Abuse Law – Case Law Update – Actions constituting child sexual abuse & Limitation Period – Anderson v State of NSW; Perri v State of NSW [2023] NSWCA 160

In the matter of Anderson v State of NSW; Perri v State of NSW [2023] NSWCA 160, the plaintiffs, Mr Jake Anderson and Mr Blade Perri, sought damages from the defendant, the State of New South Wales. On 15 July 2021, the plaintiffs commenced proceedings for three causes of action, being: 

1. False imprisonment;
2. Assault; and
3. Battery.  

The plaintiffs allege that on 7 April 2011 when they were aged 13 and 14 years old, the plaintiffs were with a group of boys on the UNSW campus in Kensington, NSW. One of the boys, not either of the plaintiffs, stole a mobile phone from a woman and ran off with it. The group of boys were intercepted shortly after by the campus security and taken to Maroubra Police Station. Both plaintiffs were then taken into a cell and strip searched. They were told to turn around, face the wall and squat with their hands in the air, to which they complied with. The plaintiffs were then told to lift their genitals. The plaintiffs were then detained for three hours before being release without being charged.  

The primary judge found that the events took place as described by the plaintiffs and that the strip searches constituted as an assault. The primary judge, however, did not constitute the strip search as child sexual abuse within the meaning of section 6A of the Limitation Act 1969 (NSW) and, therefore, the primary judge found that the limitation period had expired for the causes of action; but if they had not, the damages for false imprisonment and assault would be assessed in the amount of $20,000.00 each (including aggravated damages). The primary judge found that exemplary damages were not appropriate in this case.  

The plaintiffs appealed the primary judges decision. The issues on appeal were: 

(i) Whether the primary judge erred in finding the applicant’s strip searches did not constitute “child abuse” for the purposes of section 6A of the Limitation Act 1969 (NSW); 

(ii) Whether the primary judge erred in failing to consider all circumstances in the applicant’s case in determining whether reasonable steps had been taken by the applicants and their “Capable Persons” to ascertain the fact mentioned in s50D(1)(c) of the Limitation Act 1969 (NSW); 

(iii) Whether the primary judge erred in finding the applicants and their respective Capable Persons ought to have known, prior to 15 July 2018 (the date 3 years before the proceedings were commenced), that the injuries were sufficiently serious to justify the bringing of an action on the cause of action; 

(iv) For Mr Anderson: whether the primary judge erred in finding that the advise provided to his Capable Person was not such that they reasonably ought to have known the strip search was illegal on receipt of advice from a legal centre which “muddied the waters”; and for Mr Perri: whether his Honour erred in finding that his Capable Person was in doubt about the distinction between “police matters” and “legal issues” in the context of taking action in relation to his strip search. 

Ultimately, on Appeal, the court dismissed the leave to appeal, with costs. The court provided the following in making their decision:  

1) As to issue (i), the applicant’s strip searches did not constitute “child abuse” and there was no demonstrable error of law or fact in the primary judge’s reasons as to why this was the case (at [32] to [33]).  

2) As to issues (ii) and (iii), the applicant’s respective Capable Persons knew or ought to have known facts (imputed to the applicants as minors) which demonstrated no error in the primary judge’s finding that the applicant’s claims were time barred (at [48] and [53]).  

3) As to issue (iv), the primary judge’s reasons disclose no error in finding that applicant’s Capable Persons were in a position to have known or ought reasonably to have known that further legal advice should have been sought prior to the limitation period expiring (at [58], and [61] to [62]).  

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today. 

Further Abuse Law information and case law updates written by our Emily Wright can be found on our website.