TRG v The Board of Trustees of the Brisbane Grammar School [2021] HCATrans 92 (20 May 2021)

Last Updated: 20 May 2021

[2021] HCATrans 092

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B61 of 2020

B e t w e e n -

TRG

Applicant

and

THE BOARD OF TRUSTEES OF THE BRISBANE GRAMMAR SCHOOL

Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 20 MAY 2021, AT 10.13 AM

Copyright in the High Court of Australia
MR S.C. HOLT, QC: If it please your Honour, I appear with my learned friends, MR R.J. LYNCH and MR J.P.D. TROST, for the applicant. (instructed by McNamara Law)

MR J.D. McKENNA, QC: May it please the Court, I appear with my learned friend, MS D.L.E. TAY, for the respondent. (instructed by Corrs Chambers Westgarth)

GAGELER J: Yes, Mr Holt.

MR HOLT: May it please the Court. The question that arises here, the underlying question that has been litigated throughout, is whether under section 48(5A) of the Limitation Act of Queensland, the settlement of an historical sexual abuse claim, when the applicant was a student at Brisbane Grammar School, should be set aside.

That change in section 48, which is a transitional provision, but a transitional provision of substantial importance given the number of settlements likely to be affected by it, was, as the Court knows, part of a suite of changes enacted in the Queensland Parliament, and also similar to though not identical to other Parliaments dealing with the primary goal of remedying what was identified by the relevant Royal Commission as a fundamental unfairness that limitation periods do, and indeed have historically, caused to victims of institutional sexual abuse.

GAGELER J: Would you accept that the provisions are sufficiently different in each State for it not to be able to be said that what has been done in the – the interpretation arrived at by the Queensland Court of Appeal will be applicable in relation to the interpretation of the provisions elsewhere?

MR HOLT: I have to accept that and was about to make that concession.

GAGELER J: Yes.

MR HOLT: Save perhaps for Western Australia, though there is a difference also in that regime.

GAGELER J: So we are concerned with a peculiarly Queensland solution to a general problem?

MR HOLT: I think it is fair to put it that way. I think it would be wrong for me to make other than that concession, save for this point which is that the policy imperative that came out urgently of the Royal Commission to recognise the unfairness on limitation periods for historical sexual abuse cases, that object was enacted and forms the basis of all of the relevant regimes.

On this issue the regimes differ, we agree, but there would no doubt be assistance to other jurisdictions in relation to the place of what we respectfully submit is a powerful policy imperative and quite an extraordinary one in many ways in the sense that the gravity of the identified unfairness has not just been met by the Queensland Parliament and other Parliaments with prospective legislation, change and minimally applicable transitional provision, but in fact prospective and retrospective recognition that limitation periods in respect of historical child sexual abuse are in effect declared to have always been unfair, and to have always wrought an unfairness upon those who were subject to them, at whatever point in history that occurred.

EDELMAN J: But it is not a complete repeal of the limitation provisions.

MR HOLT: No, it is not. It is “all bark”, if I can put it that way for present purposes.

EDELMAN J: It is a power to effectively disapply them.

MR HOLT: In the context of settlements and judgments, absolutely, and otherwise an absolute disapplication of them in respect of proceedings that have not otherwise been dealt with. So, we accept that. But the force of the policy imperative that underlies it and, therefore, the force of the purpose of the statutory provisions, not the purposes of the Limitation Act but of this extraordinary suite of changes, are those which drive, in our submission, the approach that needs to be taken to the otherwise open‑textured – obviously by virtue of its language - discretion of just and reasonable for those purposes.

If I can answer a question that was asked in another special leave application, the essence, in our respectful submission, of the error in statutory construction that was made here is that their Honours saw an approach required by the force of that purpose which limited or informed or structured the architecture of the way in which that discretion needed to operate as being an improper fetter because, effectively, “just and reasonable” simply means all factors can be taken into account and weighed in whichever way is seen fit.

In our respectful submission, what the Court of Appeal do when they say in rejecting the arguments that we made below, this would amount to an improper fetter on a judicial discretion was, in fact, a fail to recognise that it is entirely appropriate to construe - and it is a question of construction of those words - to construe a broadly‑textured statutory discretion in a way, when there is such a powerful policy imperative as this one that underlies the amendments, that permits that policy imperative to dominate and to allow it to function, in effect, as a presumption. Our respectful submission is that that is the heart of what the Court of Appeal got wrong.

EDELMAN J: Which paragraph do you say most strongly encapsulates that adoption of ineffective presumption?

MR HOLT: There are two, if the Court pleases. I will answer your Honour’s question directly, but can I approach it in this way. The essence of the Court of Appeal’s reasoning, in our submission, was to adopt the reasoning of Justice Davis below and to effectively endorse it. Thus, the best place that one sees that in the judgment is at paragraph [12] which sets out – there is a long paragraph, commencing at page 91 of the application book, where – and it is only the first parts that are of particular importance but, in essence, this is the approach to the discretion which the court endorses.

When one looks at [12](a)(ii), what one sees is an identification of what are said to be two private interests, an interest in reopening for a more favourable outcome and another private interest, the interest of the respondent in avoiding that outcome. Then in (iii), requiring:

the Court to consider the parties’ competing interests and to strike a balance between them –

That is, the approach that is taken is one of the – a contest between private interests in circumstances where what we say is an extraordinary policy imperative that underlies the provisions is only seen as being a factor in favour and that resonates through the judgment.

Now, to answer your Honour Justice Edelman’s question more precisely, in our submission, where one sees, in effect, the articulation of the error is firstly at paragraph [24] of Justice Fraser’s judgment ‑ ‑ ‑

EDELMAN J: Just before you move from paragraph [12], why would not paragraph (a), or subparagraph (a)(i) to (iv) be read as saying no more than both parties have an interest, opposing interests in the outcome of the exercise of a power, and then when one comes to (iv), that “just and reasonable” permits many or all factors to be considered in deciding in which way the power should be exercised?

MR HOLT: In ordinary circumstances I could have no difficulty with that proposition, or that structuring of approach. The difficulty here, in our submission, is that it subordinates the identifiable and clear statutory purpose here – almost declaration of statutory policy – which is that there is – that limitation periods have wrought an unfairness, and their effect ought be undone such that that proposition only becomes, when one continues to read to (b), a factor in favour of the order being made.

EDELMAN J: But it is only that their effect be undone if the power is exercised to do that in relation to a settlement.

MR HOLT: Yes, but that is, in our submission, where your Honour, with respect, identifies a point. That is why, in our respectful submission, it is a question of construction of what is otherwise an open‑textured discretion because of the way in which that discretion must be construed consistent with what is an overwhelming statutory purpose.

If I can put it this way, what we respectfully submit is that the nature of this regime, and the nature of this subpart of this regime, admits of and, indeed, requires on proper construction an approach that has within it effectively a presumption in favour of the setting aside of a settlement where that settlement can be said to have been affected by what is now declared to be an unfair limitation period.

GAGELER J: Does that mean you need ground 2?

MR HOLT: We do need ground 2. We accept that.

GAGELER J: I had understood them to be independent, but ‑ ‑ ‑

MR HOLT: They are independent grounds in this sense, but I think for practical purposes the answer I have given to your Honour Justice Gageler is the right one in terms of assisting the Court. We do not shy away from the proposition that the special leave application involves both a question of law and a question of fact. The finding of fact which underpins the point that I have just made is, in our respectful submission, one which falls into any of the descriptors in cases like Dederer of being plainly wrong or obviously erroneous, and has itself been causative of an injustice in the context of this case, because a powerful factor ‑ ‑ ‑

STEWARD J: In relation to the factual issue, is there a particular piece of evidence recited in the judgment which would suggest that the finding of fact below was clearly wrong?

MR HOLT: Yes, your Honour, and it is very helpfully summarised at paragraph [34] of the judgment of the Court of Appeal at application book 101, in the sense that the combination of circumstances which are there identified, in our submission, and they are not in dispute, compel the conclusion that the settlement was influenced, materially influenced by the existence of the limitation period, and one only needs to summarise those grounds to see how powerful they are.

Brisbane Grammar School pleaded the limitation period, recalling this was a joint mediation process with 60‑odd people. It agreed to delay the resolution of that issue in separate proceedings to use it, as the judge found and the Court of Appeal accepted, as a negotiating tool. Logically, that means to put downward pressure on the settlement process, otherwise what is the point of a negotiation tool? It opened the joint mediation session relying on the limitation period. It never withdrew that reliance at any stage. The applicant had advice that the chances of extending it were only reasonable or fair to reasonable.

STEWARD J: So how do you overcome the findings then at, for example, [66]? The opening session limitation point was not pressed, was not mentioned, and so on?

MR HOLT: Your Honour, in terms of that finding, because your Honour identifies effectively what the Court of Appeal does, which is to say, we accept that the factors I have just identified lead to that conclusion, and here are the ones that flow against it. The difficulty is that, on each, they do not. After the opening session, the point that is made is the respondent did not press the limitation issue. The obvious answer to that is the limitation period was – the limitation issue was simply not mentioned in the individual sessions.

It is clear from paragraph [59] of the judgment at 109 that this was expected, that is, it was expected that issues of limitation, limitation and liability, be dealt with in the joint session, because they were common to all of the 60‑odd men who were subject to this mediation process, and that the individual proceedings would refer to issues of causation and quantum, which are logically for the individuals.

Indeed, there is a very helpful summary of it at – not summary, a setting out of the evidence, at Justice Davis’ judgment at paragraph [53] at application book 17 where his Honour sets out the only note of what occurs in that individual session from Ms Cameron, which his Honour accepted and was entitled to, indeed unsurprising his Honour did, which simply notes that there was no recollection, at 73:

of limitation issues during the Applicant’s mediation.

The focus of the submissions of Ms Treston - this is at 68 - were on “establishing causation”. So it had been opened in the joint session, never resiled from and simply not referred to. So, in our respectful submission, it is not a moving away from it, nor was there ever an expectation of it.

So too, what seemed to be a powerful factor in the Court of Appeal’s reasoning, that what would otherwise be the obvious inference of implication in - the obvious implication as set out for the matters in paragraph [36], that is, that this did affect a settlement, was not so because the Court of Appeal itself assessed now that the advice that had been given to the applicant as to prospects of extension was probably too conservative, that is, prospects of getting an extension would have been better, and let us accept that, I think I did in the Court of Appeal, that that is so, that makes ‑ ‑ ‑

GAGELER J: Mr Holt, if you had won this point on the facts, it is hard to see that the Court of Appeal would have determined the exercise of discretion against you.

MR HOLT: I am bound to accept that.

GAGELER J: It is very difficult to see a question of principle being raised here. It really is. You either succeed on ground 2 or not at all.

MR HOLT: In our respectful submission, if that is so ‑ let me put it slightly on that basis – our submission is that ground 2 - we do not resile from the proposition that there is a point of principle on ground 1 at all, in the sense that the discretion in our submission has been exercised in a way that fails to properly accept the way in which a discretion can be limited by a statutory purpose, even if it is open textured. But more fundamentally in terms of 2, that finding was, in our respectful submission, plainly wrong on the evidence and gives rise to an injustice in the context of this case and also a circumstance, of which the court is well aware, which effectively means ‑ ‑ ‑

EDELMAN J: What is the extent of the injustice? The settlement that was reached was slightly below the bottom of the predicted range, was it not?

MR HOLT: Yes. Might I respectfully couch the mischief here in a slightly different way and it comes back to the reason why these provisions were put in place in the first place following on from the Royal Commission and that is a recognition of the profound unfairness of limitation periods and that declaration as we say, in effect, that it has always been so, even though we did not know it at the time.

This was a settlement conducted under the shadow of an unfair limitation period and applying – and in circumstances where that was used as a negotiating tool. One might think and suggest rhetorically that this is the quintessential situation which Parliament would have had in mind in a legislative intention sense following the Royal Commission where one will be undoing the effects of that process.

Thus, there is a clear injustice, in our respectful submission, one which stems from the same underlying injustice which the Royal Commission identified as being so significant as warranting urgent attention and which all State and Territory legislatures, but here Queensland, positively responded to in that regard.

So our submission is – and I hope this is not seen as a convenient fallback because it is not submitted on that basis – even if the Court were not with us on the – I suppose - the extent of the point of principle on 1, this is an important matter in terms of the interests of justice for the applicant, affecting as it does, of course, a joint mediation process which involved more than 60 men who had been the victims of Kevin Lynch’s abuse. So it is one of those things that genuinely matters and the justification for the factual finding simply, in our respectful submission, does not exist.

Can I, at the risk of otherwise losing the point, your Honour Justice Edelman, just identify those paragraphs that I said that I would, before the bell takes me out? I invite the Court to go to paragraph [24] – which is on page 98 of the record book.

GAGELER J: Paragraph [24], did you say?

MR HOLT: Paragraph [24], yes.

GAGELER J: Thank you.

MR HOLT: Again, what I am identifying – I hope not unfairly – is the way in which the Court of Appeal – Justice Fraser – chose to deal with the argument that was put which was, in effect, that the nature of the statutory purpose required, in effect, that to be given dominant consideration which, in our submission, is correct as a matter of statutory construction. But his Honour characterised that as being – I am sorry, I have identified the wrong paragraph. Can I go to paragraph [29] on page 100 – rather than wasting the Court’s time? Yes, I am sorry. Toward the end of paragraph [29], the Court notes:

There is insufficient justification, however, for taking the very large step of imposing an unexpressed condition upon a new jurisdiction and discretionary power vested in a court.

In our submission, the error that that statement demonstrates is an important one in the sense that it focuses only on the obvious literal breadth of the words “just and reasonable” and fails to put them in context of a critical
statutory command and – I am sorry, I withdraw that - statutory policy underlying these amendments rather than the Limitation Act generally, which was intended to do something extraordinary – profoundly different from that which had always been the policy underlying Limitation Acts otherwise to permit the undoing of these matters because they were influenced by something now known to be fundamentally unfair.

It is the point, I suppose – if I can verbal your Honour Justice Gageler in a way – when your Honour says to me if that factual finding had gone the other way, surely the discretion would have been exercised in our favour, the short answer is, on the Court of Appeal’s construction, the answer may well be, no. They would say it is just one factor rather than recognising – as your Honour Justice Gageler’s question to me, at least implicitly does - that that should be the predominant consideration – not as a fetter as a matter of statutory construction, not as something to be avoided but as the proper construction of the statute, the failure of which amounts to a wrong construction.

The underlying question of statutory construction – that is, the extent to which a phrase of an open‑textured kind giving a judicial discretion can otherwise be limited, is raised squarely on the basis of the way in which that power is put. Unless I can assist the Court, those are our submissions.

GAGELER J: Thank you. Mr McKenna, we do not need to hear from you.

We are not satisfied that there is any arguable error of principle in the reasoning of the Court of Appeal. The application reduces to a challenge to a finding of fact in respect of which there was no difference between the primary judge and the unanimous Court of Appeal. The application will be refused - with costs? Do you ask for costs?

MR McKENNA: We do not seek costs, your Honour.

GAGELER J: The application will be refused. Thank you.

MR McKENNA: As the Court pleases.

GAGELER J: The Court will now adjourn until 11.00 am.

AT 10.34 AM THE MATTER WAS CONCLUDED