follows:

“1.       In or about 1976, when the plaintiff was 11 years of age, the defendant sexually abused the plaintiff, whilst in Suva, Fiji.  …

2.                  Approximately one week later, the defendant again sexually abused the plaintiff.  …

3.                  Thereafter, during each school holiday period, the defendant would sexually abuse the plaintiff in a similar manner in Suva, Fiji, until the plaintiff was aged 16.

4.                  In or about 1979, when the plaintiff was aged 14, the defendant sexually abused the plaintiff whilst the plaintiff was staying in Australia.  …

5.                  …

6.                  For a period of months in 1981 until February 1982, the defendant sexually abused the plaintiff at the defendant’s house in Bellevue Hill in Sydney, every night. …

7.                  The defendant continued to sexually abuse the plaintiff by compelling the plaintiff to engage in sexual relations with him on a regular basis until the plaintiff reached the age of 21.

…”

3                     The fiduciary duty was alleged to have arisen in 1979 or 1980 or, at the latest, when, as it was alleged, the respondent became the appellant’s guardian in 1981.

4                     The respondent filed an amended notice of defence on 25 October 1997 in which he denied all matters of fact alleged in the statement of claim.  The notice of defence pleaded further that the action, having been commenced more than six years after the alleged causes of action had occurred, was barred by the provisions of the statutes of limitations of the Australian Capital Territory, New South Wales and Fiji.  The notice of defence pleaded further, and in the alternative, that any alleged cause of action which arose in New South Wales was extinguished by s 68A of the Limitation Act 1969 of that State (the NSW Act).

5                     The appellant filed a notice of motion on 24 January 1997 seeking to extend the limitation period to the date of the issue of the writ.  The respondent filed a notice of motion on 22 April 1997 seeking summary judgment on the defence that the claims were statute barred.

6                     When the motions came on for hearing before Gallop J on 21 and 22 April 1997, the appellant’s notice of motion had been amended to invoke the power of the Court to extend the time conferred by both the Limitation Act 1985 of the Australian Capital Territory (the Limitation Act) and the NSW Act.

7                     His Honour held that the appellant had not discharged the onus of showing that it was “just and reasonable” to extend the time within which to commence the proceeding and, further, that the respondent was entitled to summary judgment against the appellant.  His Honour’s decision was based on a number of considerations set out in his reasons for

judgment.  There are numerous grounds of appeal, some of which may be grouped together for convenience.

THE LEGISLATION

8                     The Limitation Act came into operation on 19 December 1985.  Some of the provisions relevant for the purposes of the present case are as follows:

“General

 

11.(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.

Fraud and concealment

 

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 to deliberate concealment of the facts involved in that breach of duty.

(4)  For the purposes of subsection (1), a person is answerable for fraud, deceit or concealment if, but only if –

(a)      he or she is a party to the fraud, deceit or concealment; or

(b)      he or she is, in relation to the cause of action, a successor of a party to the fraud, deceit or concealment under a devolution from the party occurring after the date on which the fraud, deceit or concealment first occurs.

(5)  Where property is, after the first occurrence of fraud, deceit or concealment, purchased for valuable consideration by a person who is not a party to the fraud, deceit or concealment and does not, at the time of the purchase, know or have reason to believe that the fraud, deceit or concealment has occurred, subsection (1) does not, in relation to that fraud, deceit or concealment, apply to a limitation period for a cause of action against the purchaser or a person claiming through him or her.

 

Personal injuries

 

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.”

9                     Insofar as some of the provisions of the NSW Act are relevant, we set them out later in these reasons.

NATURE OF APPEAL

10                  An order granting an extension of time to sue after the expiry of the limitation period is an interlocutory order (whether or not it is also characterised as an order made on a matter of practice and procedure).  An appeal against an interlocutory order may not be brought without leave of the court: Federal Court of Australia Act 1976 (Cth), s 24(1A).  An order refusing an application to extend time to sue after the expiry of the limitation period may or may not be regarded as interlocutory since it may or may not finally determine the rights of the parties in respect of the subject matter of the action.  It is possible that the state of the pleadings and of the circumstances of a particular case leave open the question whether the defence of expiry of the limitation period will succeed at the trial.  In the present case no reply was filed on behalf of the appellant to join issue with the defence of the expiry of the limitation period.  Instead, his response was to bring the application for extension of time, seeking leave to be granted retrospectively (nunc pro tunc) to the date of the issue of the writ.  That response was in turn met by the respondent bringing the application for summary judgment.  In the light of the approach taken by the parties, and the order of his Honour that there be summary judgment for the defendant, we conclude that the decisions appealed against were final in nature and that leave to appeal is unnecessary.

11                  No suggestion was made to us that, if the appeal against his Honour’s refusal to extend time failed, the judgment in favour of the respondent should (or might) nevertheless be set aside.

12                  Where an appeal is brought from a judgment involving the exercise of a discretion, the grounds on which an appeal court will interfere are so well known that they should not require repetition in all cases.  However, it was submitted on behalf of the appellant that there are reasons why, in the present case, this Court should not exercise the restraint that traditionally attaches to the consideration on appeal of a discretionary decision.  Reliance was

placed on the remarks of Kitto J in Lovell v. Lovell (1950) 81 CLR 513 at 532-534.  The passage relied upon at 532 should be quoted in full:

“It may be, as Jordan CJ said in  In Re Will of Gilbert (1946) 46 SR (NSW) 318 at p.323, that the restraint to which a court of appeal should submit itself is less stringent where the exercise of discretion is determinative of legal rights than it is where the discretion relates to points of practice or procedure.  But even in the former case the court of appeal must guard against reversing a discretionary decision merely because it would itself have decided the matter differently; it is not justified in substituting its own judgment for that of the primary judge unless it is clearly satisfied that his judgment was erroneous.”

13                  Counsel for the appellant in the present appeal relied upon the first part of this passage in submitting that the decision of Gallop J to refuse to extend the period and to grant leave to enter summary judgment, had finally determined the legal rights between the parties in respect of the subject matter of the appellant’s alleged cause of action and that, therefore, this Court should be less hesitant to interfere with his Honour’s decision, albeit discretionary, than had the discretion related to mere points of practice or procedure.  However, in our view, the submission does not give sufficient regard to the second part of the passage quoted.

14                  The remarks of Kitto J were referred to in the judgment of Gallop J, sitting as a member of a Full Court of this Court in S & B Pty Limited v Podobnik (1994) 53 FCR 380 at 381.  The appeal in that case arose out of an application for leave to appeal from a decision which granted the appellant an extension of time in which to sue.  The decision in respect of which leave to appeal was sought was not finally determinative of the rights of the parties, because the plaintiff, having been granted the extension, still had to prove her claim at trial.  But the appeal, if allowed (as it eventually was), stood to determine the plaintiff’s rights by barring the remedy of pursuing her claim.  Gallop J at 381 and Carr J at 398 took the view that, as the appeal was potentially determinative of the rights of the parties, then the restraint referred to by Kitto J was less stringent.  Neaves J did not express a view on this point, but was content to rely upon the well known line of authority, including House v The King (1936) 55 CLR 499, dealing with appeals from discretionary judgment.  All three members of the Court applied the two-stage test normally applied in appeals from interlocutory orders that for leave to be granted the applicant had to show, first, that the decision appealed against was
“attended with sufficient doubt” to warrant the appellate court re-examining the matter, and, if so, whether the decision appealed from worked “substantial injustice”.

15                  That approach was reaffirmed in the joint judgment of a Full Court of this Court in Australian Capital Territory v. Ives (unreported, 26 July 1996).

16                  It is appropriate for the same test to be applied in the present case, notwithstanding that the decision appealed from, if allowed to stand, puts an end to the rights of the parties in respect of the subject matter of the action.

17                  Gallop J summarised the nature of the case alleged in the statement of claim as follows:

“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.”

18                  His Honour noted that the proceedings were instituted many years out of time, given that the limitation period is suspended for the duration of legal disability under the Limitation Act.  His Honour referred to the relevant sections of the Limitation Acts of the Australian Capital Territory, New South Wales and Fiji and to passages in leading authorities including S & B Pty Ltd v Podobnik and Brisbane South Regional Health Authority v Taylor (1996) 186
CLR 541.  His Honour then went on to consider a number of factors relevant to the criteria set out in s 36(3) of the Limitation Act set out above.

19                  First, his Honour considered the question whether the action was “maintainable” against the general background of the “suspect character” of complaints of sexual offences in criminal cases, and the nature of the appellant’s claim for damages which was based essentially on psychiatric problems, and included a claim for long-term incapacity for work in skilled occupations.

20                  His Honour went on to examine and discuss in some detail the claim for breach of fiduciary duty.  He concluded that, on the facts alleged by the appellant in his affidavit sworn 29 January 1997, there were “no real prospects of success”.  Finally, his Honour considered the criteria specified in s 36(3) and, in particular, the matter of delay and prejudice.

21                  In relation to delay, his Honour observed that the claim for the earliest of the assaults alleged became statute barred on 15 November 1985 while the claim for the most recent of the assaults became statute barred on 15 November 1991.  It follows that the writ was ten and a half years “out of time” in respect of the former and four and a half to five years in respect of the latter.  The length of time from the first alleged assault in Fiji to the issue of the writ was in the order of 20 years and for the first alleged assault in Sydney more than 17 years.  Thus the appellant was seeking a very substantial extension.  His Honour considered that the nature of the appellant’s case was such that it was forensically unrealistic to consider granting the extension of time in relation to only some of the later assaults.  It was a case where evidence would have to be led in relation to all of the alleged assaults in order to establish a pattern of behaviour of the type for which the appellant contended and he would certainly be cross-examined at large.

22                  His Honour further considered that there was no satisfactory explanation for the delay from the issue of the writ to the filing of the application for an extension of time.  He rejected the contentions on behalf of the appellant that the appellant continued to consider the respondent a father figure after contact between them ceased in 1987.  In the light of cross-examination his Honour also rejected the explanation by the appellant of his former ignorance of his rights to sue for civil damages.

23                  On the matter of prejudice, his Honour considered that the delay was obviously very prejudicial to the respondent.  He noted that the case was very complex as to both facts and as to the law.

24                  His Honour mentioned consideration of other “discretionary” aspects which it is not necessary to examine in detail.  On matters of fact, his Honour stated that some of the allegations were demonstrably wrong and that (at 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.”

25                  His Honour then turned to the particular allegations concerning the respondent’s conduct in New South Wales.  His Honour noted that it was common ground that in effect the NSW Act governed the limitation period to be applied to the torts alleged to have been committed in New South Wales.  His Honour decided that it was not necessary to come to a conclusion whether the appellant had satisfied the pre-conditions for the exercise of the discretion imposed by s 60I of the NSW Act, because, for all the reasons why extension under the Limitation Act would not be just and reasonable, extension under s 60G(2) of the NSW Act would also not be just and reasonable.

26                  On the respondent’s motion for summary judgment, his Honour considered that the respondent had not made out a good defence on the merits because he had not gone into evidence.  Nevertheless the respondent was entitled to an order for summary judgment because the action was not maintainable, “having been instituted out of time and extension of time having been refused”.

27                  The appellant attacked a number of particular aspects of the primary judge’s reasons.  We shall consider them in turn.

HIS HONOUR’S CONSIDERATION OF THE FACTS

28                  It was submitted that his Honour had embarked upon an unjustified examination of the evidence to support the factual basis of the appellant’s claims and had decided issues as to the credit of  the appellant as a witness and issues relating to the alleged facts which should not have been decided unless and until a trial had taken place.

29                 It is clear that upon an application for extension of time, the Court is justified in assessing the relative strength of the appellant’s alleged cause of action.  It is difficult to see how (in many cases, at least) a court could arrive at a final decision whether it is just and reasonable to extend the period unless some consideration is given to the prospects of the claim succeeding if it were allowed to proceed to trial.  S & B Pty Ltd v Podobnik is sufficient authority for the principle, which was, in any event, confirmed by the joint judgment in Australian Capital Territory v Ives.

30                  The extent to which a court should investigate contested factual issues on an application for an extension of time is very much a matter for the judge entertaining the initial application.  It will vary according to the nature of the claim and the surrounding circumstances.  In the present case, Gallop J was aware of what he considered to be the particular features of the case which, in his view, justified an investigation of the matters alleged.  His Honour was also aware of the strength of the evidence available to support the allegations made.  The claims went back many years.  The events were alleged to have occurred in many places, and on many occasions.  There was a lack of particularity about times and places.  The allegations were of such a nature that they were very likely not to be the subject of corroborative or confirmatory evidence.  In these circumstances it is hardly surprising that his Honour considered that it was necessary to investigate the factual issues in some detail and that the credibility of the appellant as a witness would have a material bearing on the outcome of the investigation.  We see no error in his Honour taking that course.

31                  It was further submitted for the appellant that his Honour considered that the appellant was obliged on the application for an extension of time to prove his case in the same way and to the same extent as he would have to do at trial.  The submission is not supported by examination of his Honour’s reasons or of the transcript.

32                  It should be observed further that for the purposes of the application it was necessary to make findings of fact on those issues which went to a consideration of the criteria in
s 36(3) of the Limitation Act and on the ultimate issue of whether it was just and reasonable to extend the time.

CHOICE OF LAW: ASSAULTS

33                  Apart from statute, and in accordance with the common law principles of conflict of laws, the law relating to a limitation period which bars a remedy is regarded as a law relating to procedure.  In relation to procedural questions, a court applies the law of its own domestic jurisdiction whether or not the cause of action occurs outside that jurisdiction: McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 40-44.  Accordingly, where an action is brought, or sought to be brought, relying on a cause of action constituted in whole or in part by events occurring outside the jurisdiction, any question arising as to a limitation period is to be decided according to the law of the forum, that is the place in which the action is brought or sought to be brought.  The law relating to the circumstances in which summary judgment may be ordered is also a law relating to procedure and the law to be applied is that of the forum.

34                  The appellant having commenced the proceedings in this Court, the procedural law (including limitations law) to be applied in determining whether or not the various causes of action pleaded are barred, or whether summary judgment should be ordered in relation to the assaults alleged to have occurred in Fiji, as well as those alleged to have occurred in the Australian Capital Territory, is the law of the Australian Capital Territory.

35                  However, in relation to the assaults alleged to have occurred in New South Wales, statutory provisions apply.  They are ss 56 and 57 of the Limitation Act.  Those sections came into operation on 30 November 1993.  They provide as follows:

“Characterisation of limitation laws

 

56.  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.

Exercise of discretion under limitation law

 

57.     Where a court of the Territory exercises a discretion conferred under a limitation law of a place being a State, another Territory or New Zealand that discretion, as far as practicable, is to be exercised in the manner in which it is exercised in comparable cases by the courts of that place.”

36                 These provisions were considered by this Court in Mason v Murray’s Charter Coaches and Travel Services Pty Limited (unreported, 2 November 1998), decided shortly before the hearing of the present appeal.  In that case the appellant had been injured in New South Wales, and if he had sued in New South Wales, the limitation period would have been governed by the Workers Compensation Act 1987 (NSW).

37                  As Sackville J observed at 5 of his Honour’s judgment, ss 56 and 57 are substantially identical to ss 3, 5 and 6 of the Choice of Law (Limitation Periods) Act 1994 (NSW).  That and other similar legislation in Australia is conveniently collected in the judgment of  Gaudron J in Commonwealth of Australia  v Mewett (1997) 146 ALR 299 at 324.

38                  The effect of ss 56 and 57 was summarised by Higgins J at [34] where his Honour observed that:

“… for torts committed in another law district of Australia or New Zealand, the limitation laws of that district or country will apply rather than the limitation law otherwise applicable.  The source for the application of those laws [of the other law district] is the limitation law of the Australian Capital Territory, however, rather than that foreign law.”

and at [68] that, where the “foreign law” district is New South Wales:

“… the relevant ACT court applies any discretion conferred by the NSW Limitation law in the same manner and according to the same principles as would a NSW Court.”

39                  Drummond J said at 3 of his Honour’s judgment that s 57 is a direction to the ACT court:

“… that it can mitigate the effect of the governing time bar created by the NSW law, but only by applying the provisions of the NSW limitation law that permit the extension of its time bars as closely as possible to the way a NSW Court would apply those provisions if the case brought before the ACT Court had instead been brought in the NSW Court.”

40                  Sackville J observed at 14 of his Honour’s judgment that:

“In exercising the discretion conferred by s 151D(2) of the Workers Compensation Act, in conformity with the direction given in s 57 of the Limitation Act (ACT), the ACT court is considering whether, given the circumstances of the occurrence in NSW, the limitation period should be extended under the law of NSW.  In effect, the ACT court has been required to consider what a NSW court would do if asked to extend the limitation period in a case arising out of an occurrence in NSW.  The ACT court is not required to consider how a NSW court would exercise its discretion under s 151D(2) of the Workers Compensation Act in a case arising out of an occurrence in NSW, where proceedings have been instituted in the ACT.  The ACT court is to exercise its discretion in the manner in which it is exercised in “comparable cases” by the courts of NSW.  The “comparable cases” referred to in s 57 of the Limitation Act (ACT), in my opinion, are those in which NSW courts exercise the discretion conferred by s 151D(2) of the Workers Compensation Act in relation to occurrences which have taken place in NSW.  It follows that an ACT court, if it is to exercise its discretion under the NSW law in the manner in which it is exercised in comparable cases by NSW courts, must take into account the factors a NSW court would consider in a case arising out of an occurrence in NSW.”

41                  Although Gallop J did not have the advantage of the recent judgments in this Court, his Honour dealt specifically with the question of choice of law, referring to ss 55 to 57 of the Limitation Act and to relevant sections of  the NSW Act including s 60G(2).  That subsection provides as follows:

“If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.”

42                  There is no equivalent in the NSW Act to s 36 of the Limitation Act, and the discretion under s 60G(2) is not constrained by statutory criteria.

43                  His Honour clearly understood, as he observed, that:

“This Court needs to consider whether to exercise the discretion that arises under the NSW Act.”

44                  His Honour concluded on this issue by saying that:

“For all the reasons why the extension of the period under s 36 of the [Limitation] Act would not be just and reasonable, the extension under s 60G(2) of the NSW Act would not be just and reasonable.”

45                  As we understand the submission put on appeal, it was suggested that his Honour was in error in deciding that it was not just and reasonable to extend the period without first making a decision one way or the other about whether he was satisfied that the appellant was unaware of matters relating to his personal injury as specified in s 60I.  That section prohibits a court from making an order extending the time under ss 60G or  60H unless it is satisfied, inter alia, that the appellant was unaware of such matters.  The section does not prevent the court from declining to make an order on the just and reasonable ground under s 60G(2) without a finding as to the appellant’s awareness.  In an appropriate case, lack of awareness as to the appellant’s rights may be an appropriate matter to take into account on the ultimate question of whether it is just and reasonable to extend the time.  His Honour took that matter into account in this case.  Having done so, he decided it was not just and reasonable to extend the time.  We see no error in that approach.  Having decided that it was not just and reasonable to extend the time, after taking into account the evidence about the appellant’s lack of awareness, it was correct for his Honour not to make an express finding on the matters specified in s 60I.

46                  Because we consider that his Honour was correct in holding that the same result followed whether s 36 of the Limitation Act or s 60I of the NSW Act were to be applied, it is unnecessary to deal with some difficult questions as to the precise way in which s 56 of the Limitation Act applies, considered in Mason (see also Gardner v Wallace (1995) 184 CLR 95; compare Mewett at 340 per Gummow and Kirby JJ).

FIDUCIARY CLAIMS: APPLICABLE LIMITATION LAW

47                  In order to ascertain precisely what is the relationship which is said to have given rise to fiduciary obligations owed by the respondent to the appellant, and precisely what breaches of those duties are said to have occurred, it is, we think, appropriate and necessary to consider both the statement of claim and the evidence before Gallop J, particularly the appellant’s affidavit of 29 January 1997.

48                  Paragraph 5 of the statement of claim is in the following terms:

"In 1981, when the plaintiff was aged 16 years of age, he was invited to and took up residence with the defendant, and the defendant became the plaintiff’s guardian.

Particulars

 

The plaintiff’s mother in Fiji allowed the defendant to provide for the plaintiff’s education, and accommodation in Sydney, and act as the plaintiff’s guardian."

49                  There are then a series of allegations of sexual abuse, occurring between 1981 and 1986, when the appellant turned 21, followed by an allegation that:

"9.       The defendant compelled the plaintiff to have sexual relations with him by means of, inter alia, threats of sending him back to Fiji, refusing him access to any money of his own, withholding from him his passport, threatening to withdraw funding of the plaintiff’s schooling."

50                  It is then pleaded that:

"10.     By reason of the matters pleaded, the defendant was (at all relevant times after 1980 and on all occasions during 1979 and 1980 when the

plaintiff was in Australia) in the position of fiduciary with respect to the plaintiff, and owed fiduciary duties to the plaintiff.

11.              By reason of the conduct alleged, the defendant … has breached his fiduciary duties to the plaintiff."

51                  In his affidavit, the appellant deposed that at about the time of his first meeting with the respondent, in December 1976, the respondent said to the appellant’s mother:

“I am prepared to support your boys through school here in Fiji.”

To which the appellant’s mother replied,

“It’s OK – you can take care of the boys if you like.”

The respondent said,

“I will take them to Australia one day.”

52                  Following that, the appellant deposed, the respondent arranged for him to visit Australia in 1979; the respondent sexually abused the appellant during the visit; the appellant returned from the visit in early 1980 and entered a school in Fiji for the 1980 school year.  The appellant’s evidence was that he believed that the respondent paid the school fees.  Then, the evidence continued, after attaining the Fijian Junior Higher School Certificate in December 1981 the respondent provided the appellant with air tickets and visas to “go to live in Australia”.  He went to Australia, stayed initially with the respondent at his home in Bellevue Hill and in February 1982 commenced as a boarder at Chevalier College, Bowral; again, the appellant’s evidence was that he believed that the respondent paid the fees.  From that time the respondent, according to the appellant, sexually abused him on several occasions both at the respondent’s house in Sydney and in houses which he owned, successively, in Campbell and Red Hill, in the Australian Capital Territory.

53                  A significant problem, among the many with which this case abounds, is that the appellant has not attempted to define, with any precision, exactly what the circumstances were (or where they occurred) which gave rise to the alleged fiduciary relationship.  Nor has the appellant elaborated the precise scope or content of the fiduciary duties said to have arisen beyond the implication that the obligations arising in equity from the relationship between the parties included a duty on the part of the respondent not to engage in sexual conduct with the appellant, of the kind alleged, in the circumstances of compulsion or pressure which are pleaded.  It is thus not clear in what jurisdiction the alleged fiduciary duties are said to have arisen; it is, however, clear enough that fiduciary duties are said to have been breached both in New South Wales and in the Australian Capital Territory.

54                  The primary judge was, in our view, undoubtedly right in deciding that the general limitation period of six years, under s 11(1) of the Limitation Act, applies to an action alleging breach of fiduciary duty.  This, in the end, was common ground.  It follows necessarily from the wide definitions of “action” and “cause of action” in s 8(1) and because the Act does not provide another limitation period (s 11(2)) for breaches of fiduciary duty.  The position in New South Wales, however, is different: the NSW Act does not provide a limitation period in respect of actions for compensation for breach of fiduciary duty, and the effect of s 23 is that other provisions imposing time limits “do not apply, except so far as they may be applied by analogy, to a cause of action for specific performance of a contract or for an injunction or for other equitable relief”.  (We assume, without further consideration, that if an action can be brought for compensation for personal injury resulting from a breach of fiduciary duty, that breach is not a “breach of duty”of a kind referred to in s 18A(1) of the Act: see also the definition of “breach of duty” in s 11(1)).  That assumption is supported by observations of Kirby P in Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 at 509.

55                  Although there is no relevant difference between the New South Wales and the Territory law relating to fiduciary duties and their breach, it is necessary to consider whether New South Wales law governs the claims made by the appellant in respect of the alleged breaches of fiduciary duty, or any of them, because if it does the Australian Capital Territory court is obliged by s 56 of the Limitation Act to apply the New South Wales limitation law as (notionally) part of the substantive law governing those claims.  The limitation law of Fiji need not be considered: because s 56 does not apply to a claim governed by Fijian law, the Australian Capital Territory court will apply its own procedural law, including the Limitation Act, to such a claim.

56                  Dr Nygh (Conflict of Laws in Australia 6^th ed (1995) at 117) states a principle in unqualified terms:

"The forum determines according to its own law whether a personal equity exists between the parties.  It is not concerned with the question whether the lex situs recognises the equitable right or anything like it."

57                  The learned author proceeds to characterise that principle as an “example of English insularity” which “can lead to ludicrous results”.  Certainly courts of equity have long since, where they have been prepared to assume personal jurisdiction over parties, made orders affecting title to or interests in foreign property: Penn v Lord Baltimore (1750) 1 Ves Sen 444; British South Africa Co v De Beers Consolidated Mines [1910] 2 Ch 502; Richard West & Partners v Dick [1969] 2 Ch 424; and, in doing so, have applied their own principles, that is the lex fori.  (We use the phrase “have been prepared to assume” rather than “have had” in recognition of the considerations discussed by R W White in Equitable Obligations in Private International Law: the Choice of Law (1986) 11 SydLR92 at 95-106).

58                  It is not universally true, however, that the lex fori governs where rights or remedies, within the exclusive jurisdiction of equity, are enforced or applied.  It is not true of express trusts.  In Augustus v Permanent Trustee Co (Canberra) Co Ltd (1971) 124 CLR 245, the High Court held that the governing law of an express trust of personalty was to be ascertained in the same way as the proper law of a contract: the settlor may select a governing law, as parties to a contract may; if the settlor does not, then the governing law will be that with which the trust has its closest and most real connection.  The applicable rules relating, for instance, to perpetuities or accumulations are those of that governing law.  It may be that in the United States a similar approach is taken generally in relation to personal equitable rights and obligations.  In Scott on Trusts, 4^th ed 1989, Fratcher, WF, the following principles are stated, at para 665, in relation to fiduciary relationships:

"In all these situations, there may arise a question as to the applicable law because states may differ as to the extent of the duty of loyalty owed by the fiduciary.  It is generally held that the applicable law is that of the state in which the fiduciary relationship is centered, even though the property so acquired by the defendant and sought to be reached by the plaintiff is situated in another state …

The defendant may be in a fiduciary relation to the plaintiff other than as express trustee.  He may be an agent or employee of the plaintiff.  In such a case the most significant contact to be considered by the court is usually that in which the agency or employment is centered, rather than that in which the defendant acts in acquiring property in breach of his fiduciary duty, or that in which the property so acquired is situated."

59                  It will be observed that there is no suggestion that the court will simply, in such a case, apply its own law.  Scott proceeds, in para 665, to consider the law applicable to a suit to set aside a conveyance for fraud or undue influence:

"A question may arise as to the applicable law.  The fraud may have been committed or the undue influence may have been exercised in one state, but the property thereby acquired may be situated in another state, and the states may have different rules as to what constitutes fraud or undue influence.  If the dealings between the parties were centered in one state, it might well be held that the law of that state is applicable as having a greater interest in the situation than the state of the situs of the property.  This would be especially

so if the wrong arose out of a fiduciary or confidential relation between the parties."

60                  Australian authority is sparse.  In National Commercial Bank v Wimborne (1978) 5 BPR [97423] at 11,982 Holland J said:

"The Equity Court has long taken the view that because it is a court of conscience and acts in persnam, it has jurisdiction over persons within and subject to its jurisdiction to require them to act in accordance with the principles of equity administered by the court wherever the subject matter and whether or not it is possible for the court to make orders in rem in the particular matter.  In short, if the defendant is here, the equities arising from a transaction to which he is a party are ascertained by New South Wales law and the equitable remedies provided by that law will be applied to him.

The Equity Court determines according to its own law whether an equity exists, its nature and the remedy applicable: ..."

61                  In Attorney‑General for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 Kirby P at (151) was prepared, tentatively at least, to accept that as the generally applicable principle; McHugh JA, at 192, though accepting that what Holland J said in Wimborne represented “the generally accepted view”, pointed out that it was not universally correct or applicable, express trusts being one of the established exceptions.  In United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766 at 796–799, McLelland J considered, but without reaching a conclusion, whether he should apply New South Wales law to a fiduciary relationship arising out of a distributorship contract governed by the law of New York or Connecticut or whether, on the other hand, he should apply the law which governed the contract.  His Honour found it unnecessary to reach a conclusion because he held that the same result would follow whichever course he adopted.  The Court of Appeal took a similar approach: [1983] 2 NSWLR 159 at 192; nor was the subject dealt with by any member of the High Court ((1984) 156 CLR 41) except by Mason J, who at 88 assumed that the fiduciary relationship was governed by New South Wales law (the lex fori), and Dawson J, who at 137 simply referred to the discussion in the courts below.

62                  Particular considerations may arise where the source of a fiduciary relationship is a contract the governing law of which is not that of the forum.  It may be that in such a case principles, such as those for which Augustus is authority, will apply.  Similarly, particular considerations may arise where what is in question is the duty owed to a foreign corporation by its directors or officers.  But such matters do not arise here and it is unnecessary for us to form any view about them.  In other cases of fiduciary relationship, both principle and the balance of Anglo‑Australian authority favour, in our view, the general application of the lex fori, subject, perhaps, to this: that where the circumstances giving rise to the asserted duty or the impugned conduct (or some of it) occurred outside the jurisdiction, the attitude of the law of the place where the circumstances arose or the conduct was undertaken is likely to be an important aspect of the factual circumstances in which the Court determines whether a fiduciary relationship existed and, if so, the scope and content of the duties to which it gave rise.  No such question arises here, of course, where the law applicable in the competing jurisdictions – the Australian Capital Territory and New South Wales – is identical.

63                  Such an approach is not, in our view, likely to be productive of unjust or inconvenient results and is, so far as it extends, likely to deal satisfactorily with problems which necessarily arise where the forum is asked to apply its own rules to conduct undertaken in a jurisdiction where the law takes a view of it which differs from that of the lex fori (see White op cit  at 112, 113).  Particularly in a case such as the present, where it is by no means clear in what jurisdiction the relationship first arose and where the relationship is said to have subsisted while the parties were (at various times) in three separate jurisdictions, in each of which breaches of duties arising from the relationship are said to have been committed, the approach which we favour has considerable advantages, both of convenience and of certainty, over one which would seek the place where the relationship was “centred”or with which it had its closest or most real connection.

64                  For those reasons the substantive law applicable to the fiduciary claims in this case, is, in our view, that of the Australian Capital Territory.  Accordingly, the applicable limitation period is that of six years, under s 11(1) of the Limitation Act, and the application for an extension of time is to be dealt with under s 36 of that Act.  The considerations applicable under that section to claims in tort are thus equally applicable to the fiduciary claims.

DID THE PRIMARY JUDGE ERR IN CONSIDERING THE STRENGTH OF THE EQUITABLE CLAIM?

65                  We have dealt with the general proposition that, on the authorities as they now stand, it is appropriate, on an application to extend time, to take into account as a relevant factor the strength or weakness of the appellant’s case as it appears from material before the Court.  In addition, however, to matters going generally to the relative strength of the appellant’s case, his Honour gave particular consideration to the appellant’s  case based on breach of fiduciary duty; and his conclusion was that he was not persuaded that that case had real prospects of success.

66                  We have already referred to the lack of detail, in the pleading, as to the material facts said to give rise to the relationship and to define the scope of the duties arising from it.  Even disregarding that, however, in our view his Honour’s conclusion was justified.

67                  A relationship such as that alleged, of guardian and ward, may give rise to duties typically characterised as fiduciary – not to allow duty and interest to conflict and not to make an unauthorised profit within the scope of the relationship (although one might need to know more about the relationship than presently appears in order to ascertain the ambit of any such duties arising in this case).  Similarly, it is likely to be a relationship giving rise to a presumption of undue influence affecting transactions, particularly but not exclusively voluntary transactions, entered into by the ward and conferring benefits on the guardian.  Equally, of course, breach of a fiduciary duty, and breaches of other equitable obligations, are not remediable only by injunction or by a proprietary or restitutionary remedy: a plaintiff who has suffered loss resulting from breach of such a duty is entitled to compensation for that loss.  There is no room for doubt about any of those propositions, and it is unnecessary to cite authority for them.  Nevertheless, the judge was right in regarding the appellant’s claim as, under Australian law, novel.  That is so because of two of its aspects: the nature of the alleged breach and the kinds of loss or injury which the appellant claims to have suffered and for which he seeks equitable compensation.

68                  In Anglo-Australian law, the interests which the equitable doctrines invoked by the appellant, and related doctrines, have hitherto protected are economic interests.  If property is transferred or a transaction entered into as a result of undue influence, then the transaction may be set aside or, no doubt, the appellant may be compensated for loss resulting from the transaction; similarly if a transaction is induced by unconscionable conduct; so, in cases usually classified as involving fiduciary obligations not to allow interest to conflict with duty, the interests protected have been economic.  If a fiduciary, within the scope of the fiduciary obligation, makes an unauthorised profit or takes for himself or herself an unauthorised commercial advantage, then the person to whom the duty is owed has a remedy.  With one exception, that is the context of, and the assumption underlying, all the recent discussions of fiduciary duty in the High Court: see, for example, Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1; Daly v Sydney Stock Exchange Ltd (1986) 160 CLR 371; Chan v Zacharia (1984) 154 CLR 178.  The exception is Breen v Williams (1996) 186 CLR 71 where the appellant, seeking to rely on fiduciary duty to protect an interest of a rather different sort, namely the right of a patient to access medical records in the possession of a doctor, was held to fail.  Much academic writing proceeds on the assumption that the interests protected by these equitable doctrines are economic: see Cooter and Freedman, The Fiduciary Relationship: Its Economic Character and Legal Consequences, NYUL Rev, 66 (1991) 1045, DeMott, Fiduciary Obligation and Intellectual Siege: Contemporary Challenges to the Duty to be Loyal, Osgoode Hall LJ, 30 (1992) 470 (both cited by Gummow J in Breen at 125); and P D Finn, The Fiduciary Principle in Youdan, (ed) Equity, Fiduciaries and Trusts 1989 1-56.

69                  Of course, conduct such as that alleged against the respondent in this case can readily be described in terms of abuse of a position of trust or confidence, or even in terms of the undertaking of a role which may in some respects be representative and, within the scope of that role, allowing personal interest (in the form of self gratification) to displace a duty to protect the appellant’s interests.  But it should not be concluded, simply because the allegations can be described in those terms, that the appellant should succeed in an action for breach of fiduciary duty if the allegations are made good.  What the apparent applicability of the descriptions illustrates is not only the incompleteness but also the imperfection of all the individual formulae which have at various times have been suggested as encapsulating fiduciary relationship or duty.  The principles can be understood only in the context of the way in which the courts have applied them.  In that context the success of the appellant’s fiduciary claims, in this case, would indeed be a novelty.

70                  To say of a claim that it is a novelty is not necessarily to condemn it or to require the conclusion that it cannot succeed.  It is sufficient to demonstrate this point merely to refer to the gradual extension, during this century, of the kinds of loss for which damages are recoverable in tort – particularly in negligence.  But an advance must be justifiable in principle.  Here, the conduct complained of is in within the purview of the law of tort, which has worked out and elaborated principles according to which various kinds of loss and damage, resulting from intentional or negligent wrongful conduct, is to be compensated.  That is not a field on which there is any obvious need for equity to enter and there is no obvious advantage to be gained from equity’s entry upon it.  And such an extension would, in our view, involve a leap not easily to be justified in terms of conventional legal reasoning.

71                  On the appeal, the appellant relied heavily on M(K) v M(H) (1992) 96 DLR (4^th) 289, a decision of the Supreme Court of Canada.  That case had to do with claims, both in tort and on the footing of fiduciary obligation, arising from alleged incest by the appellant’s father.  The Supreme Court held that the relationship of parent and child was fiduciary, giving rise to a fiduciary duty to protect the child’s well‑being and health; and that incest was a breach of that duty.  The judgment of the Court was delivered by La Forest J, with whom the other members of the Court agreed.  His Lordship held that the relationship of parent and child fell clearly within the established formulations of circumstances giving rise to fiduciary relationships.  There was no principle requiring the duties arising from such a relationship to be restricted to the protection of economic interests: in certain contexts, equity had recognised a parental duty to protect the economic interests of a child; but case law did not limit the range of obligations that might attach to the relationship; and (at 327):

"Indeed, the essence of the parental obligation in the present case is simply to refrain from inflicting personal injury upon one’s child."

72                  With great respect, there can be no doubt that that is a fundamental aspect of a parent’s obligation; and it is one which should be, and is, appropriately protected by law.  It does not follow, however, that “fiduciary” is the right label for it, still less that equitable intervention is necessary, appropriate or justified by any principled development of equity’s doctrines.  (Compare Patrick Parkinson, Fiduciary Law and Access to Medical Records (1995) 17 Syd LR 433 at 443; Professor Parkinson’s more general thesis was referred to with approval by Gaudron and McHugh JJ in Breen at 113).  It is, perhaps, significant that the question arose, in M(K) v M(H), only in a context where – and, apparently, was raised only because – a limitation statute barred proceedings at law, but not in equity.  That was the context, also, of the New South Wales case to which we shall now turn.  We know of no other context in which such an extension of equitable principle has been suggested.

73                  The New South Wales case is the decision of the Court of Appeal in Williams.  The plaintiff, who was of Aboriginal decent, claimed that her treatment, during her childhood, by the Aborigines Welfare Board involved breaches of the Board’s fiduciary duty as to her custody, maintenance and education.  The Court held (by a majority) that the NSW Act did not apply directly to the equitable claim and should not be applied, in the circumstances, by analogy.  Kirby P referred to M(K) v M(H) and said, at 510:

"I see no reason to conclude that the principles expressed by the Supreme Court of Canada would not be applicable in this jurisdiction.  Nor is the vehicle of the equitable principles propounded (a claim by an alleged victim of incest) determinative or restrictive of the content of the principles, …  The trial of Ms Williams’ claim against the respondent, based upon her allegation of breach of fiduciary duty for which they are liable, is not disposed of by a refusal of the extension of time sought in respect of the tort claims by the application of s 60G(2) of the Limitation Act 1969."

74                  Priestley JA, who agreed with Kirby P in the result, took a considerably more cautious approach, at 516:

"To enable a properly satisfactory and fully explored answer to be given to [several of the questions] Mrs Williams wishes to raise, it seems to me desirable that Mrs Williams have the opportunity of putting all relevant evidence before the Court at a trial, rather than that the matters of significance which the case raises should be dealt with on the incomplete state of the evidence at present before the Court.

These considerations have influenced my general agreement with the approach of Kirby P. That approach involves conclusions, favourable to Ms Williams, about the arguability of a number of issues.  I have reached some of these conclusions only with hesitation and I recognise they may be vulnerable to a strict approach.  However, this case seems to me pre‑eminently to be of the kind where a broad approach should be taken to questions of arguability of legal propositions which may be novel but which require careful consideration in the light of changing social circumstances.”

75                  That case, however, preceded Breen.  Breen involved, factually, a quite different question: whether a doctor owed his patient a fiduciary duty to disclose a patient’s medical records to her.  The Court held that, though a doctor might commonly owe fiduciary duties to a patient, those duties did not include the one for which the appellant contended.  In the course of their judgments, the members of the Court made clear their disagreement with several aspects of recent Canadian approaches to the development of the law relating to fiduciaries: see per Brennan CJ at 83, per Dawson and Toohey JJ at 94, 95, per Gaudron and McHugh JJ at 110‑113 and per Gummow J at 132 ff.  And it is notable that, in giving
examples of circumstances in which a medical practitioner might be held in breach of a fiduciary duty owed to a patient, their Honours chose examples from the main stream.  Thus, at 93, 94, Dawson and Toohey JJ said:

"… it is the law of negligence and contract which governs the duty of a doctor towards a patient.  This leaves no need, or even room, for the imposition of fiduciary obligations.  Of course, fiduciary duties may be superimposed upon contractual obligations and it is conceivable that a doctor may place himself in a position with potential for a conflict of interest – if, for example, the doctor has a financial interest in a hospital or a pathology laboratory – so as to give rise to fiduciary obligations …  .  But that is not this case."

76                  Likewise, Gummow J at 136:

"The issue here is not that which would arise, for example, where a medical practitioner had advised the patient to undergo treatment at a particular private hospital in which the practitioner had an undisclosed financial interest, or where the medical practitioner prescribed one of a number of equally suitable pharmaceutical drugs for the undisclosed reason that this assisted the practitioner to obtain undisclosed side‑benefits from the manufacturer."

77                  There are also, in Breen, significant observations about the interrelationship between common law obligations and the fiduciary principle.  For example, Gaudron and McHugh JJ said, at 110:

"In our view, there is no basis upon which this Court can hold that Dr Williams owed Ms Breen a fiduciary duty to give her access to the medical records.  She seeks to impose fiduciary obligations on a class of relationship which has not traditionally been recognised as fiduciary in nature and which would significantly alter the already existing complex of legal doctrines governing the doctor‑patient relationship, particularly in the areas of contract and tort.  As Sopinka J remarked in Norberg v Wynrib [[1992] 2 SCR 226 at 312; (1992) 92 DLR (4^th) 449 at 481]: “Fiduciary duties should not be super imposed on these common law duties simply to improve the nature or extent of the remedy.”

78                  See also the observations of Gummow J, and the academic writing to which his Honour refers, at 125.

79                 All those considerations lead us firmly to the conclusion that a fiduciary claim, such as that made by the plaintiff in this case, is most unlikely to be upheld by Australian courts.  Equity, through the principles it has developed about fiduciary duty, protects particular interests which differ from those protected by the law of contract and tort, and protects those interests from a standpoint which is peculiar to those principles.  The truth of that is not at all undermined by the undoubted fact that fiduciary duties may arise within a relationship governed by contract or that liability in equity may co‑exist with liability in tort.  To say, truly, that categories are not closed does not justify so radical a departure from underlying principle.  Those propositions, in our view, lie at the heart of the High Court authorities to which we have referred, particularly, perhaps, Breen.  It follows that Gallop J was justified in concluding that he was not persuaded that the appellant’s claim based on breaches of fiduciary duty owed by the respondent to the appellant had real prospects of success.

DELAY

80                  A number of grounds in the notice of appeal were directed to alleged error on the part of his Honour on the matter of delay.  It is convenient to discuss these grounds together.

81                  Under ground (g) the point was taken that his Honour was in error in taking into account the delay between the commencement of the proceedings by the issue of the writ on 23 April 1996 and the filing of the application for the extension of time on 24 January 1997, some nine months later.  But it is well established that in general terms account is to be taken of the whole of the lapse of time from the date of accrual of the cause of action to the commencement of positive steps to seek an extension of time: S & B Pty Limited v. Podobnik.  The point was made in submissions that the period between the issue of the writ and the filing of the application for extension could not have contributed to the respondent’s prejudice, since the respondent would, on receipt of the writ, be on notice that if he chose to plead the expiry of the limitation period as a defence, an application to extend the time would inevitably follow.  However, in our view, the submission does not assist the appellant.  There was no finding and, as far as we are aware, no evidence to suggest that the respondent had contributed to the delay following the issue of the writ or wilfully ignored the prospect of an application for an extension of time.  In fact his Honour found to the contrary and it was well open to him to do so.

82                  Ground (h) alleges error in law in that his Honour found that the respondent had not contributed to the delay whereas, according to the submission, the evidence showed that it was the respondent’s own conduct that so shamed the appellant that he was unable to face bringing proceedings until many years after the events.

83                  The submission appears to be directed to delay caused by conduct of the respondent after the cause of action accrued, which is one of the factors to be considered under s 36(3) of the Limitation Act.  An initial difficulty with the submission is that the conduct of the respondent upon which the appellant appears to be relying is the conduct which, at least in some instances, constitutes the cause of action and by definition did not occur after the cause of action accrued.  In other instances, it may be that later conduct which in itself constitutes a cause of action could be said to have contributed to the delay in respect of a cause of action already accrued but, unless and until the assaults are pleaded with greater particularity, the submission lacks substance.

84                  Apart from s 36(3), conduct of a defendant which contributes to the overall delay is undoubtedly a factor which may be taken into account in deciding whether it is just and

85                  reasonable to extend the period.  However, the difficulty in the present case is that the argument depends upon a finding, or at least an assumption, that the appellant’s allegations of sexual abuse as a young boy are true.  The allegation of itself does not provide justification for delay on the appellant’s part unless it is seen to have some positive support in the material before the Court.  Thus the question of explanation for the delay is inextricably bound up with the question of the strength of the appellant’s case, on which we have already commented.  We see no error in law or in method as to his Honour’s approach to this aspect.

86                 Another aspect of the matter of delay is the psychiatric illness which the appellant alleges he suffered as a result of the respondent’s conduct.  It was submitted that his Honour should have accepted the appellant’s evidence that he did not know that he had a psychiatric illness until he consulted a Dr Glaser in 1996.  However, his Honour was not satisfied, on the evidence before him, that the appellant had any disability.  The issue is, perhaps, a peripheral one, as proof of damage is not an ingredient in the tort of trespass to the person.  In any event, his Honour dealt with the point, in substance, as one going to the strength, or general credibility, of the appellant’s claim.  We see no error in the approach he took.

PREJUDICE

87                  As already indicated, his Honour’s reasons for finding that there was very great prejudice to the respondent were brief and, as expressed, were confined to the factual and legal complexities of the appellant’s claim.  But we think it is implicit that his Honour also took into account on the question of prejudice the considerable delay which he had previously emphasised in his reasons.

88                  It was submitted on behalf of the appellant that there was no basis for any conclusion that there was any particular prejudice to the respondent beyond the delay itself and that the delay worked as much to the disadvantage of the appellant as it did to that of the respondent.

89                  For the respondent it was submitted that on the matter of prejudice the decision of the High Court in Brisbane South Regional Health Authority v Taylor left no room for the exercise of discretion in favour of the appellant.  It is necessary to consider the judgments of the Justices of the High Court in order to deal with this submission.  The case involved interpretation of s 31(2) of the Limitation of Actions Act 1974 (Q).  There was a particular question whether the sub-section gave rise to a “presumptive right” to an order for an extension of time once the applicant had satisfied certain conditions laid down by the sub-section.  McHugh J discussed the principles behind legislation requiring that causes of action be litigated within the limitation period specified and said at 555:

“When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period.  The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice.  In such a situation, actual injustice to one party must occur.  It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability re-imposed upon it. …

Once the learned judge had made a finding of actual prejudice, his decision to dismiss the application was inevitable.  Besides the proved prejudice, the long delay gave rise to a general presumption of prejudice.”

90                  Dawson J stated at 544 that he agreed with McHugh J and continued:

“The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant.  To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant.  I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation.”

91                  In the joint judgment of  Toohey and Gummow JJ, their Honours saw the question in terms of a fair trial rather than prejudice, whether presumptive or otherwise.  At 550 their Honours said:

“The real question is whether the delay has made the chances of a fair trial unlikely.  If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”

92                  Their Honours pointed out that fairness is not a matter of weighing prejudice to an applicant against prejudice to a respondent but involves consideration of all the circumstances. 

93                  Gallop J considered the judgments in Taylor’s case.  Whether his Honour should have applied the approach of McHugh and Dawson JJ on the one hand, or the approach of Toohey and Gummow JJ on the other hand, does not appear to us to be to the point.  His Honour’s conclusion was that there was very great prejudice to the respondent and that conclusion was open to him.  On that finding, the decision to dismiss the application was, on the approach of McHugh J, inevitable.  On the alternative approach, it was open to Gallop J to conclude that, in addition to the delay itself, the factual and legal complexities of the case, and the insubstantial nature of the claim for damages were all matters which went to establish positive prejudice to the defendant if the action were allowed to proceed, and that accordingly the chances of a fair trial were unlikely.

FRAUD AND SUSPENSION OF THE LIMITATION PERIOD

94                  Ground (b) in the notice of appeal alleges that Gallop J was in error in holding that fraud had to be pleaded in the statement of claim for the appellant to have the advantage of s 33 of the Limitation Act.  The terms of that section have already been set out above.

95                  However, his Honour did not expressly decide this issue, noting in his reasons that counsel for the appellant conceded that fraud had not been pleaded and accepted that fraud could not be raised at trial unless pleaded, citing Banque Commerciale SA, en liquidation v Akhil Holdings Ltd (1990) 92 ALR 53.

96                  Counsel for the appellant in the appeal submitted that in order for the appellant to be able to rely on s 33(1)(a) for the benefit of suspension of the running of the limitation period, it was sufficient to show that the facts pleaded were capable of giving rise to an inference of fraud or deceit.  But, in our view, the words “based on” in the paragraph must be given proper effect.  If fraud or deceit is not an ingredient of  the cause of action relied on, then allegations of fact from which fraud or deceit might be inferred are to be ignored for the purpose of s 33(1)(a).  Clearly the section is not intended to confer benefits on a plaintiff who makes general allegations of fraud or deceit in a statement of claim which does not rely on such fraud or deceit to provide a basis for any cause of action sued upon.

97                  An action for assault cannot be “based on” fraud or deceit since fraud or deceit does not constitute an ingredient of  a cause of action in assault.

98                  We have discussed, earlier in these reasons, the merits of the appellant’s claims based on alleged breach of fiduciary duty.  It is unnecessary to consider whether, in some cases, a claim founded on a breach of fiduciary duty may properly be described as a cause of action based on fraud or deceit.  It would, in our view, be stretching well understood language beyond breaking point to hold that the present claims are so based.

99                  It was further submitted that pursuant to s 33(1)(b) time did not run against the appellant because the respondent had deliberately concealed from the appellant the appellant’s entitlement to sue the respondent for assault.  However, in our view, the appellant’s entitlement to sue is not “a fact relevant to a cause of action” within the scope of s 33(1)(b).  The facts relevant to a cause of action, within the context, are those facts in a sequence of events which, once the sequence is concluded, bring the cause of action into existence.  Once the cause of action is brought into existence, other matters which may relate to it, such as a person’s right to sue or liability to be sued on that cause of action, are not relevant for the purpose of s 33(1)(b).  That is not to say that where a plaintiff is aware of facts that constitute a cause of action but is ignorant of the right to sue on that cause of action he may not rely on such ignorance as a matter explaining delay, as already discussed.

100               In any event, on the findings of Gallop J, with which we would not interfere for reasons already given, it was not open to draw a conclusion that the respondent deliberately concealed from the appellant his right to sue the respondent for assault.  Accordingly it was not open to the appellant to rely on s 33(1) for the purpose of obtaining the benefit of the suspension of the running of the period of  limitation.

USE OF MEDIA

101               Under the heading “other discretionary factors”, his Honour expressed the opinion that there was force in the submission on behalf of the respondent that the action was not bona fide.  One of the matters which appear to have led to that expression of opinion was media publicity given to the proceedings which his Honour considered had been used by the appellant and his advisers as a pressure tool.  We accept that whatever be the merits of the criticism of the appellant and his advisers in relation to the publicity, that was hardly a matter which went to the question of whether it was just and reasonable to extend the time. 
However, the publicity issue was only a minor aspect of his Honour’s reasoning and we do not think that it affects the validity of his conclusions.

SUMMARY JUDGMENT

102               The application by the respondent for summary judgment was made pursuant to O 17 r 1 of the Rules of the Supreme Court of the Australian Capital Territory, which provides that the Court may make an order that judgment be entered for a 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;

(c)                the action should be finally disposed of summarily or without pleadings.

103               His Honour stated that insofar as the respondent relied upon a good defence to the action on the merits under par (b), the respondent was not entitled to succeed because the respondent had not gone into evidence as to the merits of the appellant’s claim.  His Honour, however, made an order for summary judgment on the alternative ground under ground (c) that the action should be finally disposed of summarily, as it was not maintainable having been instituted out of time and an extension of time having been refused.

104               We would have thought, contrary to his Honour’s views, that it was not necessary for the respondent to go into evidence in order to make out a good defence to the action on the merits.  The facts necessary to establish that defence were made out in the appellant’s own case, if not on the pleadings, and the respondent had established, on the merits, the defence of expiry of the limitation period.  In any event, our view equally leads to the conclusion that his Honour was correct in ordering that judgment be entered for the respondent.

OUTCOME

105               For the foregoing reasons, we see no appellable error in the decision appealed from.  The appeal is dismissed with costs.

I certify that the preceding one hundred

and four (104) numbered paragraphs are

a true copy of the Reasons for Judgment

herein of the Court.

Associate:

Dated:  23 December 1998

Counsel for the appellant:              R Thomas

Solicitors for the appellant:           Bernard Collaery & Associates

Counsel for the respondent:          J Campbell QC

Solicitors for the respondent:        Gillespie-Jones & Co.

Date of hearing:                           5 November 1998

Date of judgment:                        23 December 1998