Eijkmann v Magann; McGloin v Magann; Trustees of the Roman Catholic Church of the Diocese of Parramatta v Magann [2005] NSWCA 358

In this matter Greg Walsh acted for Henk Eijkman in respect of an appeal from a decision of Sorby DCJ in granting leave for the respondent to commence proceedings out of time, inter alia, against Eijkman, McGloin and Trustees of the Roman Catholic Church of the Diocese of Parramatta.

The New South Wales Court of Criminal Appeal (Giles JA, Hodgson JA and Hunt AJA) upheld the appeal and set aside the orders made by Sorby DCJ. Giles JA observed at [81]:

“In some cases telling a person that he a psychiatric injury will make him aware of an additional extent of his injury, or put more accurately, diagnosis of a psychiatric injury will reveal an extent of injury of which the person was not previously aware. Thus, in Cranbrook School v Stanley [2002] NSWCA 290 Heydon JA distinguished at [68] between perceived emotional disturbance as symptoms of an illness or only “signs of some “personal weakness or illness falling short of an illness”, and referred to awareness of “signs and symptoms in his condition, but not that they reveal any personal injury”.

Giles JA at [82] found that the respondent as long ago as 1994 must have known that his emotional disturbance amounted to a psychiatric condition. Significantly, the respondent was disbelieved in respect of his assertions of not having been treated by a certain medical practitioner and at a hospital. Giles JA further found at [120] that the respondent knew in 1994 that he could sue the appellants in order to obtain compensation for the consequences of the sexual abuse he alleged he had suffered. His Honour went on to find that the respondent’s explanation of not seeing them was not a particularly strong one.

The Court unanimously found that it would not be just and reasonable to grant an extension of the limitation periods to the respondent.