History reveals a pattern of physical, sexual and emotional maltreatment of children in Anglo-Saxon societies. Children's traditional status as mere units of economic labour and chattels for sale, without legal recognition or rights, meant that adults were able to subject children to multiple forms of abuse and neglect with impunity. Most commonly, this abuse and neglect has been perpetrated by individuals within families, but it has also been perpetrated on children entrusted to the care of government and religious institutions.
It is only in the last few decades that this incidence of abuse and neglect of children in State and religious institutions has begun to be revealed. In a number of jurisdictions, bodies of inquiry have discovered appalling records of institutional abuse and neglect of children. In Queensland, the Forde Commission of Inquiry into Abuse of Children in Institutions was commendably established by the Queensland government on 13 August 1998 after growing evidence of abuse of children in State and religious institutions. The Forde Inquiry found endemic emotional, physical, sexual and systems abuse, as well as breaches of statutory obligations to provide food, clothing, education and appropriate discipline. Tragically, after the Forde Inquiry, another inquiry into the abuse of children in State foster care has been necessary in Queensland, with similarly damning results.
These inquiries exemplify the fact that the historical record of child abuse and neglect has only recently been given anything approaching the attention it needs. It is undeniable that in the general context of child abuse and neglect, advances in knowledge and social policy have been made. As a social phenomenon, 'child abuse and neglect' has been identified. The psychological, educational and social effects of abuse and neglect have been researched and documented. Government departments are empowered to receive and investigate complaints, and to take protective action in certain cases. The incidence of child abuse and neglect is monitored. The inquiries into institutional abuse should also constitute an advance in this context, since their findings should inform future government policy and practice to ensure that the perpetration of cruelty and violence within State care does not happen again.
Because of these advances, it is fair to judge that the worst excesses of this tradition have passed, at least in modern liberal states. The evolution of liberal society, the academic recognition of childhood as a stage of life that is qualitatively different from adulthood, legislative recognition of children's needs and rights, and the creation of government departments responsible for child protection, all have positive consequences for the quality of children's lives. In Australian States and Territories, adults can no longer kill, abandon and sell children without dire consequences, and criminal laws are at least capable of punishing those who inflict physical and sexual abuse on children.
This judgment is qualified and should not be accompanied by satisfaction. There is substantial evidence that despite these piecemeal advances, there remain fundamental defects in individuals' treatment of children, and in public authorities' protection of children in their care. Recent evidence indicates that the occurrence of child abuse and neglect is still appalling. From 1994-98 in Queensland, 15 774 child sex offences were reported to police. In Queensland in 2002-03 there were 31 068 notifications of child abuse and neglect to State authorities, involving 22 027 children. Of these, there were 12 203 substantiated cases involving 9032 children. In 2002-03 in Queensland, 4107 children were living under care and protection orders issued by the State. Perhaps most disturbing of all, some of these children in State care, even after the revelations of the Forde Inquiry, have been found to have suffered abuse and neglect while in State care. In a preventative sense, then, evidence suggests that what progress may have been made is not nearly enough, both in individual and State-governed contexts.
Moreover, there is a second sense in which it is clear that the responses of the State have been deficient. This second responsive sense concerns the issue of how the State responds to people who have been abused and neglected in its institutions, and this context is the focus of this article. The responsive context has two main concerns: first, the compensation of survivors of State institutional abuse; and second, the question of amendment of statutory limitation periods to enable civil suits.
In contrast to several comparable overseas jurisdictions and one other jurisdiction in Australia, survivors of institutional abuse in Queensland have not been financially compensated for their suffering at the hands of the State. As well, in contrast to jurisdictions where the unfair operation of limitation statutes on plaintiffs in this class has been recognised, and amendments have enabled individual survivors to institute legal proceedings, the Queensland government has instead relied on statutory obstacles to deny survivors of institutional abuse access to the courts. In addition, the Queensland government amended new personal injuries legislation in 2002, making pre-court procedural requirements retrospective, which further complicates legal redress for survivors of historical abuse..
The actions taken by comparable governments forms the closest measure by which the financial and legal responses of the Queensland government can be evaluated. Like Queensland, these governments initiated inquiries that revealed direct and substantial evidence of the extent of child abuse in State institutions. In the unusual case of Tasmania, the fact of the abuse has been accepted without establishing an inquiry, but its response in establishing a compensation scheme qualifies it too as a comparable jurisdiction. Queensland is the only Australian jurisdiction to have recently conducted a detailed inquiry into institutional child abuse and neglect, although South Australia may soon do so after the introduction on 1 July 2004 of the Commission of Inquiry (Children in State Care) Bill. As well, the Commonwealth Senate Community Affairs References Committee recently completed its Australia-wide Inquiry Into Children In Institutional Care, but is yet to report. The findings of this Senate report, and any made by an inquiry eventuating in South Australia, may warrant assessments of responses in coming years by other Australian jurisdictions. The focus of this article is therefore on Queensland, primarily due to the overwhelming evidence from two inquiries about the extent of child abuse in State care, the express recommendation of the Forde Inquiry that survivors of institutional abuse should be financially compensated, and because of Queensland's strikingly different responses to these inquiries when compared to other jurisdictions. In Part 2 of this article, the responses of other jurisdictions in this context are summarised, detailing financial redress schemes and the amendment of statutes of limitation. Part 3 describes the Queensland government's response to the recommendations of the Forde Inquiry regarding compensation, which was to do nothing except direct survivors to take action in the courts. Part 4 discusses the implications of that direction by summarising the personal injuries litigation framework in Queensland at two points: pre-2002, governed by the Limitation of Actions Act 1974, and post-2002, governed by both the Personal Injuries Proceedings Act 2002 and the Limitation of Actions Act. This comparative exploration will then inform conclusions about the Queensland government's responses, and recommendations for practical and legal reform.2 Redress schemes and amendments to statutes of limitation2.1 Redress schemes
Either independently, or motivated by the recommendations of these bodies of inquiry, a number of governments have taken strong practical and moral action to remedy the damage inflicted on survivors of these institutions by designing redress schemes. Avenues of redress commonly included in these schemes include apologies, acknowledgment of the harm done, counselling, education programs, access to records, and assistance reunifying families. A central feature of the redress schemes is the design and implementation of financial compensation schemes, to which responsible religious institutions contribute. Both inquiries and government initiatives independent of inquiries have accepted that the provision of financial compensation for pain and suffering to those who have suffered damage at the hands of the State is a moral imperative.
The Law Commission of Canada, which undertook a comprehensive review of State responses to institutional abuse, declared that five principles must be respected in all processes through which survivors of institutional abuse seek redress. First, survivors should possess all information necessary to make informed choices about what course of redress to undertake. Second, they should have access to counselling and support. Third, those conducting or managing the process (judges, lawyers, police) should have the training necessary to enable them to understand the circumstances of survivors. Fourth, continual efforts should be made to improve redress programs. Fifth, the process should not cause further harm to survivors. 2.1.1 Canada
In Canada, provincial governments have established compensation schemes in situations where children were abused and neglected in State-funded and State-operated institutions. These include the British Columbia Jericho Individual Compensation Program 1995; the New Brunswick Compensation Program; the Nova Scotia Compensation Program 1996; the Ontario Grandview Agreement Compensation Scheme 1994; and the Ontario St John's and St Joseph's Helpline Agreement 1993.
The Law Commission of Canada recommended as the most effective official response in meeting the needs of survivors the use of redress programs that are designed with survivors, which involve responses to all their needs. Such programs are more flexible, less costly, less time-consuming, less psychologically traumatic and less confrontational than conventional legal proceedings. It also recommended that ex gratia payments should be offered in cases where an otherwise meritorious and provable claim cannot be pursued because it falls outside a limitation period. 2.1.2 Ireland
In Ireland, revelations of abuse in State orphanages, industrial schools and other institutions influenced Prime Minister Bertie Ahern to make a statement on 11 May 1999 acknowledging and apologising for the abuse suffered by children in institutional care. Mr Ahern acknowledged that the effects of abuse 'ruined their childhoods and has been an ever-present part of their adult lives', and admitted that they were 'grossly wronged, and that we must do all we can now to overcome the lasting effects of their ordeals'. Several strategies were implemented to address the situation including the establishment of the Commission to Inquire into Child Abuse. On 3 October 2000 the Minister for Education and Science announced that the government had agreed in principle to a compensatory scheme, and in February 2001 he revealed that the government had agreed to his plan for the scheme. The Residential Institutions Redress Bill was presented on 11 June 2001, establishing the Compensation Advisory Committee. The CAC responded to the Minister for Education and Science in January 2002 in its report entitled Towards Redress And Recovery, making recommendations about the form and content of the compensatory scheme. The Residential Institutions Redress Act 2002 was passed on 10 April 2002, establishing the Residential Institutions Redress Board and associated bodies (eg the RIR Review Committee) and its functions and powers. The Residential Institutions Redress Board scheme, funded by government with contributions from responsible religious authorities, was launched on 2 December 2002. The average award to date is 80 000 euros (approximately $A137 000). 2.1.3 Tasmania
Albeit on a vastly reduced monetary scale, the Tasmanian government has established a similar scheme pursuant to a Protocol Agreement made between the Ombudsman and the Department of Health and Human Services. The review of claims system was established after revelations in July 2003 of sexual abuse of a former State ward in foster care. While not establishing an inquiry into the abuse of children in State care, the Tasmanian government established this system to assist people who had made claims of past abuse.
In the speech presenting the scheme to Tasmania's Parliament, the themes of compensation as a moral imperative, and of the unfairness of individuals in this class being excluded from access to justice by limitation statutes, are evident:
The Government takes the issue of past abuse of children in State care very seriously and through this process is seeking to provide a reasonable basis for closure upon what, for them, has been a difficult chapter in their lives…A substantial number of the claims that have been made to the Ombudsman relate to actions that occurred many years ago and, in most cases, some decades ago. It is likely that in most of these cases civil legal action can no longer be taken because of the time that has elapsed. This is one of the reasons that the Government has put into place the[se] procedures…The Government believes that the victims of past abuse ought to at least receive some acknowledgment of their experience and, where appropriate, some form of compensation.
Under the Tasmanian scheme, claims must first be made to the Ombudsman. A Review team investigates the claim, which includes record-checking and interviews. Part of the interview process involves finding out what the claimant wants from the process. Desired outcomes can include an apology; official acknowledgment that the abuse occurred; assistance finding lost family members; guided access to their Departmental files; professional counselling; payment of medical expenses; compensation; and an assurance that children in future State care will not be subjected to abuse. Completed files for each claimant are referred to the Department of Health and Human Services for further action if recommended. An Independent Assessor then assesses claims and decides whether an ex gratia payment is made. The Assessor can determine payments up to $60 000 or more in exceptional circumstances. 2.2 Amendments of statutes of limitation
An easy strategy for governments in this situation to escape civil liability is to deny survivors of long past institutional abuse access to courts by pleading the expiry of the permitted amount of time in which an individual can bring legal proceedings. This strategy bars plaintiffs from access to the courts to have an opportunity of presenting their cases, with the attendant denial of any possibility of receiving an award of damages. As will be seen in Part 4, this is what the Queensland government has done.
Yet there is a clear choice to be made. Expiry of the limitation period is irrelevant unless the defendant pleads it. The statutory time limit does not operate automatically to bar a plaintiff's action. Furthermore, the court will not consider the expiry of time of its own volition. This means that the government has to choose to obstruct plaintiffs in these cases.
The Law Commission of Canada made two recommendations in this respect. First, legislatures should amend limitation periods in these cases so that survivors of institutional abuse cannot be impeded from bringing civil actions. Second, governments should not rely on limitation periods in these cases to prevent plaintiffs proceeding to trial. These recommendations are motivated by recognition of the ethical, practical and theoretical circumstances precluding plaintiffs in these cases from bringing actions within time.
Governments in other jurisdictions have made choices that illuminate those made to date by the Queensland government. In Canada, British Columbia, Saskatchewan, Manitoba, Ontario, Newfoundland, the Northwest Territories and Nunavut have abolished time limits for civil actions based on sexual assault, giving adult survivors of abuse unlimited time in which to institute proceedings. In Ontario, Manitoba and Saskatchewan, the abolition of time limits in which to proceed also applies to actions for trespass to the person, assault or battery where at the time of the injury the person was in a relationship of financial, emotional, physical or other dependency with one of the parties who caused the injury. In Ireland, amending legislation in 2000 gave plaintiffs a further year in which to bring civil actions arising out of acts of sexual abuse. In several American jurisdictions, the effect of limitations statutes on survivors of child sexual abuse is being eroded. In California, legislative amendments in 2002 revived certain classes of expired claims to allow civil proceedings against the Roman Catholic Church for sexual abuse allegedly committed by priests, and enabled those claims to be launched in the year 2003.
Governments in Ireland, Canadian provinces and most recently Tasmania have acted to compensate survivors of abuse and in some cases have amended limitation statutes to enable those individuals who wish it to gain access to courts. In both moral and legal senses, the weight and scope of the responses in other jurisdictions provides a standard of government conduct against which the responses of the Queensland government must be measured. It is therefore of moral and legal significance that in comparable circumstances, the Queensland government has not taken any such action.3 The Queensland government response
It is difficult to imagine a response that in moral and practical substance contrasts more starkly with these jurisdictions', than that of the Queensland government.
The Forde Inquiry Recommendation 39 provides:
That the Queensland Government and responsible religious authorities establish principles of compensation in dialogue with victims of institutional abuse and strike a balance between individual monetary compensation and provision of services.
Recommendation 40 requires the establishment of support services such as counselling, and is conceptually and substantially different from Recommendation 39. Recommendation 39 is focussed on developing a method of monetary compensation, which would exist alongside the support services established under the purview of Recommendation 40.
Despite representations to the contrary, there has been no action taken to implement Recommendation 39. The government has claimed that measures taken in establishing the Forde Foundation constitute responses to Recommendation 39. However, this is not true, since the powers and functions of the Forde Foundation clearly do not count in this respect. Those powers and functions address support services, falling within Recommendation 40. The Forde Foundation is neither empowered nor equipped to award monetary compensation.
The government's failure to compensate survivors of institutional abuse has been made even more reprehensible because the flouting of Recommendation 39 has been accompanied by deceptive statements about the availability of civil legal remedies. The government's 1999 response regarding Recommendation 39 was to advise former residents who had suffered abuse to take civil action in the courts through existing legal processes. This response was repeated in its 2001 Progress Report. That year, the government recognised that the Forde Monitoring Committee was dissatisfied with the government's inaction and had urged the government to consider Canadian compensation schemes with a view to implementing a similar scheme. The Monitoring Committee found that no adequate response to Recommendation 39 had been made, and urged the government and religious organisations to do three things: treat the matter of compensation for former residents as a serious issue that urgently needs to be addressed; consider the compensation models discussed by the Law Commission of Canada as methods for use in Queensland; and establish a forum for the processing and resolution of compensation claims.
Despite a clear finding of an omission to act, the exhortation by the Monitoring Committee to take action, and even the release in 2002 of a policy by the Queensland National-Liberal Opposition directed at remedying the situation, the government has since continued its failure to compensate victims of State care. In its 2001 Progress Report, the government maintained that 'the appropriate mechanism for aggrieved people seeking monetary compensation is the Queensland court system. To establish a separate arrangement for one group of Queenslanders over another would be iniquitous.'
When made, this response compounded the abuse suffered by all individuals in State and religious institutions, and it continues to do so. This response is hypocritical since it is exactly this group of people that is treated differently in adverse ways by the legal system than other claimants. Survivors of abuse are effectively 'under a separate arrangement' because of the unique nature of their cases and injuries. As well as being hypocritical, the response is cruel because it consciously denies access to redress to those who deserve it, and because in doing so it causes further psychological, emotional and financial distress (the government is aware that Legal Aid does not provide assistance in these cases). Finally, the response is deceptive because the government knows that provisions under limitations and personal injuries statutes make it both costly and extremely unlikely to gain legal redress. In 2001, the position under the Limitation of Actions Act 1974 made civil compensation virtually impossible for survivors of long past abuse. Since then, new legislation imposing further conditions on the conduct of personal injuries actions have made that position more difficult, more protracted, and more costly. Part 4 gives a synopsis of these two situations.4 Compensation through the Queensland court system4.1 Pre-2002: the Limitation of Actions Act 1974
At the times of the Forde Inquiry and the government's 1999 and 2001 responses to Recommendation 39, the personal injuries litigation framework in Queensland produced a lengthy, costly and almost certainly negative outcome for plaintiffs in cases of long-past sexual abuse in State institutions. The difficulties presented by Queensland's Limitation of Actions Act 1974, which gives plaintiffs in this context three years from the attainment of majority in which to institute proceedings, have been thoroughly documented. The key difficulties are first, that for reasons documented in worldwide psychological literature, plaintiffs in this class will commonly be psychologically unable to institute legal proceedings within time; and second, these plaintiffs will almost certainly fail to be granted an extension of time in which to proceed, because of the passage of time and the attendant deemed prejudice to the defendant's right to a fair trial, among other reasons. These difficulties are not remedied in Australian law by the equitable doctrine of fiduciary duties.
These problems are particularly prominent for plaintiffs alleging long past sexual abuse, but are arguably no less insuperable for plaintiffs alleging damage caused by long past institutional physical and emotional abuse. There are several reasons for this. Just as adult survivors of child sexual abuse typically will avoid stimuli connected with the abuse until psychologically able to confront it, so too may survivors of physical and emotional abuse in this context. Just as the long-term injuries caused by child sexual abuse, typically Post Traumatic Stress Disorder and depression, take time to manifest and to become known to the survivor of child sexual abuse, so too will the injuries caused by physical and emotional abuse. Just as adult survivors of child sexual abuse commonly are precluded from commencing litigation within the time set by statutory provisions, due to the nature of the acts inflicted on them - which are frequently accompanied by feelings of guilt and shame, and by threats and an imposed sense of responsibility - adult survivors of physical abuse routinely inflicted on them as children by authority figures in a position of trust will commonly not recognise that they have been wronged until long after the attainment of majority.
What this means is that the government's advice that survivors of institutional abuse should pursue civil litigation was promoting the institution of legal proceedings by citizens who had been physically and psychologically damaged by the State; proceedings that would cost those citizens time, money, and further emotional and psychological trauma, and which were bound to fail. The example of one of these individuals instituting legal proceedings against the State of Queensland, with the case reaching the Queensland Court of Appeal, is instructive. In Carter, the government pleaded the expiry of the limitation period as a defence, and the plaintiff was denied a civil trial. The plaintiff had been taken into State care when two months old and in 1961 she was placed at Neerkol Orphanage, a private institution licensed to care for children, run by an order of nuns. Between 1961 and 1972 (aged 1-12), the applicant suffered personal injuries from numerous incidents of physical and emotional cruelty from the nuns. She had severe speech impediments and was teased cruelly about these, and she endured regular severe physical assault including being beaten, burned and near-drownings in the bath. She endured emotional cruelty and torture (eg solitary confinement, and being tied to a pole), emotional neglect, and regular forced use of sedative drugs. From the age of five or six, she allegedly suffered numerous incidents of severe sexual assault by a Neerkol employee, and from when she was aged seven, she allegedly suffered almost daily rape by this employee. In August 1968, aged eight, she complained to government employees of physical and sexual abuse, but she was not believed and instead was beaten for complaining. Aged 15, she fled State care to live on the streets.
When she instituted legal proceedings against the institutions responsible for her suffering, this plaintiff received an apology and a legal settlement from the religious institutions involved. These institutions did not plead the expiry of time as a defence. In contrast, the Queensland government did not settle the matter, and instead successfully pleaded expiry of time as a defence, after its direction to survivors to take action against the State in the courts. This plaintiff, and others, have therefore not been able to access civil trials involving the State government. Any humane assessment of the government's statements in 1999 and 2001, and of its responses during litigation, must condemn those statements and responses in the strongest possible terms.4.2 Post-2002: the Personal Injuries Proceedings Act 2002
As if the initial abuse and neglect at the hands of the State was not painful enough, and as if the response to the revelation of the abuse by recommending futile, costly and traumatic litigation was not cruel enough, there has since 2001 been a further deterioration in the situation. Legislation passed in 2002 added still more difficulties for any person in this class of claimant who wants to pursue perpetrators of abuse in the courts. Whether by design or omission, the Personal Injuries Proceedings Act 2002 (Qld) contains no provision about how to proceed if the limitation period under the LAA has expired. An associated problem is that there is no definition of what constitutes a reasonable excuse for delay in commencing litigation. These gaps in the legislation create confusion and further costly and time-consuming obstacles that must be overcome before a plaintiff can gain access to remedies.4.2.1 Personal Injuries Proceedings Act 2002
The original Personal Injuries Proceedings Act 2002 (Qld) commenced on 18 June 2002, introducing a statutory framework governing all claims for personal injuries occurring on or after 18 June 2002. Most significantly, this framework includes a pre-court claim, discovery and negotiation process that must be observed by claimants and respondents. The Act's explicit purpose is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury. Second Reading Speeches and Explanatory Notes explain that the purpose of the Act is to reduce the number and size of legal claims, with the accompanying effect of decreasing the premiums charged by insurance companies for public liability and medical indemnity insurance. This object is to be achieved by, among other things, providing a procedure for the quick resolution of claims, promoting early settlement of claims, ensuring that a person may not start a proceeding in court without being prepared for resolution of the claim by settlement or trial, limiting awards of damages, and minimising the costs of claims.
Despite the fundamental legislative principle that legislation should not retrospectively adversely affect rights and liberties, or impose obligations, soon after commencement the Act was amended to make the original Act apply retrospectively. The amended Act, assented to on 29 August 2002, makes the pre-court procedures apply to all claims for damages for personal injury, including those claims where the incident producing the claim occurred before 18 June 2002. Therefore, the Act now applies to all personal injury claims regardless of when the incident producing the injury occurred. It therefore applies to all possible claimants covered by the Forde Inquiry. This retrospectivity produces many but not all of the difficulties in this context.4.2.2 Pre-court process
The pre-court process imposes obligations on claimants and respondents with the object of providing a mechanism for the speedy settlement of disputes out of court. The process begins with the claimant being compelled to provide a respondent with a written notice of the claim. Part 1 of the notice of claim must be given within nine months of the day of the incident giving rise to the injury, or if the symptoms are not immediately apparent then within 9 months of the first appearance of the symptoms; or within one month after first instructing a solicitor to act on their behalf, whichever is earlier. If the claimant is a child, a parent or guardian may give the notice, but the pre-court requirements are suspended until majority. Therefore, if the plaintiff is proceeding for an incident occurring when they were a child, the notice of claim must be lodged within 9 months of their 18th birthday, or within one month of them instructing a solicitor, whichever occurs earlier.
A key provision states that if the notice is not given within time, the obligation to give it continues - the pre-court procedures are provisions of substantive law under s7(1) - and a reasonable excuse for the delay must be given. If a notice of claim is not given within time, then the respondent must identify the non-compliance and state whether the non-compliance is waived. If the non-compliance is not waived, at least one month must be given to the claimant to satisfy the respondent that compliance has been observed, or to so comply.
A complying notice of claim imposes obligations on the respondent. The respondent must give written acknowledgment that they are a proper respondent to the claim (s 10); and under s12(2)(a) the respondent must give the claimant written notice stating that they are satisfied that the notice of claim is a complying Part 1 notice of claim. Further obligations are then placed on the respondent and the claimant to attempt to resolve the claim through settlement. 4.2.3 Problems with notice of claim requirements in this context
Some of the difficulties for claimants in this context flow from the Act's retrospective operation. For claimants who suffered injury long before the commencement of the Act, it is logically and practically impossible to meet the obligation to submit a notice of claim within the time allotted, since the Act and its obligations did not exist both at the time of the events and at the claimants' majority. For example, a claimant born on 1 January 1960, who was abused in an institution between 1967 and 1978, cannot have submitted a notice of claim within the time prescribed. Because the Act is retrospective, the claimant's time period in which they had to submit the notice of claim would be nine months from turning 18. This means that their notice of claim was due on 1 October 1978. At that time, the Act did not exist, nor did the notice of claim requirement, and nor did the notice of claim form. It was impossible for the claimant to comply with the statutory requirement.
By retrospectively imposing statutory obligations that are impossible to satisfy, and without making provision exempting claimants in these cases, or at least clarifying what claimants in this class should do, the Act has done two things. First, it has added to the legal confusion and procedural legal complexities that plague plaintiffs in this class. Second, it has added to legal costs and judicial proceedings to seek clarification of what claimants in this class are required to do.
Claimants in this position who submit a notice of claim can be impeded from proceeding. In responding to the notice of claim, the respondent can argue that the notice is noncompliant because it was not given within nine months of the incident, and can refuse to waive compliance. The claimant's reply that it was logically and practically impossible to do so, and therefore there is a reasonable excuse for delay, can be rejected. The claimant could argue that if the period of limitation is deemed to have expired, then the Act does not make provision as to how a claimant in this situation is to lodge a notice of claim. A respondent can refuse this claim as well.
As a result, a claimant can be forced to take one or even two further steps before even getting to the stage of seeking the court's discretion under the Limitation of Actions Act for an extension of time in which to proceed. First, claimants can be forced to bring originating applications to seek court leave to proceed. Section 18(1)(c)(ii) empowers the court to authorise the claimant to proceed with the claim despite the non-compliance, and this leave is not contingent on the demonstration of a reasonable excuse for delay, although the reason for delay is relevant. Yet even if this leave was granted, the need to apply for it causes delay and escalation of costs, which is avoidable and contravenes the purposes of the Act.
Second, claimants who are relying on the recent discovery of a material fact of a decisive character, where the period of twelve months after the discovery of which fact the time in which to proceed is nearing expiry, will have to seek court leave to proceed on the basis of an urgent need to proceed. If a claimant in this situation is successful in gaining this leave to proceed, the proceeding is stayed, and the notice of claim must be submitted, which takes the claimant back to the beginning of the process, therefore creating the need to seek court leave under s 18 to proceed.
The case of Grimes v Synod of the Diocese of Brisbane demonstrates some of these and associated problems. The applicant sought leave under s 43 to commence proceedings despite non-compliance with the Act, based on an urgent need to start a proceeding. The applicant claimed he had suffered incidents of sexual abuse from 1968-1971. He proposed to claim damages for negligence, breach of contract, breach of fiduciary duty, and unconscionable conduct and damages under the Trade Practices Act 1974 (Cth). Because of the lapse of time between the events and the claims, the claims were barred under the Limitation of Actions Act, apart from the claim based on breach of fiduciary duty.
The out-of-time claimant had in the last twelve months discovered a material fact of a decisive character which, for the purposes of the LAA, may entitle him to an extension of the limitation period, and this twelve month period was about to expire. This would constitute an urgent need to commence proceedings since under the Limitation of Actions Act, an application to extend time must occur within twelve months of the discovery of the material fact. In this circumstance, the danger is that the s 43 application becomes a quasi-s 31 hearing. Muir J's comments imply that this is what occurs, and subsequent judgments also indicate this.
Yet on an application under s 43, if the court commences by seeking to determine if the client's material fact is hopeless or otherwise before deciding if there is an urgent need to file proceedings, then claimants are put at a considerable disadvantage. The reason why this approach to an application under s 43 is undesirable is that before the PIPA, a claimant could file court proceedings without impediment within 12 months of a material fact, to safeguard the claim. An application under the Limitation of Actions Act for an extension of time, which is an extensive task involving considerable expense and resources, could then be lodged at any time up to and including the trial, with the claimant having the benefit of full investigation and disclosure from the respondent. This investigation and the respondent's disclosure can strengthen the argument for extending time, or can yield even more persuasive evidence of a decisive material fact. By being forced to make submissions on limitation issues at the s 43 application, the claimant is denied the benefit of full disclosure from the respondent, and is compelled to advance the extension argument without a full and proper investigation.
Among other reasons, the respondent argued against the exercise of leave on the ground that the applicant had not adduced evidence to demonstrate the possibility of obtaining an extension of time under the Limitation of Actions Act. Although this argument was not accepted, the court's comments suggest that the urgent need was not assessed simply by acknowledging the formal facts about expiry of time. Rather, the assessment of urgent need is undertaken by a substantive examination - albeit in less than full degree - of the merits of the s 31 application. This examination aspect does not appear to be incorporated in s 43 and it is submitted that it should be the sole province of the court hearing the s 31 application to examine that application's merits. Although the court did grant leave to start a proceeding, the proceedings would be stayed under s 43(3) and the applicant would then be forced to observe the notice of claim requirements, introducing the problems noted above and the need to apply under s 18 for further court authorisation to proceed.5 Conclusion
It is tragic that the existence of the Forde Inquiry and the CMC Inquiry should have been necessary. However, these inquiries should constitute a further advance in several senses. They have the primary function of illuminating events previously concealed, of discovering the truth about what happened. They can acknowledge survivors' testimony and accept the veracity of their accounts. They can recognise the suffering that survivors endured and apologise for it. They also provide the opportunity for redress. Perhaps most importantly, the findings of these inquiries should inform future government action and policy so that these events are not repeated.
The Queensland government bears the onus of explaining why it has rejected the moral imperative within Recommendation 39 to compensate individuals who were assaulted, raped, psychologically abused and neglected while living in its institutions and in its care. It is no answer to say that the events that occurred then were acceptable by that time's standards of conduct, and should not be judged on the standards of conduct of 2004. The Forde Inquiry, if it needed to, established that the acts perpetrated on individuals in State institutions lay far beyond any acceptable limits of human conduct. It is no answer to say that the State cannot afford to compensate survivors of the abuse. The amount involved would not be impossible; other States have afforded it. If the funds do not exist now - a dubious proposition - then the State should find a way to create them. Moreover, the State is not the only responsible source of funding since the religious authorities responsible are also morally obliged to contribute to the compensation fund, and should be pressured by the State to do so.
The government failed to ensure that these citizens were treated appropriately at the time they lived in its institutions and in its care. Now, it has the opportunity and the moral obligation to redress the suffering that was inflicted because of former negligence. By failing to do so, it is aggravating the initial abuse. By directing survivors of that abuse to take futile, costly action in the courts, when the government was opposing those individuals' access to the courts, and when the courts were not permitting such action to proceed, further psychological and financial damage was inflicted on any survivors who took that advice. Finally, by enacting legislation without provision for how individuals in this situation are to proceed, adding new passages to the existing legislative and judicial labyrinth, the government has compounded the suffering of these people.
Governments elsewhere have acted appropriately in this context. To date, Queensland's government has not. The lack of compensation and the legislative impediments to courts are the two hallmarks of Queensland's response. So far, measured against the five principles that the Law Commission of Canada declared must be respected in all processes through which survivors of institutional abuse seek redress, the Queensland government has failed on all counts. Survivors of institutional abuse do not possess all information necessary to make informed choices about what course of redress to undertake. They do not have access to sufficient counselling and support. Those conducting and managing the process do not have the training necessary to enable them to understand the circumstances of survivors. Continual efforts to improve redress programs have not been made. The redress process has caused further harm to survivors.
Apart from policy formation and implementation to decrease the future incidence of child abuse and neglect, both within State institutions and beyond them, the first urgent need in this context is the delivery of redress for past wrongs. For survivors of institutional child abuse, this redress can and should be secured through a compensation scheme. On any assessment of the situation, it is difficult to produce a morally persuasive reason not to implement such a scheme. For survivors, it would be far better delivered late than never, both in pragmatic and moral terms. For the State, it would not be economically impossible. The governments of the 1990s and 2000s in Queensland are not responsible for what happened in Queensland institutions before their tenure, but contemporary governments are responsible for how they act with public trust and funds when the shortcomings of former governments are revealed. To continue denying the State's former culpability in allowing the damage inflicted on children in its care, and to continue to withhold appropriate redress, current governments are inflicting their own damage.
The second urgent need is for legislation that recognises the unique features and consequences of child abuse, and which adjusts time-related provisions accordingly, to enable access to civil courts for survivors of child abuse. This has happened in other jurisdictions. To say that this would benefit both past and future survivors of institutional and non-institutional abuse is incorrect; it would merely provide them with a more similar chance of gaining access to justice as all other classes of personal injury claimant. This is not a benefit, but the better provision of an entitlement. Protection for defendants must not be compromised, but this is easily achievable.
At the least, the Limitation of Actions Act time limit of three years from majority in which to institute proceedings should not apply to cases of childhood abuse perpetrated by persons on whom the victim was dependent. The PIPA pre-court process aimed at negotiation and speedy settlement of claims should perhaps not be made only prospective, but survivors of institutional and non-institutional abuse - especially long past survivors - should not be excluded from the civil litigation process. In the PIPA, a definition of 'reasonable excuse' for delay in submitting a notice of claim should expressly include cases of childhood abuse, hence allowing victims of childhood abuse to institute proceedings and comply with the pre-court process. The government has the responsibility and the power to choose what happens for these citizens. It also has the moral obligation to make a justifiable choice. It should take action now to prevent further suffering in the future.
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