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[2025] NSWSC 305
General information, not legal advice.
Supreme Court of NSW
2025-04-02
McNaughton J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Alice Smith (a pseudonym) v State of New South Wales [2025] NSWSC 305
Hearing dates: 28 March 2025
Date of orders: 02 April 2025
Decision date: 02 April 2025
Jurisdiction: Common Law
Before: McNaughton J
Decision: (1) Leave to file the Amended Defence to the Amended Statement of Claim annexed to the Amended Notice of Motion, filed on 29 January 2025, is refused.
(2) The Defendant is to pay the costs of the Plaintiff.
Catchwords: CIVIL PROCEDURE – amendment – leave sought to amend defence – Limitation Act 1969 (NSW) – application refused
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64
Crimes Act 1914 (Cth), s 20BQ
Limitation Act 1969 (NSW), ss 50C, 50D, 50F
Mental Health (Forensic Provisions) Act 1900 (NSW), s 32
Cases Cited: Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39
Dewheath Pty Ltd v Edmunds [2013] NSWSC 553
Loulach Developments Pty Ltd v Roads and Maritime Services [2018] NSWSC 1402
Shone v National Express Group Australia (Swanston Trams) Pty Ltd [2019] VSC 782
Taboas v Abigroup Contractors Pty Ltd [2013] NSWSC 1230
Texts Cited: New South Wales Premier’s Department, Model Litigant Policy for Civil Litigation (July 2016)
Category: Procedural rulings
Parties: Alice Smith (a pseudonym) (Plaintiff/Respondent)
State of New South Wales (Defendant/Applicant)
Representation: Counsel:
C Goodhand (Plaintiff/Respondent)
M Gvozdenovic (Defendant/Applicant)
Solicitors:
O’Brien Criminal and Civil Solicitors (Plaintiff/Respondent)
Makinson d’Apice Lawyers (Defendant/Applicant)
File Number(s): 2023/00058833
Publication restriction: Nil
“In answer to the plaintiff’s causes of action for damages insofar as they constitute tortious claims of damages for personal injury, says that the plaintiff’s claims are brought outside of the 3-year limitation period running from the date on which the cause of action first accrued to the plaintiff, as provided for by section 50C of the Limitation Act 1969.” (Underlining omitted.)
The plaintiff opposes leave being granted.
For the reasons which follow, I have decided to refuse leave to file the Amended Defence.
As a preliminary point, I note that the Amended Notice of Motion also sought other orders which were unrelated to the limitation defence point and were ultimately agreed.
In support of the application to file the Amended Defence to add a limitation defence, an affidavit from a solicitor representing the defendant, affirmed 28 January 2025, was read without objection, and exhibits were tendered.
An affidavit from a solicitor representing the plaintiff, sworn 25 February 2025, was also read without objection, and exhibits were tendered. Written and oral submissions were relied upon.
At about 8:15am on 22 February 2017, police officers attended the plaintiff’s residence where she was arrested for telecommunications offences, domestic violence offences and an offence of contravene an apprehended domestic violence order. The plaintiff was taken by police to a police station where she was detained in custody.
At the same time, other police officers executed a search warrant at her residence.
The plaintiff was charged with 10 offences, then released on conditional bail.
On 1 December 2017, this Court declared that the search warrant was invalid and that the seizure of the items from the plaintiff’s residence was not authorised by the search warrant and ordered that the items be returned. A new search warrant was subsequently sought and executed.
On 28 October 2019, six of the charges were withdrawn.
On 18 March 2020, the plaintiff was convicted of four charges in the Local Court of New South Wales.
On 23 October 2020, the District Court of New South Wales allowed the plaintiff’s conviction appeal. The plaintiff’s conviction was set aside, and the charges were dismissed pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1900 (NSW), and s 20BQ of the Crimes Act 1914 (Cth). The plaintiff was discharged into the care of Dr Jeremy O’Dea, psychiatrist.
On 21 February 2023, the plaintiff commenced proceedings in the District Court. An Amended Statement of Claim was filed on 21 March 2023. The plaintiff claimed that she was falsely imprisoned, assaulted and battered, her land and goods were trespassed upon, her goods were detained and that she was thereby entitled to damages, including aggravated and exemplary damages, interest and costs.
The plaintiff’s personal injury claim was indicated for the first time in a reply to request for particulars on 14 July 2023 and also foreshadowed via the Online Court in proposing orders for the listing on 30 August 2023. The plaintiff attended a medico legal examination with an expert on 15 September 2023.
The Defence to Amended Statement of Claim was filed on 9 August 2023.
The plaintiff was ordered to file and serve a Statement of Particulars and her expert evidence by 29 September 2023. On 29 September 2023, the plaintiff served a Statement of Particulars claiming damages for personal injuries including Post Traumatic Stress Disorder and “Exacerbation/Aggravation of pre-existing bi-polar disorder type II”. She also served an expert report.
A mediation was booked for 23 February 2024, and an order for parties to attend the mediation was made on 16 November 2023.
On 30 November 2023, the plaintiff’s solicitor sent a letter to the defendant’s solicitor advising that if the matter did not resolve at the scheduled mediation on 23 February 2024, he was instructed to seek a transfer of the proceedings to the Supreme Court of New South Wales. On 23 January 2024 he indicated that the basis for the application to transfer was that the amount “to be awarded to the plaintiff if successful” was likely to exceed the jurisdictional limit of the District Court.
Further supplementary reports from the plaintiff’s expert, dated 18 January 2024 and 23 January 2024, were obtained and served on the defendant on 23 January 2024 and 28 March 2024 respectively.
On 25 January 2024, the plaintiff attended an examination with another expert.
On 14 February 2024, the defendant’s solicitor wrote to the plaintiff’s solicitor indicating detailed reasons why the defendant was not ready for mediation. He referred to the plaintiff’s “presumably large personal injury damages claim as a consequence of the alleged psychiatric injury” and stated:
“If, however, your client accepts that she has no entitlement to claim damages for psychiatric injury and does not press her claim for personal injury damages as particularised in the Statement of Particulars, then there may be merit to attending a mediation. […] I am confident the claim could be resolved on that basis i.e. without a personal injury damages claim. […] If she maintains her claim for personal injury damages, then I really have no option but to advise my client to withdraw from the currently appointed mediation date. There is too much outstanding evidence to consider to obtain appropriate approvals.”
The mediation was subsequently cancelled.
On 9 April 2024, the plaintiff filed a summons in the Supreme Court seeking to transfer the proceedings to this Court on the basis of the jurisdictional limit of the District Court, and on 27 May 2024, the plaintiff’s solicitor swore an affidavit in support of the application. To this was annexed a schedule of estimated damages sought by the plaintiff in respect of her personal injury claim including past and future treatment expenses, domestic assistance, past and future economic loss and loss of superannuation.
On 17 June 2024, the defendant’s solicitor indicated they would consent to the transfer of the proceedings to the Supreme Court. No limitation period issue was raised.
On 21 June 2024, orders were made, by consent, to transfer the proceedings to the Supreme Court. As a consequence, the 10 day hearing set down in the District Court to commence on 2 September 2024 was vacated.
On 17 September 2024, a Supreme Court Registrar ordered that the parties agree on a date for mediation. A mediation was arranged for 19 December 2024.
On 6 December 2024, the defendant’s solicitor wrote to the plaintiff indicating that they had instructions to cancel the mediation stating:
“The Defendant still does not have access to any of the material it sought via subpoena between 13 September 2023 and 31 January 2024 due to the plaintiff’s 13 August 2024 Motion to have these subpoenas set aside. This Motion did not proceed, on the plaintiff’s application, on 25 November 2024, and is yet to be heard. The material is essential to permit the defendant to investigate the plaintiff’s significant personal injury damages claim which she makes as a result of an alleged psychiatric injury. In the material’s absence, the defendant has been entirely precluded from investigating the plaintiff’s claim and therefore has been unable to prepare for the mediation and be properly advised about the nature and extent of the plaintiff’s psychiatric health before, during and after the incident the subject of the proceedings.”
I infer the mediation was cancelled.
On 29 January 2025, the defendant filed the Amended Notice of Motion seeking, amongst other things, leave to file an Amended Defence to the Amended Statement of Claim to include a limitation defence.
The uncontested evidence of the solicitor for the defendant indicated that she only first turned her mind to the issue of the limitation period on 16 January 2025, during a client conference, when the issue of the limitation period for a personal injury claim was raised with her. There was nothing on her firm’s file to indicate that anyone else had raised the issue earlier. That same day, the defendant wrote to the plaintiff annexing a proposed amended defence and seeking the plaintiff’s consent for the defendant to amend the defence, failing which it was indicated that leave would be sought to file the amended defence.
On 12 February 2025, the parties booked a mediation to be held on 14 April 2025, and on 21 February 2025, an order was made by the Court that parties attend this mediation. As I understand the position, this mediation is still booked in.
The plaintiff’s solicitor states that the plaintiff has incurred substantial legal costs since the defendant filed their defence on 9 August 2023 which will be thrown away if leave is granted at this later stage. Further, the plaintiff has complied with court orders in relation to expert medical evidence and obtained the expert medical evidence she intended to rely upon more than a year ago.
The plaintiff’s solicitor states that because he had no notice or knowledge of a limitation period defence at the time of instructing the plaintiff’s expert, he did not seek:
(a) psychiatric evidence or opinion on matters which he considered to be relevant to the proposed limitation defence amendment, including evidence relevant to the question of if or when the plaintiff’s injury was “discoverable” as defined in s 50D of the Limitation Act*;* (b) psychiatric evidence or opinion in relation to the issue of whether the plaintiff was a person “under a disability” pursuant to s 50F of the Limitation Act, such that, if the limitation period had commenced to run, the limitation period was suspended for the duration of the disability.
64 Amendment of documents generally (cf SCR Part 20, rules 1 and 4; DCR Part 17, rules 1 and 4)
(1) At any stage of proceedings, the court may order—
(a) that any document in the proceedings be amended, or
(b) that leave be granted to a party to amend any document in the proceedings.
(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. […]
58 Court to follow dictates of justice
(1) In deciding—
(a) whether to make any order or direction for the management of proceedings, including—
(i) any order for the amendment of a document, and
(ii) any order granting an adjournment or stay of proceedings, and
(iii) any other order of a procedural nature, and
(iv) any direction under Division 2, and
(b) the terms in which any such order or direction is to be made,
the court must seek to act in accordance with the dictates of justice.
(2) For the purpose of determining what are the dictates of justice in a particular case, the court—
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant—
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
(3A) (Repealed)
(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)—
(a) any solicitor or barrister representing the party in the proceedings,
(b) any person with a relevant interest in the proceedings commenced by the party.
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.
(6) For the purposes of this section, a person has a relevant interest in civil proceedings if the person—
(a) provides financial assistance or other assistance to any party to the proceedings, and
(b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.
57 Objects of case management
(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects—
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
During the hearing, the defendant referred the Court to the case of Loulach Developments Pty Ltd v Roads and Maritime Services [2018] NSWSC 1402. That case also involved a contested application to amend a defence to add a limitation defence. I note that it involved the same firm of solicitors. Justice Leeming granted leave to the defendant to file an amended defence. His Honour noted that the opposition to the amendment was threefold:
The amendment was being made some three years after the statement of claim was filed, and only seven or so weeks before the trial, and the explanation offered by the defendant was lacking in detail and cogency.
Despite the provision of particulars, the plaintiff said some aspects of the explanation as to why it was said the damage was incurred more than six years before the commencement of proceedings was insufficiently clear for it to understand the case it has to meet should the amendment be permitted.
Described as the “principal point”: it was said that permitting the amendments would cause the plaintiff to suffer prejudice, in so far as decisions have been made throughout the litigation to date on the basis that no limitation point is made by the defendant.
As to the first point, Leeming JA accepted that the defendant failed to plead the limitation defence inadvertently. In relation to the second point, Leeming JA noted that the plaintiff accepted it would be open for them to request further particulars to clarify any uncertainty. As to the third and most important point, Leeming JA stated:
“There is no evidence whatsoever before me of any forensic decisions having been made based upon the absence of a limitation defence. To the contrary, I would infer […] that this litigation was commenced in circumstances where the plaintiff was highly conscious of the possibility that it might be statute-barred if it delayed until a period more than six years following the grant of development consent.
[…] not only is there no evidence of any forensic decisions being made which might have been affected by the presence or absence of a Limitation Act defence, but […] there is nothing […] which could have been affected by the presence or absence of a Limitation Act defence.” (Emphasis in original.)
The defendant acknowledges that a limitation defence is a defence which can be waived, and which must be pleaded: Dewheath Pty Ltd v Edmunds [2013] NSWSC 553 at [92].
The defendant contends that the solicitors for the plaintiff do not advance any evidence of any prejudice due to the proposed amendment. It is not suggested, for instance, that there is factual material or evidence which is now unavailable to the plaintiff. Nor would the hearing take longer than it otherwise might.
It is further contended that as the matter has not yet been set down for final hearing, there can be no suggestion of any delay. Secondly, the question of limitation periods is properly a matter for final hearing. It will promote the interests of justice, according to the defendant, to ensure that all issues of substance between the parties are heard and determined.
The plaintiff opposes the application for amendment on the following bases:
The defendant allowed the plaintiff to proceed with a claim for personal injury damages and, by consent, to have the matter transferred from the District Court to this Court without prior notice of the defendant’s intention to rely upon the defence.
The defendant has been on notice, since 14 July 2023, that the plaintiff was claiming “personal injury damages” and “exacerbation of a mental health condition”.
There is no adequate explanation for the delay in raising the defence.
The defendant should not be allowed to raise the limitation issue in circumstances where it took no issue with the position indicated in July 2023 (and acquiesced in the course proposed) for over 18 months.
The plaintiff submitted that the principles in Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 were relevant. I am of the view that whilst some light may be shed on this issue by that case, the relevance is limited, and the principles and considerations set out in the CPA, as set out above, more properly inform my decision.
The plaintiff contends that there is prejudice and unfairness arising from the limitation issue being raised at this late stage. The plaintiff submits that had the plaintiff been on notice of the defendant’s present intention at an earlier stage, in particular, in a timely manner after the reply to the defendant’s request for particulars, then that is likely to have been a factor informing the plaintiff’s decision as to whether to seek that the proceedings be transferred to this Court (with the associated costs risks) and whether this Court would have, in fact, approved the transfer. The plaintiff contends that this had led to a huge potential costs liability, with the defendant complicit in allowing the plaintiff to proceed on (what is now asserted to be) an incorrect basis.
The plaintiff distinguishes the case of Taboas v Abigroup Contractors Pty Ltd [2013] NSWSC 1230 because, in that case, it was found that it was always clear that the limitation defence was to be relied upon and that was plainly known to the solicitors for the plaintiff. Justice Garling stated at [34]:
“From the very earliest interaction between the lawyers for the plaintiff and the lawyers for VSL, which occurred when the plaintiff sought to join VSL as a second defendant, it was apparent that VSL would be relying upon a limitation defence.”
Although the plaintiff suggested that the inadvertence explanation for the failure to plead a limitation defence earlier was inadequate, I accept the defendant’s solicitor’s evidence. I accept that the omission was inadvertent and was certainly not the result of any tactical choice.
I also accept that the question of whether or not to permit an amendment in these sorts of circumstances does not involve any question of punishment of the party who omitted the pleading.
However, it is in my view of some relevance to note that the defendant is bound by the New South Wales Premier’s Department, Model Litigant Policy for Civil Litigation (July 2016) (“Model Litigant Policy”) which includes the following:
“3.1 The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards. The expectation that the State and its agencies will act as a model litigant has been recognised by the Courts.
3.2 The obligation requires that the State and its agencies, act honestly and fairly in handling claims and litigation by:
a) dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation;
[…]
c) acting consistently in the handling of claims and litigation;
d) endeavouring to avoid litigation, wherever possible. In particular regard should be had to the NSW Civil Procedure Act 2005 which provides that that the overriding purpose of the Act is to facilitate the just, quick and cheap resolution of the real issues in civil proceedings;
[…]
3.3 The State or an agency is not prevented from acting firmly and properly to protect its interests. The obligation does not prevent all legitimate steps from being taken in pursuing litigation, or from testing or defending claims made.”
(Emphasis added.)
Clearly these obligations do not mean that the State or an agency must be perfect and never make mistakes, nor that an application, such as the one before me, should never be made. However, where, as here, there are a number of competing considerations informing the exercise of my discretion, the Model Litigant obligations are an additional factor to consider in the mix: see too Shone v National Express Group Australia (Swanston Trams) Pty Ltd [2019] VSC 782 at [110].
Taking into account the uncontested evidence set out above, and in light of the principles and factors set out in ss 56–58 of the CPA*,* a number of observations can be made:
Prior to January this year, the plaintiff had no notice that a limitation point would be raised. The situation is quite different, for example, from the situation in Taboas where the limitation issue had been discussed in correspondence but left out of the Court pleadings. Further, in light of the Model Litigant Policy, it may perhaps more readily be inferred that a point not being taken (or even flagged) was a considered and deliberate decision: see too Dewheath at [94].
The failure to identify the limitation defence at an earlier time means that further evidence will need to be obtained from the plaintiff’s expert.
The plaintiff’s decision to apply for the matter to be transferred from the District Court to this Court may not have been taken if the defence had been pleaded or flagged at an earlier time. That the matter is now in this Court exposes the plaintiff to potential significant additional costs.
The matter had earlier been set down for hearing in the District Court and may have proceeded to finality last year if the decision to apply for the transfer of the matter to this Court (made without awareness of the limitation issue) had not been made.
If the limitation defence had been pleaded or flagged, mediation may have been successfully undertaken, rather than cancelled twice.
The failure to plead the limitation defence until this year has adversely impacted on the just, quick and cheap resolution of the real issues in the proceedings. This is especially so in light of the removal of the matter to this Court without the limitation defence having been pleaded or flagged.
The efficient disposal of the business of the court and the efficient use of available judicial and administrative resources have been adversely impacted by the failure to plead the limitation defence in a timely way, especially in light of the removal of the matter to this Court without that defence having been pleaded or flagged.
Whilst some of the matters I have identified could be ameliorated by ordering that costs thrown away be paid by the defendant, such an order would not address appropriately all of the various considerations mentioned above.
Accordingly, in all of the circumstances, I am of the view that leave to file the Amended Defence should be refused.
I make the following orders:
Leave to file the Amended Defence to the Amended Statement of Claim annexed to the Amended Notice of Motion, filed on 29 January 2025, is refused.
The Defendant is to pay the costs of the Plaintiff.
**********
Alice Smith (a pseudonym)
State of New South Wales [2025] NSWSC 305
(1990) 170 CLR 394