M & ANOR v H [1999] NZCA 300 (13 December 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca188/98

	between	M
		Applicant

	AND	H
		Respondent

Hearing:	13 December 1999
Coram:	Richardson P Henry J Tipping J
Appearances:	A C M Fisher for Applicant
	I M Ingram for Respondent
Judgment:	13 December 1999

judgment of the court delivered by RICHARDSON P

[1] This application is for conditional leave to appeal to Her Majesty in Council pursuant to r2(b) Privy Council Rules 1910 from the judgment of this court delivered on 9 September 1999.That decision dismissed the applicant's appeal from the High Court judgment dated 14 July 1998 refusing the applicant leave under s4(7) of the Limitation Act to bring proceedings for childhood sexual abuse.

[2] Section 4(7) provides:

(7) An action in respect of the bodily injury to any person shall not be brought after the expiration of 2 years from the date on which the cause of action accrued unless the action is brought with the consent of the intended defendant before the expiration of 6 years from that date:

Provided that if the intended defendant does not consent, application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time within 6 years from the date on which the cause of action accrued; and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose, where it considers that the delay in bringing the action was occasioned by mistake of fact or mistake of any matter of law other than the provisions of this subsection or by any other reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the delay.

[3] The applicant advanced her original claim in the High Court on the basis that the cause of action did not accrue until May 1993, being the date she said she realised she was not responsible for the abuse and reasonably discovered the elements of her cause of action.

[4] In the High Court Doogue J made a finding of fact that the applicant knew of the sexual abuse and that she was not responsible for it and did not consent to it "some time substantially before May 1993".Having rejected the "date of discoverability" put forward, Doogue J felt the applicant had failed to prove the fact on which she based her application and he saw no warrant to look for another possible date.On appeal (CA 188/98, judgment 9 September 1999) this court by a majority (Gault and Henry JJ) held that Doogue J was entitled to make this finding of fact and that his conclusion could not be criticised. Gault J said (para [45]):

The appellant's case for leave was not presented to the High Court on any basis other than that she became aware of the elements of her causes of action in May 1993.It is to advance a different case on appeal to contend that it was some time between 1990 and 1991.But that aside, an opinion based on hearsay evidence of a report directed to the circumstances of admission to hospital and in which the appellant is noted as reporting a good relationship with her stepfather is insufficient to establish that her causes of action accrued within 6 years of her application.

Henry J said (para [54]):

Third, this application for leave was presented to and decided in the High Court on a particular defined basis.In essence, at trial the issue came down very largely to questions of fact.For the reasons given by Gault J, I am satisfied the findings made by Doogue J were open to him - this Court's reluctance to interfere in that respect is well known (Rae v International Insurance Brokers Ltd [1998] 3 NZLR 190).Nor in my view is it appropriate for this Court now to make out a different case for the appellant, whether on the discoverability concept, or on the application of either s4(9) or s24 and for that purpose to attempt to make factual findings on issues which were not squarely addressed at trial.

[5] Rule 2(b) of the Privy Council Rules provides that an appeal may lie:

At the discretion of the Court of Appeal from any other Judgment of that Court, whether final or interlocutory, if, in the opinion of that Court, the question involved in the appeal is one which by reason of its great general or public importance, or otherwise, ought to be submitted to His Majesty in Council for decision.

[6] The applicant argues that the case raises an issue of great general or public importance, namely "to what extent are limitation principles applicable to claims seeking damages for childhood sexual abuse".The applicant submits that this issue is of general importance to victims of abuse who may wish to pursue claims against their abusers;that there is a divergence of judicial opinion on the issue both in this court and in the Commonwealth;and that it is appropriate that this matter be addressed by the Privy Council. Alternatively the applicant asks this court to exercise its residual discretion to grant leave to appeal under the "or otherwise" head.

[7] The respondent in reply submits that this case does not raise the general issue of importance contended for by the applicant.The case was, it is submitted, decided both at first instance and in this court, on the ground that the applicant was unable to prove the ground alleged in her application for leave to appeal out of time.The respondent further submits that the applicable principles have been exhaustively examined at Court of Appeal level in S v G [1995] 3 NZLR 681, T v H [1995] 3 NZLR 37 and Daniels v Thomson [1998] 3 NZLR 22, the last decision having been upheld in the Privy Council.Finally, the respondent submits that divergence of views between jurisdictions is a necessary feature of the common law and cannot itself justify leave.

[8] At both first instance and on appeal, this case was decided upon a narrow question of fact.We are satisfied that it does not raise any question of great general or public importance or a matter otherwise suitable for submission to Her Majesty in Council.Leave to appeal is accordingly refused. If any questions of costs arise counsel may submit memoranda.

Solicitors

Brookfields, Auckland, for applicant

Lawrence Cables, Hamilton, for respondent