High Court of Australia unanimously decides against granting time extension to an abuse victim in a case of extraordinary delay.

In Prince Alfred College Inc v ADC [2016] HCA 37, the High Court of Australia has unanimously decided that a victim of child sex abuse in the 1960's should not have been granted an extension of time to issue proceedings in the Supreme Court of South Australia in 2008.

This decision relates to South Australian legislation (the Limitation of Actions Act 1936), but it is an important reminder of the judicial discretion with respect to extending limitation periods in all Australian jurisdictions. Of particular relevance to this decision was:

  • The significant prejudice to Prince Alfred College (PAC) due to the absence or death of critical witnesses and the loss of documentary evidence, particularly in determining whether the school could be found vicariously liable for the acts of its employee.
  • The victim's decision in 1997 not to commence proceedings against PAC and the victim's earlier financial settlements with the school.

Litigation background

The Limitation of Actions Act 1936 required the victim to issue proceedings against PAC by 17 July 1973, which was three years after his 21st birthday. In 1997, the victim accepted an offer from PAC to pay his medical and legal fees to date as well as his son's school fees, but the victim decided not to commence proceedings against PAC. The victim instead issued proceedings against the alleged offender, and settlement was eventually reached in 1999.

In 2007, a psychiatrist reported that the victim would never fully recover nor would he be able to manage a business again.

The victim issued proceedings against PAC in the Supreme Court of South Australia in December 2008, alleging that PAC breached its duty of care and that it was vicariously liable for the wrongful acts of the alleged offender. The victim also sought an extension of time within which to issue proceedings against PAC.

The primary judge dismissed the victim's claim on the basis that PAC's liability had not been established, and further, that leave would have been refused to grant the victim an extension of time to issue proceedings due to the prejudice that would cause to PAC.

On appeal, the Full Court of the Supreme Court of South Australia unanimously allowed the victim's appeal on the basis that PAC was vicariously liable for the alleged offender's acts and that an extension of time to issue proceedings should have been granted.

The judgment and its implications

The High Court unanimously decided that the victim's delay of over 11 years between the resolution of any claim against PAC in 1997 and his commencement of proceedings in 2008 was not justified on the facts of the case. The loss of the victim's psychology records as well as the death and sickness of several key witnesses was also deemed relevant by the High Court in coming to its decision.

In these circumstances, the High Court allowed the appeal and decided that the victim was not entitled to an extension of time pursuant to the Limitation of Actions Act 1936. Essential to the High Court's decision was its view that it was no longer possible for PAC to receive a fair trial. In particular, the High Court noted that a detailed examination of the victim's claim in relation to vicarious liability could not occur due to the limited evidence available from colleagues of the alleged offender and other witnesses from the time of the abuse. This was sufficient to dispose of the appeal.

Whilst the High Court's decision in Prince Alfred College Inc v ADC can to some extent be confined to its individual facts, it provides an important reminder to all parties involved in litigation that the judiciary still possesses a broad discretion with respect to limitation periods, and that time-based defences can be a potent tool for defendants in certain circumstances. It is an all too rare instance of the key element of prejudice being triggered by the liability trail having gone cold, as opposed to deficiencies in medical records and the like.