CITATION: Gutsche v Northern Territory of Australia & Young (deceased)
[2003] NTMC 052






FILE NO(s): 20317821, 20302102, 20317821
20317792, 20317788, 20317784
20302110, 20317818, 20302107
20302112, 20312100

DELIVERED ON: 13 October 2003


HEARING DATE(s): 24 September 2003

JUDGMENT OF: Judicial Registrar Monaghan



Extension of time to file application for Crimes Victims Assistance
Prejudice as defendant deceased
Obligation on respondent to produce positive evidence of prejudice

Cases referred to:
Eldridge v Northern Territory of Australia & Riley [2001] NTMC76,
Selwyn Short v Northern Territory of Australia & Stephen Ariston [2001]NTMC42, Vincent Benjamin Soloman v Christopher Raymond Webbe & Northern Territory of Australia 224/1992,
Commonwealth of Australia v DKB Investments Pty Ltd 64/1989,
Braedon v Hyndes 188/1986,
Forbes v Davies & Commonwealth of Australia NTSC131/1993,
Lia Chin v Northern Territory of Australia & Angelo Spina (unreported decision of Wallace SM delivered 22 January 2001),
Northern Territory of Australia v O’Connor & another [2003] NTSC56,
Brisbane South Regional Health Authority v Taylor (1996) 186CLR541
Crimes (Victim’s Assistance) Act


Applicant: G Clift
Respondent: K Karlsson

Applicant: De Silva Hebron
Respondent: Halfpennys

Judgment category classification: B
Judgment ID number: [2003] NTMC 052
Number of paragraphs: 45


No. 20317821, 20302102, 20317821, 20317792, 20317788, 20317784, 20302110, 20307818, 20302107, 20302112, 20312110

[2003] NTMC 052






(Delivered 13 October 2003)

1. The applicant has filed 11 Crimes (Victim’s Assistance) Applications and presently before me are 11 applications for extensions of time relating to those matters. The interlocutory applications are opposed by the Northern Territory.
2. The substantive applications arise out of a history of domestic violence suffered by the applicant at the hands of the deceased who died on 11 August 2001. The applications cover a period from May 1997 until August 2001. The assaults on the applicant ended when on 11 August 2001 the applicant fatally stabbed the deceased. The applicant pleaded guilty to committing a dangerous act pursuant to section 154 of the Crimes Act. She was convicted and sentenced to three years imprisonment with that term being wholly suspended.
3. A historical schedule of the applications before me is listed below:

20317878 Repeated rape, deprivation of liberty, assault 05/97 03/09.03 Approximately 6 years 4 months
20317784 Threat to kill (gun to head) and rape 06/97 04/09/03 Approximately 6 years 3 months
20302112 Verbal assault (threats to harm), assault and attempted rape 02/98 & 03/98 07/02/03 Approximately 5 years
20302100 Verbal assault and assault, threat to kill 03/99 07/02/03 Approximately 3 years 11 months
20317821 Verbal assault, threat to kill, assault, repeated rape 11/99 – 12/99 04/09/03 Approximately 3 years 10 months
20302110 Verbal assault, assault, threat to kill, deprivation of liberty, repeated rape 11/99 – 12/99 07/01/03 Approximately 3 years 2 months
20317792 Assault, repeated rape 07/00 04/09/03 Approximately 3 years 2 months
20317788 Threat to kill (gun to head), rape 08/00 04/09/03 Approximately 3 years 1 month
20302107 Assault, threats, deprivation of liberty, repeated rape 01/01 07/02/03 Approximately 2 years 1 month
20302102 Threat to kill, rape, assault 08/01 07/02/03 Approximately 1 year 6 months
20317821 Repeated rape, deprivation of liberty 08/01 04/09/03 Approximately 2 years 1 month

4. Section 5(1) of the Crimes (Victim’s Assistance) Act allows a person to apply to the court for an assistance certificate within 12 months after the date of the offence in question. Section 5(3) states the “the Court may, as it thinks fit, extend the period within which an application under this section may be made”. The discretion to extend time is unfettered (see the comments of Loadman J in Eldridge v NTA [2001] NTMC 76). Several reported decisions however are frequently referred to as giving guidance as regards the manner in which the court’s discretion should be exercised. These decisions include Vincent Benjamin Solomon v Christopher Raymond Webbe & Northern Territory of Australia 224/1992 and Commonwealth of Australia v DKB Investments Pty Ltd 64/1989. More recently, the High court decision in Brisbane South Regional Health Authority v Taylor (1996)186CLR541 was discussed and distinguished in the decision of Thomas J in NTA v O’Connor & Rapaic [2003]NTSC56. I will consider these decisions further after summarising the background to these applications.
5. The applicant commenced a relationship with the deceased in February 1997. They commenced living together. Approximately six weeks after the relationship began the deceased’s behaviour towards the applicant began to change and he became violent towards her and possessive of her.
6. The affidavit of the applicant sworn 8 August 2003 – some 25 pages in length – discloses a history of abuse, intimidation and violence perpetrated by the deceased against the applicant. Reports were made to Police on 8 November 1997 and 28 March 2000 and 11 August 2001. The assaults, deprivation of liberty and threats to harm occurred right up until the night of the deceased’s death on 11 August 2001.
7. I note from the transcript provided that this history of violence was not challenged by the prosecution and was accepted by Mr Justice Riley when he sentenced the applicant for the stabbing which led to the deceased’s death. Justice Riley accepted the evidence of two psychiatrists, namely Dr Walton and Dr Markou, that the applicant was regarded as “falling into what had been aptly termed the battered wife syndrome”.
8. To my mind, the periods of delay that require some explanation fall into five separate categories as follows:
a. failure to report assaults up to the date of death of the deceased on 11 August 2001;
b. failure to report assaults between the date of death 11 August 2001 and August 2002 when the applicant was served with Crimes Victim’s Assistance applications relating to the death of the deceased and naming her as respondent;
c. the period between August 2002 and 17 October 2003 when the applicant first contacted De Silva Hebron;
d. the period between 17 October 2002 when applicant consulted De Silva Hebron and the filing of the first 5 Victim’s Assistance applications in January and February 2003; and
e. the delay between filing the first 5 applications referred to above and the next 6 applications in September 2003.
Some of the reasons for delay in the various categories listed above are overlapping.
9. Mr Clift, counsel for the applicant, attempted to explain the delays in each of the categories referred to above. He submitted, and the applicant’s affidavit evidence supports the view that throughout the applicant’s defacto relationship with the deceased until his death on 11 August 2001, the deceased’s behaviour towards the applicant prevented her from making applications. The deceased’s obsessive need to control every aspect of the applicant’s life is clearly apparent in her affidavit evidence of 8 August 2003. At paragraph 54 she states;
“Simon would on a daily basis check my phone calls on my mobile phone. He had the home phone bill itemised and he dialled * 10 # to see who it was I had last spoken to and would constantly interrogate me about who had rung and who I had rung and what our conversations had been. He would cut up or burn dresses and other clothing of mine he did not approve of”.
10. Again at paragraph 57 the applicant states;
“I was not able to simply pack up and leave Simon. I realised what Simon was capable of. As described above, he made statements in front of other people saying that he would kill me if I left him which made me believe that he could kill me. I believed that he was capable of doing anything, due to what he told me about his past, and his violent and unpredictable behaviour towards me and others. In addition to this, on several occasions, Simon had made threats to kill me. On at least two occasions he pulled a gun to my head”.
11. Paragraph 61 of the same affidavit states
“It was almost a daily occurrence that Simon would remind me that if I ever left him he would track me down and kill me. He reminded me that I was a mother of three children and that Australia was a small place and that no matter where I was he would find me, and that when he did he would kill me. If I ever dared to say to him, “this relationship isn’t working, I’m not happy and you are not happy” he would reply “I have got that gun out in the shed and you have got kids to look after. Australia is a small place, always remember that I have got a gun in the shed”. He would describe to me all of the different methods that a person could use to find someone in Australia. He said it was as easy as looking them up on the electoral role, or ringing up and ordering a pizza with their name and following the car”.
12. Some corroboration of the obsessive control the deceased held over the applicants life is seen in the report of Dr Sankarayya dated 23 June 2003. He states at paragraph 3;
“I was aware during her relationship with Simon Young that she was subjected to severe emotional and physical abuse by him. This started soon into their relationship and continued until his death. The abuse was clear at many of the consultations that we had, at almost all of which Simon Young would be present controlling the content of such consultation and offering responses on Susie’s behalf. Susie had clear symptoms of depression but was either afraid or unwilling to voice her feelings……There is a term battered wife syndrome that I believe she suffered from and adequately described her state at the time”.
13. It appears to me on the basis of this evidence alone that the applicant can explain her delay in filing her Crimes Victim’s Assistance applications for the period up to the death of her defacto partner Simon Young on 11 August 2001.
14. There is a further reason why the applicant was unable to file any applications with respect to various assaults for the aforementioned period. That reason is found in her affidavit sworn 7 February 2003 wherein she states
“I was not aware of the Crimes Victim’s Assistance scheme until approximately August 2002 where I was served with several Crimes Victim’s Assistance applications naming me as the second respondent. On or about 23 August 2002 I attended the Northern Territory Legal Aid Commission for advice in relation to those applications. I saw a solicitor named Bill Piper. I explained the circumstances of my relationship with Simon Young to Mr Piper, particularly the emotional, sexual and physical abuse which I suffered throughout the entire relationship…..Mr Piper informed me that I would be able to make my own applications in relation to the injuries I suffered as a result of the abuse”.
15. I note that an applicants ignorance of their rights and of the existence of the twelve-month time limit may be considered sufficient reason to explain a delay in filing an application. At page 13 of Braden V Hines 188/1988 Maurice J stated as follows;
“The fact that the reason for the plaintiff doing nothing until the limitation period had nearly run out was his ignorance of the law, so to speak, enhances rather than diminishes the strength of his claim to the exercise of the courts discretion. I reject the submission that ignorance of the law ought not to be taken into account in a plaintiff’s favour. In a community with the Northern Territory cultural and ethnic diversity, to apply any such dictum would inevitably lead to significant injustice in a potentially large number of cases”.
16. In the case before me, I accept that the applicant’s ignorance of her rights explains her failure to file Crimes Victim’s Assistance applications at an earlier date.
17. The next period to be considered, the period from August 2002, when the applicant first spoke to Mr Piper solicitor and November 2002 when she consulted De Silva Hebron. It is clear from affidavit evidence filed that Mr Pipers first intention was to attempt to reach some sort of settlement with the Northern Territory of Australia whereby in consideration for Ms Gutsche not pursuing her claims against the deceased, the Territory might agree not to recover from her any monies paid by them to the deceased family in respect of their own claims under the Crimes (Victim’s Assistance) Act. A letter was written by Mr Piper in August 2002 to the solicitor for the Northern Territory requesting a response within seven days. There is no further explanation for the delay between August 2002 and mid-October 2002.
18. It may be that this delay could be explained by Mr Piper if given the opportunity. I note however that both Braedon v Hyndes (Supra) and Forbes v Davies and Commonwealth of Australia NTSC131/1993 support the view that an applicant should not be prejudiced by the action or inaction of a solicitor in any event and that an applicant’s right to sue their solicitor in negligence, for example, should not be taken into account when a court is deciding whether or not to grant and extension of time.
19. Further, this unexplained delay between August and November 2002 is a relatively short period and unless it could be shown that this delay caused some specific prejudice to the Northern Territory, a matter I will deal with later, I do not consider it to be significant.
20. The next period to be explained is from 17 October 2002 until the first Crimes Victim’s applications were filed on 7 January 2003. I note from the affidavit of Ms Tomlinson, solicitor, sworn 5 February 2003, that the applicant first contacted her on 17 October 2002 for legal assistance both with respect to the Crimes Victims applications naming her as second respondent and with respect to her own applications. Ms Tomlinsons affidavit gives a detailed account of her dealing with this matter as solicitor for the applicant including obtaining initial instructions, obtaining legal aid funding and drafting five Crimes Victim’s Assistance applications. I consider that Ms Tomlinson has satisfactorily explained this period of time.
21. The next period to be explained is the period from February 2003 when the first Crimes Victims Assistance applications were filed to September 2003 when a further six applications were filed. Explanations for this delay in filing applications are found in the affidavit of Ms Tomlinson, solicitor, sworn 22 September 2003. This includes briefing counsel on the matter in May/June 2003, obtaining medical reports from Drs Sankarayya and Markou, preparing a detailed affidavit of the applicant, corresponding with the Northern Territory and obtaining funding from Legal Aid for the further applications.
22. At page 2 of his report dated 14 August 2003, Dr Markou also commented on the delay in the applicant divulging to her lawyer all details of various threats and assaults. He states:
“Ms Tomlinson has reported to me that there has been a continuous revelation of traumatic acts that Ms Gutsche suffered at the hands of Simon Young. These are instances that were not initially revealed to Ms Tomlinson but which have gradually have been revealed over the course of the last year while Ms Gutsche has been a client of Ms Tomlinsons firm. Several instances of sexual assault are only now being revealed. My view of this delay is that it relates primarily to Ms Gutsche’s fear about what it would mean to reveal everything that occurred to her. As previously mentioned, Ms Gutsche felt paralysed to do anything about Simon Young because of a constant state of fear and this extends to the revelation to the acts which she endured whilst in the relationship. In some cases she did not know whether what she had experienced was within the realms of “normality” for a relationship (such as sexual assault) and my view is that as she has become more comfortable with Ms Tomlinson that she has been able to reveal more about what her life was really like when living with Simon Young”.
23. The view expressed by Dr Markou accords with the affidavit evidence of the applicant (see paragraph 81 of her affidavit of 8 August 2003). She states at paragraph 81:
“I have had great difficulty in recounting these offences. So much happened to me over such a long period that when I sat down with Joanne Tomlinson of De Silva Hebron I did not know where to start. The interview which was conducted to provide details of all the offences and injuries I received were done in two long sessions. I found these sessions incredibly difficult and although I gave all the details that were in my head at the time, even now I remember more specific instances, or I am able to describe in better detail what happened to me on certain occasions”.
24. Ms Karlsson, counsel for the Northern Territory asks that I consider dismissing the final 6 applications filed in September 2003. Her main objection is a doubt regarding the credibility of Ms Gutsche as regards whether or not these incidents ever actually occurred. Ms Karlsson points to the fact that from the outset, Ms Gutsche’s solicitor Mr Piper was attempting to set off Ms Gutsche’s vulnerability to costs as a second respondent against these applications filed by her and thus there is a perceived motivation to file many applications.
25. I note Ms Karlsson’s scepticism but I must weigh that against Dr Markou’s expert opinion as to the reasons for the applicant’s delayed recollection and revelation of certain events. I have before me nothing concrete to suggest that I should doubt Dr Markou’s opinion. Further, any issues of credibility with respect to whether or not those offences occurred is something to be considered by the court at the substantive hearing.
26. In summary, I consider that the applicant has satisfactorily explained the bulk of the delays in filing the eleven Crimes Victim’s Assistance applications before me. I accept that genuine hardship will be caused to the applicant if the applications are dismissed as the causes of action will be left statute barred. This hardship to the applicant needs to be balanced against any prejudice suffered by the respondent if the extension of time is granted.
27. I look to Mr Loadman SM’s decision in Eldridge v NTA & Riley [2001]NTMC76 wherein he stated that there was an obligation on the second respondent to produce positive evidence of prejudice if any is said to exist. I note that more recently, Justice Thomas has considered the question of prejudice in her decision of Northern Territory of Australia v O’Connor & Rapaic [2003]NTSC56 – an appeal from the decision of a stipendiary magistrate granting an extension of time in a crimes compensation matter.
28. In NTA v O’Connor, the compensation claims were in respect of acts of sexual abuse suffered by the applicant at the hands of the second respondent from the age of five years to fifteen years. The applications were not filed until the applicant was twenty six years of age.
29. The most serious prejudices put forward by the Northern Territory in that case were that attempts to find the second respondent had been unsuccessful and the applicant’s mother had died before the applications were made. The presiding magistrate found no actual prejudice to the Northern Territory on the facts before him and granted the extension of time.
30. On appeal, Justice Thomas considered the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996)186CLR541 wherein Dawson J stated at 544
“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 McCue 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……”.
31. Thomas J in NTA v O’Connor accepted that the long delay in making the applications was “prima facie a prejudice faced by the appellant as is the fact that the second respondent cannot be located”. She distinguished the authority of Brisbane Regional Health Authority v Taylor (Supra), however on the basis that the Magistrate in the decision before her was not able to find actual prejudice and on a number of factual grounds. Thomas J stated at page 61:
“In the application that is the subject of appeal to this court, there are a number of factors which distinguish it from the factual basis for the decision in Brisbane South Regional Health Authority v Taylor.
1. The basis of the claim involves allegations of physical and sexual assault by a stepfather upon his stepdaughter at a time when the applicant was still a child and not in a position to pursue any claim for compensation.
2. This is an application for compensation under the Crimes Compensation Act which is beneficial legislation as distinct from an action under the common law.
3. The success of the application will depend upon the credibility of the applicant supported to an extent by the reports of the Community Welfare Department in South Australia and the Northern Territory. It is not a situation where a conversation between a plaintiff and her doctor who cannot be located is “crucial” to the outcome of the claim”.
32. In the case before me, the Northern Territory claims actual prejudice on the grounds that the alleged “offender” is dead. It is quite clear that had the deceased still been alive, the Northern Territory would have attempted to put to him the history of the incidents and allegations made by the applicant. His death prevents them from doing so. It is also clear that as most if not all of the incidents appear to have taken place in private, the applicant and the deceased were the only witnesses to the offences.
33. In Brisbane South Regional Health Authority v Taylor, McCue J referred to a statement of principle at 555 as follows:
“When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown it is hard to conclude that the legislature intended that the extension provisions 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 the limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action".
34. To my mind the loss of opportunity to speak to the deceased and perhaps call him as a witness does amount to an actual prejudice. Does this amount to “actual prejudice of a significant kind?” Obviously, the answer is yes if this loss of opportunity prevents the Northern Territory from obtaining a fair trial. I note the words of Toohey v Gummow JJ at p548-549:
“ A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is not possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application”.
35. In considering the issue, I note from the comments of Riley J when sentencing the applicant that there appear to be “a number of witnesses” who gave evidence at the hearing who “came into contact” with the applicant and the deceased. I note also in her affidavit evidence in support of this application, Ms Gutcshe gives details of incidents where the deceased acted in a possessive, aggressive or threatening manner towards her or others in the presence of potential witnesses (see paragraphs 2, 17, 28, 44 to 46, 66 and 77 of the applicant’s affidavit of 8 August 2003). While these incidents of violent, aggressive behaviour are not actually the one’s that are referred to in the assistance applications, they nevertheless would provide some corroborative evidence to support Ms Gutche’s evidence of ongoing domestic violence of a serious nature.
36. I also note the comments of Dr Sankarayya regarding his contact with the applicant and the deceased during their relationship (see paragraph 13 above) and his observations in his report as follows:
“On two occasions she was seen by me with injuries with no ready explanation; a thumb injury (after Mr Young had thrown her over a sofa) and a neck injury (after he had punched her)”.
These statements appear to corroborate to some extent at least 2 of the offences claimed.
37. I also note that there appear to have been a number of witness statements provided to or prepared by the DPP at the time of the prosecution of the applicant following the death of the deceased. While I do not know their contents, I assume from the tenor of Justice Riley’s sentencing remarks that some may well corroborate at least in part the applicant’s affidavit evidence of a history of violence.
38. In summary, whilst I fully accept that the demise of the applicant’s defacto husband causes a real prejudice to the respondent in preparing their case for trial, I am not satisfied that his death prevents the Northern Territory from obtaining a fair trial. If credibility of the applicant is an issue, as Ms Karlsson intimated in her submissions, then there appears to be other evidence available to corroborate or perhaps challenge the history of domestic violence disclosed in the applicant’s affidavit.
39. I note in the words of Mildren J in Commonwealth of Australia v DKB Investments Pty Ltd dated 12 September 1991 and the principles set out therein. In particular (at page 5 of the reason):
“4. The discretion should only be exercised adversely to the plaintiff where the plaintiff’s default has been intentional and contumelious or where there has been inordinate or in excusable delay on the part of the plaintiff or its solicitors giving rise to a substantial risk that a fair trial is not possible or to a substantial risk of serious prejudice to the defendant”.
40. In my view, I am not satisfied that there is a substantial risk in this case that a fair trial is not possible. I further consider that the prejudice causes to the applicant by my refusing to grant and extension of time outweighs the prejudice to the Northern Territory in preparing for trial.
41. I do not accept Ms Karlsson’s submission that as it was the applicant’s own act that caused the death of the deceased then she should be prevented from bringing these applications. The circumstances of the deceased’s death must be seen in the light of all the evidence before the court including the evidence of Dr Markou that the applicant was suffering from “battered wife syndrome”.
42. I further do not accept Ms Karlsson’s submission that the potential quantum of the payments the Northern Territory may face with respect to these eleven applications should be taken into account by me when considering the issue of prejudice. The question for the court is directed towards the need for a fair trial rather than the amount of money at stake should the applicant ultimately be successful in all or some of her claims.
43. I consider that the decision of Wallace J in Lia Chin v NTA & Spina delivered 22 January 2001 is able to be distinguished on its facts. Mr Wallace found that the applicant in that case made an intentional decision not to file a crimes compensation application for a period of some months before the second respondent’s death. I have found in this case that the applicant was both unaware of her rights and was unable to make an application because of her personal circumstances during the period leading up to the death of her defacto husband.
44. I also consider that the facts of the case before me are distinguishable from those placed before the High Court in Brisbane South Regional Health Authority v Taylor (Supra). Here we have before us evidence not of one conversation some 16 years ago but a pattern of abusive and violent behaviour over a number of years. We have some corroboration of this abuse from the likes of the applicant’s GP and other witnesses and we have a clear account of events deposed to in the applicant’s affidavit. The time delays in question are also not as great.
45. Finally, we have in this case an Act designed specifically to provide compensation to victims of crime – an Act that is beneficial in nature. In all the circumstances including my view that the Northern Territory, while suffering prejudice, ought not to be precluded from obtaining a fair trial, I intend to grant the extensions of time on each of the files before me. I order as follows:
1. That the time for filing the application for Crimes Victim’s Assistance in file number 20317828 is extended to 3 September 2003.
2. That the time for filing the application for Crimes Victim’s Assistance in files numbered 20317784, 20317821, 20317792, 20317788, 20317821 is extended to 4 September 2003.
3. That the time for filing the application for Crimes Victim’s Assistance in files numbered 20302100, 20302112, 20302107 and 20302102 is extended to 7 February 2003.
4. That the time for filing the application for Crimes Victim’s Assistance in file number 20302110 is extended to 7 January 2003.

Dated this 14th day of October 2003.