Davies v State of New South Wales

Judgment

1. HER HONOUR: There are two notices of motion before the Court.
2. By notice of motion filed 29 June 2018, the plaintiff seeks firstly, an order pursuant to ss 58, 60G and/or 60C and/or 50C of the Limitation Act 1969 (NSW) that leave to commence proceedings against the defendant and the time to commence proceedings be extended to eight weeks after the making of this order; secondly, that the notice of motion and substantive matter be heard together; and thirdly, a declaration that the plaintiff was disabled within the meaning of s 52 of the Limitation Act between November 1999 and December 2012. The defendant opposes the order that the plaintiff's notice of motion and substantive matter be heard together.
3. By notice of motion filed 11 July 2019, the defendant seeks an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the plaintiff's notice of motion filed 29 June 2018 be heard separately and before the hearing of the substantive matter.
4. The plaintiff is Paul Davies. The defendant is the State of New South Wales. The parties relied upon portions of their joint court book (3 volumes). Central to this hearing were the reports of Professor Alexander McFarlane, psychiatrist, dated 30 September 2017 and 15 August 2019; Dr Alan England, psychiatrist, dated 15 November 2018; and Dr Lisa Brown, psychiatrist, dated 16 January 2019.

Background

1. On 6 November 1981, when he was 29 years of age, the plaintiff was attested as a Constable of Police and commenced performing duties as a police officer at the rank of Probationary Constable.
2. In April 1985, the plaintiff performed duties in relation to the deaths of three children from Sudden Infant Death Syndrome.
3. On 2 February 1986, the plaintiff performed duties in relation to the rape and murder of Anita Cobby. Those duties involved identifying the deceased's body, attending the post-mortem examination, arresting a number of the offenders and giving evidence at their subsequent committal proceedings and trials.
4. On 24 May 1987, the plaintiff performed duties in relation to the shooting murder of 5-year-old Tess Debrincat at Quakers Hill.
5. In 1993 or 1994, the plaintiff was threatened by fellow a police officer, Debra Cheney.
6. In about 1996, an offender named Quentin Timms fired arrows at the plaintiff and other police officers as they apprehended him for attempting to murder his mother.
7. In about 1999, the plaintiff performed duties as an undercover operative in Bathurst gaol. His duties required him to represent himself as a hit man to a fellow inmate, who instructed the plaintiff to murder another man. The plaintiff's evidence led to the offender being convicted of soliciting the murder. The plaintiff feared for his life on the basis that his true identity as a police officer would be discovered.
8. On 29 June 2018, some 15 years after the plaintiff was medically discharged, the plaintiff filed a statement of claim in respect of his injuries.

The pleadings

1. On 26 July 2019, the plaintiff filed an amended statement of claim ("ASC"). In it, the plaintiff claims damages against the State of New South Wales in right of his former employer, the NSW Police Force, for negligently inflicted psychiatric injury and consequential loss and damage.

The pleading in the amended statement of claim

1. The plaintiff pleads that he worked as a police officer from 1981 to 2001. During this period, he was exposed to a number of traumatic incidents, including those described earlier. On 31 January 2001, the plaintiff ceased active duties and went on sick leave. On 6 June 2003, he was medically discharged from the NSW Police Force suffering from Post-Traumatic Stress Disorder ("PTSD").
2. At paras [20], [20A], [21], [21A] and [22] of the ASC, the plaintiff sets out that he and defendant were in a relationship akin to an employment relationship. Paragraph [21A] pleads the breach of duty of care owed by the defendant to the plaintiff. Paragraph [22] pleads the duty of care. I have not reproduced these paragraphs here as they are lengthy, but I have summarised them.
3. The plaintiff claims that the defendant was or ought to have been aware of the risk of psychiatric injury to the plaintiff from his exposure to traumatic incidents in the course of his duties. The plaintiff claims that the defendant had a duty of care to prevent or ameliorate this risk of injury. The nature and content of the defendant's duty is particularised in the ASC at [21A].
4. The plaintiff claims that the defendant breached its duty of care in a number of ways. It allowed the plaintiff to be exposed to the trauma of the Anita Cobby murder, without taking any steps to assess whether he was experiencing symptoms of psychiatric distress. In 1996, the plaintiff informed his supervisor that he was still affected by the trauma of the murder.
5. It is the plaintiff's case that had he been assessed by a trained clinical psychologist, both after the Anita Cobby murder and after he was exposed to repeated further traumas, his symptoms would have been detected. The plaintiff exhibited observable symptoms of agitation, irritability and anxiety when dealing with offenders. Because the defendant failed to take any steps to have his mental well-being assessed, he was not removed from duties or provided with assistance. He claims that if he had been offered these services, the severity and chronicity of his injury would have been significantly ameliorated.
6. Other breaches claimed by the plaintiff included the defendant's failure to take adequate steps to protect him when he was threatened by Deborah Cheney, and its failure to comprehensively intervene in the aftermath of the undercover operation in 1999. The plaintiff claims he should not have been permitted to perform frontline duties after this time.
7. In summary, the plaintiff pleads that from about 6 November 1981 until 6 June 2003, the defendant owed the plaintiff a duty to take reasonable care to prevent or ameliorate the risk of harm. The defendant breached that duty of care, causing the plaintiff to suffer psychiatric injuries, namely PTSD and Major Depressive Disorder.

The defence

1. By defence filed 10 December 2018, the defendant relies on the Limitation Act to defeat the plaintiff's claim.
2. No reply has been filed.

Separate determination generally

1. The defendant seeks that the plaintiff's notice of motion be heard separately and before the hearing of the substantive matter.
2. UCPR 28.2 provides that the court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or any further trial in the proceedings.
3. There are many authorities relating to separate determination, including Idoport Pty Ltd & Anor v National Australia Bank & Ors [2000] NSWSC 1215 ("Idoport"); Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19; Perre v Apand Pty Limited (1999) 198 CLR 180; [1999] HCA 36 at [436]; State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [187]; Southwell v Bennett [2010] NSWSC 1372 at [15] ("Southwell"); and Crawley v Vero Insurance Ltd [2012] NSWSC 593.
4. The general rule is that proceedings are listed for trial for the hearing of all questions and issues arising in the proceedings: see s 56(1) and (2) of the Civil Procedure Act. The court's power to make orders for the decision of any question separately from any other question under UCPR 28.2 is an exception to this rule.
5. The legal principles that apply in exercising the discretion to make the order for a separate determination are set out in the decision of Hallen J in Southwell at [15]. These principles may be summarised as follows: 1. As a general rule, the discretionary power to order the separate determination of a question should be approached with caution. 2. In exercising its discretion, the overriding purpose of the Civil Procedure Act under s 56, namely the just, quick and cheap resolution of the real issues in the proceedings, must be given effect. 3. Generally, all questions of fact and law should be determined at once, and if the court is to depart from that position, the party seeking the separate determination of a question must satisfy the court that it would be "just and convenient" for that order to be made. 4. While it may appear superficially attractive to order the trial of a separate question, experience often shows that it will not be so because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit if the same witnesses have to give evidence in relation to a questions which have been separated. 5. The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. It sometimes happens that a separate determination results in the very delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid. 6. Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings. 7. Where findings as to the credit of a witness(es) is, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial. 8. Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding. There is always a risk of inconsistent findings arising from determination of separate questions. 9. While the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties.
6. The question of the application of the limitation period to proceedings is a question of substance, not procedure: see John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; (2000) 172 ALR 625 at [161]. The onus to extend the limitation period rests firmly upon that applicant: see Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541.
7. There are two main areas of dispute between the parties. The first is when the cause of action accrued, and the second is whether the plaintiff was under a disability pursuant to s 52(1) of the Limitation Act. Counsel for the plaintiff submitted that these factors make the proceeding unsuitable for a separate determination. Counsel for the defendant disagrees. It is my view that if there is to be a separate trial in relation to the extension of time, then the issue of disability should also form part of that separate trial. The reason for this is that if the period of time where the plaintiff claims he was under a disability is found to be shorter, this will directly affect the evidence required for the extension of time application.

Accrual of the cause of action

1. Psychiatrist Professor McFarlane is of the opinion that the plaintiff's cause of action accrued in 2001, whereas psychiatrist Dr Brown considers it to have accrued in 1999.
2. A cause of action for personal injuries is "measurable" in the sense of going beyond what can be regarded as negligible: see Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514; (1992) 109 ALR 247 ("Wardley") at 258; Cartledge v E Jopling & Sons Ltd [1963] 1 All ER 341; [1963] AC 758; Scarcella v Lettice (2000) 51 NSWLR 302; [2000] NSWCA 289. Time begins to run when such damage accrues, even if the plaintiff is not aware of it.
3. In claims for damages involving psychiatric injuries, the question as to when a cause of action accrues is likely to depend upon medical evidence, because of the difficulty of a lay plaintiff inferring psychological illness from particular feelings: see Cranbrook School v Stanley [2002] NSWCA 290 at [68] per Heydon JA (Meagher and Hodgson JJA agreeing); Commonwealth v Smith [2005] NSWCA 478 at [16] per Handley and at [118] per Santow JA.
4. A new cause of action may accrue from time to time where the plaintiff, whose condition is gradually deteriorating, suffers further not insignificant damage to his or her health or well-being: see Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120; Dowell Australia Pty Ltd v Page (unreported, NSWCA, 1 December 1995).
5. The question as to when a cause of action accrues should not be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases: see Wardley at 259 per Mason CJ, Dawson, Gaudron and McHugh JJ.
6. Wardley was an appeal from interlocutory proceedings in relation to a claim for damages under s 82 of the Trade Practices Act 1974 (Cth) for an alleged contravention of s 52 of that Act, which prohibited misleading or deceptive conduct. The question in the appeal was when the cause of action accrued. The alleged contravention occurred when the appellant made incorrect representations to the respondent, which it relied upon for the purpose of granting an indemnity in relation to a National Australia Bank credit facility in favour of Rothwells Ltd. The bank called on the indemnity against the State of Western Australia.
7. In Wardley, the High Court held that a cause of action for damages under s 82 does not accrue until actual loss or damage is sustained: at 253 per Mason CJ, Dawson, Gaudron and McHugh JJ. Actual loss was not sustained when the indemnity was given because the liability was then contingent. Rather, actual loss was sustained when the indemnity was called upon: at 279 per Mason CJ, Dawson, Gaudron and McHugh JJ. It was unjust and unreasonable to expect the respondent to commence proceedings at the earlier time: 259 per Mason CJ, Dawson, Gaudron and McHugh JJ. In dismissing the appeal, the plurality stated at 259: "It follows from what we have said that we agree with the approach adopted by the Full Court of the Federal Court in the present case and in Magman International Pty Ltd v Westpac Banking Corporation [(1991) 32 FCR 1]. We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question."

Professor McFarlane's opinion

1. Psychiatrist Professor Alexander McFarlane interviewed Mr Davies on 18 August 2016 (CB 216). In Professor McFarlane's opinion, the plaintiff developed acute PTSD during his involvement in the Anita Cobby investigation. This condition subsequently resolved spontaneously. The plaintiff was nevertheless left with residual symptoms that fluctuated with time. These residual symptoms were not of sufficient in severity to warrant a diagnosis of PTSD.
2. In Professor McFarlane's opinion, the incident involving Debra Cheney in 1993 or 1994 caused "a significant recurrence of the anxiety component of [the plaintiff's PTSD]….In particular, he had a major recurrence of symptoms of hypervigilance and insomnia during this time".
3. Professor McFarlane further stated that the undercover operation in Bathurst goal in 1999 "appears to have triggered the re-emergence of his full blown symptoms of [PTSD]". On this occasion, the plaintiff's symptoms did not abate. Rather, in Professor McFarlane's opinion, "[h]is symptoms became entrenched after the undercover operation in 1999 in the Bathurst gaol".
4. Professor McFarlane's opined that the plaintiff should have been removed from frontline duties after the undercover operation in 1999. Instead, on 31 January 2001, the plaintiff was required to perform duties in relation to the management of Timms in custody on a separate attempted murder charge. The plaintiff was unable to cope. He left work and did not return.
5. If Professor McFarlane's opinion is accepted, a cause of action accrued in 1999 when the plaintiff's PTSD became entrenched following his participation in the undercover operation at Bathurst gaol. Professor McFarlane's opinion is that it was unlikely that a cause of action accrued when the plaintiff developed an acute stress disorder during the investigation of the Anita Cobby murder. This injury resolved, and the residual symptoms were insufficient to warrant a diagnosis of a recognisable psychiatric injury. It was not until 1999 when the plaintiff's collection of symptoms again warranted such a diagnosis.

Dr Lisa Brown

1. Psychiatrist Dr Lisa Brown also examined the plaintiff and prepared a report dated 16 January 2019. She gave the opinion that the plaintiff developed a Major Depressive Disorder in late 2001. Dr Brown agreed that the plaintiff has PTSD prior to that date, but that this injury did not emerge into a diagnosable form until January 2001. Dr Brown disagreed with Professor McFarlane's opinion that the plaintiff developed an acute stress disorder in the wake of the Anita Cobby murder. Dr Brown also disagreed with the proposition that the plaintiff experienced symptoms of PTSD following his involvement in the Tess Debrincat murder in 1988, the threats from Deborah Cheney in 1994 or the undercover job at Bathurst gaol in 1999.

The plaintiff's submissions

1. A threshold question in the separate determination is when the plaintiff suffered actual damage that was measurable or detectable such as to warrant intervention by the defendant in accordance with its duty of care. The answer will depend upon the plaintiff's evidence of the development of his symptoms, together with the expert medical evidence.
2. The plaintiff submitted that it is not possible to resolve the question of when the cause of action accrued without the benefit of the evidence of both Professor McFarlane and Dr Brown. It is unlikely that the Court can resolve their differing positions without the benefit of their oral evidence. This will require a conclave and joint report. The same evidence would then need to be given in the substantive hearing on the question of injury.
3. In order to determine when the cause of action accrued, it will also be necessary for the Court to hear the plaintiff's evidence concerning the timeline of his symptomology. The relevant time period will span from 1986 to 2001. It can be expected that the defendant will wish to test the plaintiff's evidence under cross examination. Again, this evidence will need to be given in the substantive proceedings to prove injury and breach.

Consideration

1. Professor McFarlane's opinion is that the plaintiff did not develop a diagnosable psychiatric injury, PTSD, until 1999. Dr Brown agrees that the plaintiff developed PTSD, but found that his injury did not emerge into a diagnosable form prior to January 2001. Thus on Professor McFarlane's view the cause of action accrued in 1999, whereas on Dr Brown's it accrued in 2001.
2. On either view, the plaintiff's application for an extension of time is governed by the same legislative regime, namely ss 60C and 60G of the Limitation Act. In these circumstances, the psychiatrists' reports can be tendered. Hence, I do not view this issue as an impediment to ordering a separate trial. Dr Brown's view is more favourable to the plaintiff. It is not necessary for the doctors to be cross examined. Aside from maybe the plaintiff, there will not be an overlap of witnesses who will be required to give evidence twice.
3. I will discuss the plaintiff and whether he will be required to give evidence under the next heading, "Disability".

Disability

1. It is my view that if the limitation issue is heard separately, the issue of disability should be heard with it. This is because any findings as to his disability may affect the length of the delay.
2. Psychiatrist Dr Alan England addressed the issue of the plaintiff's disability in his report dated 15 November 2018. In it, Dr England stated: "To summarise, I was Mr Davies' treating psychiatrist for over 8 years, from March 2001 to 1 October 2009. He provided history and demonstrated signs and symptoms consistent with PTSD and Major Depression. A core feature of his PTSD was the avoidance of those things which can or might bring the trauma back to mind. Because Mr Davies' major trauma was based in the arrest and prosecution of those involved in a high profile murder, it is highly likely that lawyers, courtrooms, chambers, legal terminology and many of those things which are involved in making a legal claim could be triggers to varying degrees that would precipitate or intensify Mr Davies' symptoms. Further, if he was successful in overcoming the deleterious effects of these triggers to such an extent that he could initiate a claim, the cognitive and behavioural symptoms resulting from PTSD and Major Depression would seriously impair his capacity to manage his legal affairs due to his physiological and psychological impairment."
3. Section 11(3)(b)(i) of the Limitation Act reads: "(3) For the purposes of this Act a person is under a disability: … (b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (i) any disease or any impairment of his or her physical or mental condition, …"
4. Section 52 of the Limitation Act reads: "52 Disability (1) Subject to subsections (2) and (3) and subject to section 53, where: (a) a person has a cause of action, (b) the limitation period fixed by this Act for the cause of action has commenced to run, and (c) the person is under a disability, in that case: (d) the running of the limitation period is suspended for the duration of the disability, and (e) if, but for this paragraph, the limitation period would expire before the lapse of three years after: (i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or (ii) … (whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates. (2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period. ..."
5. The starting point to making a determination under s 11(3)(b) of the Limitation Act is set out in Kotulski v Attard [1981] 1 NSWLR 115 ("Kotulski"), where Slattery J stated at 117 to 118: "Section 11(3)(b) is concerned with two classes of person: 'One who is incapable' (which conveys the concept of total inability) and the other 'substantially impeded in the management of his affairs in relation to the cause of action … by reason of disease or impairment or physical or mental condition.' According to the Shorter Oxford Dictionary to 'impede' means to obstruct in progress or action; to hinder or to stand in the way of. 'Substantially', in my view, does not mean trivial or minimal, neither does it mean total: see R v Lloyd [1967] 1 QB 175. 'Mental condition' which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings. It seems to me that the expression 'mental condition' is meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment. When dealing with the words 'unsound mind', which were not defined in the relevant statute, Lord Denning MR in Kirby v Leather [1965] 2 QB 367, at p 383 said: So here it seems to me in this statute a person is 'of unsound mind' when he is, by reason of mental illness, incapable of managing his affairs in relation to the accident as a reasonable man would do. I am of opinion that it is a relevant matter, in the consideration of the question raised by the notice of motion, to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action…"
6. The Court of Appeal has approved the principle stated by Slattery J in Kotulski in a number of cases: see State of New South Wales v Bennie [2005] NSWCA 172; New South Wales v Harlum [2007] NSWCA 120; Saunders v Jackson [2009] NSWCA 192; Olive v Johnstone [2006] NSWCA 21 at [61] and Guthrie v Spence [2009] NSWCA; (2009) 78 NSWLR 225 ("Guthrie") at [144].
7. In Guthrie, Mr Spence, the plaintiff, was able to attend to his ordinary activities of daily living from the time he turned 18. He had the intelligence and diligence to complete a university course (with some difficulties), and could maintain employment in a responsible position that required the exercise of specialised skills.
8. In Guthrie, Campbell JA explained at [140]: "[140] In the context in which it occurs in s 11(3)(b), the relevant 'affairs' are ones in relation to a particular cause of action. In a general sense, managing one's affairs in relation to a particular cause of action includes doing the various things that would need to be done if that cause of action were to be dealt with. Thus, it includes seeking advice about whether a civil remedy exists for some perceived wrong, seeking advice about the difficulties, risks, cost and effort involved in pursuing any such remedy and the likely returns, comprehending and evaluating that advice, and, if the decision to commence proceedings is taken, thereafter engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action."
9. Further, Campbell JA observed at [178] to [179]: "[178] … It can also be accepted that, if a person is able to manage their affairs in relation to numerous and diverse areas of their life, a good explanation would be called for before one accepted that that person was not able to manage their affairs in relation to some different area of their life. In my view, the medical evidence, and the history of the manner in which Mr Spence has come to deal with the consequences of the assaults, provide that explanation so far as his ability to manage his affairs in relation to dealing with his causes of action concerning the assaults is concerned. [179] The judge accepted, as do I, the medical evidence that Mr Spence suffers from post traumatic stress disorder, that the assaults were the trauma that was, at the least, a significant precipitating cause of the condition, and that avoidance of any form of stimuli or life events which may remind him of the assaults is one of the characteristics of the disorder. The avoidance behaviour is not only a matter of conscious decision on his part. As well, Mr Flockhart reports that there is 'unconscious defensive avoidance or dissociation'."
10. The plaintiff further referred to Cruwys v State of New South Wales (unreported, Supreme Court of NSW, No 11293/04, Registrar Walton, 18 May 2005) at [24]-[26]. The Registrar stated that where there is evidence that requiring a plaintiff to give evidence more than once will likely significantly worsen his or her psychiatric condition, the hearing in relation to the limitation issues should be heard with the substantive hearing.
11. I accept that if the plaintiff is required to give evidence it may have an adverse effect on his metal health. As Dr England says, because the plaintiff's PTSD arose from his involvement with the criminal justice system, it is likely that being immersed in his own legal claim could trigger the plaintiff's symptoms.
12. The parties referred to Johnson v State of New South Wales [2017] NSWSC 1591 ("Johnson") and Wells v Commonwealth of Australia [2014] NSWSC 148 ("Wells"). Johnson is instructive to the plaintiff's case, as it is factually similar.

Johnson

1. In Johnson, the plaintiff had been a police officer from 1986 to 2002. He claimed damages for psychiatric injuries he sustained due to his exposure to traumatic incidents over the course of his career. The statement of claim sought an order for an extension of time under the Limitation Act and/or s 151D of the Workers Compensation Act 1987 (NSW). No separate application was made for these orders by way of notice of motion. As in these proceedings, the plaintiff in Johnson alleged that he was under a disability.
2. The defendant pleaded that the action was barred under the Limitation Act. It sought orders that the plaintiff's application for an extension of time be heard and determined separately and before the hearing of the substantive proceedings. The plaintiff opposed the defendant's orders, relying upon Wardley to argue that all issues should be heard and determined as part of the hearing of the substantive claim.
3. In Johnson, the Court acceded to the defendant's application, directing the plaintiff to file a notice of motion seeking an extension of time and a declaration that the limitation period was suspended pursuant to s 52 of the Limitation Act.
4. In Johnson, Johnson J stated at [18], [19], [21] and [23]: "18. Section 58(2) Civil Procedure Act 2005 makes the matters referred to in ss 56 and 57 of that Act mandatory relevant considerations for the purposes of determining the dictates of justice. Section 56 identifies the overriding purpose of the Act and UCPR as being "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". The matters to be taken into account under s 57(1)(a)-(d) relate to the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings. If the Plaintiff's application for an extension is heard separately and he succeeds, there will be a need for two hearings rather than one. However, if his application for extension is refused, there will be no trial: Wells v Commonwealth of Australia at [52]-[54]. 19. It has been said that the wording of s 58(2) Limitation Act 1969 provides some support for the making of an order under Rule 28.2 UCPR for separate determination of an extension application. The requirement in s 58(2)(b) that an applicant for an extension of time adduce "evidence to establish the cause of action" is a powerful indication that Parliament contemplated that such applications would, at least in some cases, be determined in advance of the trial. If all issues, including the extension, were to be determined at trial, the provision would be otiose since a plaintiff would have to prove the cause of action on the balance of probabilities in any event: Wells v Commonwealth of Australia at [18]-[20]. … 21. Here, the plaintiff has raised, in general terms, the prospect of reliance upon the disability provisions in ss 11(3) and 52 Limitation Act 1969. These provisions raise particular issues of some complexity (see, for example, SW v State of New South Wales [2010] NSWSC 966 at [167]). A disability issue lends itself to the use of the separate determination procedure in [UCPR 28.2]. … 23. Mr Andrews submitted that the critical issue for the purpose of any extension of time application was whether there was significant prejudice to the defendant so that the chance of a fair trial was unlikely: Commonwealth of Australia v Smith [2005] NSWCA 478 at [128]-[129]. He submitted that this aspect could be tested at a time close to the final hearing, but not by way of a separate and earlier application. It may be accepted that the onus lies upon the Plaintiff, as the applicant for an extension of time, to show that a fair trial may be had notwithstanding the passage of time: Prince Alfred College Incorporated v ADC at [105]. However, an assessment whether a fair trial can occur involves a multi-faceted examination of issues relevant to the particular provisions of the Limitation Act 1969 which are to be applied."
5. In this current application, the plaintiff attempted to distinguish Johnson for three reasons. Firstly, the plaintiff argued that where the only issue is whether the defendant is significantly prejudiced, there is merit in determining the issue at the outset in advance of the substantive hearing. In the present matter, the defendant has served no evidence of any actual prejudice, let alone prejudice of a significant nature.
6. Secondly, the plaintiff argued that it is better to determine whether and when a plaintiff was disabled before a substantive proceeding, at least if the issue can be determined separately without inquiring into when the cause of action accrued. In Johnson, the Court did not appear to consider whether the hearing of the extension of time application would involve adducing complex factual and medical evidence on this issue. It seems fairly clear that the Court did not have the benefit of separately considering the evidence relevant to the hearing and determination of issues under the Limitation Act. The plaintiff submitted that there appeared to be no debate in Johnson about when the cause(s) of action accrued. The same is not true in these proceedings.
7. Thirdly, and more generally, the plaintiff submitted that this Court must act carefully in applying the statement in Johnson that "[a] disability issue lends itself to the use of the separate determination procedure in [UCPR 28.2]". The Court should still properly and carefully consider all relevant factors, and the principles from Southwell set out earlier remain applicable. The plaintiff submitted that they operate in favour of the notice of motion being heard with the substantive proceeding.

Consideration

1. It is trite law that each case depends on its facts. Like in Johnson, the issues in dispute in this case are not limited to whether the defendant is actually and significantly prejudiced such that it will not have a fair trial. In Johnson, Johnson J was of the view that the issue of disability and the police officer suffering PTSD was amenable to a separate determination. In these proceedings, with regards to the issue of the date of accrual, the plaintiff's expert Professor McFarlane finds it to be a later date than the defendant's expert, Dr Brown. As previously stated, the later date is more favourable to the plaintiff. I do not think that this disputed issue militates against a separate determination.

Overlap of witnesses

1. It is unlikely that any of the doctors will be called to give evidence. In any event, whether they are will be a decision of the Judge hearing the separate determination. It is also unlikely that the plaintiff will need to be called, but if he is, his evidence should be limited to a few questions on discrete issues. It is not an opportunity to cross examine the plaintiff in relation to credibility.

Effluxion of time - prejudice

1. Where there is evidence of significant actual prejudice such that a defendant is likely to be denied a fair trial, it may be quite appropriate for an application for an extension of time to be determined separately an in advance of the substantive proceeding.
2. Prince Alfred College was a historical child sexual abuse matter. In 2008, the respondent commenced proceedings against the boarding school where he had been abused 46 years earlier in 1962. On appeal from the Full Court of the Supreme Court of South Australia, the High Court set aside the Full Court's order granting an extension of time. In the opinion of the plurality of the High Court, there could not be a fair trial because the passage of 46 years led to actual and significant prejudice. In particular, the housemaster of respondent's dormitory had died. His evidence was therefore unavailable on the critical question of vicarious liability. Notes of a psychologist consulted by the respondent from 1996 to 2005 had also been lost. Quite apart from the significant loss of evidence, the High Court held that the appellant was entitled to have formed a view that the respondent had decided not to bring proceedings after the appellant had agreed to meet the cost of his medical, legal and school fees.
3. In Prince Alfred College, French CJ, Kiefel, Bell, Keane and Nettle JJ held at [105]-[106]: "[105] Where a trial is conducted long after the events which gave rise to the dispute, the risk that the trial will be a mere simulacrum of the process of doing justice becomes greater with the passage of time. The onus is upon the party claiming an extension of lime to show that o fair trial may be had now. notwithstanding that passage of time. That onus is not discharged by saying that the putative defendant should have been more astute to conserve its own interests by anticipating litigation that did not eventuate until many years after the expiration of the limitation period... [106] Where an injured party makes a deliberate decision not to commence proceedings. there must be strong reasons to permit proceedings to be brought against a defendant who reasonably considered that the dispute had been laid to rest. It has been recognised that there is an element of oppression involved in bringing an action so long after the circumstances which gave rise to it have passed..."

The defendant's submissions

1. The defendant submitted that given the effluxion of more than 17 years since the material acts and omissions which are said to have caused injury, it is appropriate to hear the plaintiff's application for an extension of time prior to the substantive proceedings: Prince Alfred College.
2. The defendant submitted that the wording of s 58(2) Limitation Act provides some support for the making of an order under UCPR 28.2 for separate determination of an extension application. The requirement in s 58(2)(b) that an applicant for an extension of time adduce "evidence to establish the cause of action" is a powerful indication that Parliament contemplated that such applications would, of least in some cases, be determined in advance of the trial. If all issues, including the extension, were to be determined at trial, the provision would have no work to do, since a plaintiff would have to prove the cause of action on the balance of probabilities in any event: see Wells at [18]-[20].
3. To properly consider an application for an extension of time in which to commence proceedings, the Court requires the plaintiff to fully and frankly explain the circumstances in which the limitation period was permitted to expire. This explanation is essential to the exercise of the discretion.
4. The lapse of time from when a cause of action accrued to when a pleading was filed is a relevant factor to be taken into account by a court when it is deciding whether to exercise its discretion to grant an extension of time. However, the plaintiff submitted that this is not synonymous with stating that the effluxion of time is a basis for a plaintiff's extension of time application being heard separately and in advance of the substantive proceeding. Prince Alfred College is also not authority for any such proposition.

Consideration

1. The defendant in these proceedings has not yet incurred expenses in investigating the records and witnesses pertaining to the plaintiff's history and psychiatric condition from 1981 to 2003, as they are still in issue. These investigations will need to be undertaken whether the extension of the Limitation Act application is heard separately or together with the substantive hearing. Hence, at this stage, it is not known whether there is significant and actual prejudice such that defendant will not be afforded a fair trial.
2. If the defendant wishes to establish significant and actual prejudice, it will have to adduce evidence at the separate hearing. It will need to show that the prejudice is such that it will not be able to obtain a fair trial. Although not all factors affecting this determination are known at this stage, the delay is lengthy, as either 17 or 19 years have passed since the cause of action accrued. The defendant will undoubtedly suffer presumptive prejudice due to the lengthy delay.

Section 56, 57 and 58 of the Civil Procedure Act

1. By operation of s 58(2) Civil Procedure Act, the matters referred to in ss 56 and 57 of the Act are mandatory relevant considerations for the purposes of determining the dictates of justice. Section 56 of the Civil Procedure Act identifies the overriding purpose of the Act and UCPR as being "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". The matters to be taken into account under s 57(1)(a)-(d) relate to the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings.

Appeal and/or settlement

1. If the plaintiff's application for an extension is heard separately and he succeeds, there will be a need for two hearings rather than one. However, if his application for extension is refused, there will be no trial. It is possible that if a separate determination is favourable to the plaintiff, the matter may settle. There may instead be an appeal, which results in an additional hearing. In the event that the plaintiff is required to give evidence, it should be short and directed to discrete issues. I accept that this may be difficult for him.

Length of hearing

1. It is difficult at this stage to determine the length of the hearing of the separate determination and the hearing of the substantive matter. The hearing of the separate question is likely to take two days, and the hearing of the substantive matter is likely to run for about three weeks. An order for a separate determination will save time and costs. It can be listed for hearing relatively quickly.

Determination

1. Taking all relevant factors into account, I am satisfied that I should adopt the approach advanced by the defendant in this case. This approach is more consistent with the requirements of ss 56-62 Civil Procedure Act.
2. In circumstances where there is a delay of about 17 or 19 years, and where the proceedings have already been on foot in this Court for some 19 months, a separate determination is a reasonable way to progress this litigation in a manner which will facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Costs

1. Costs are discretionary. The appropriate order for costs is that costs are reserved.

The Court orders that: (1) There is to be a separate determination of the following issues before the substantive hearing: (a) whether the plaintiff should be granted an extension of time pursuant to the Limitation Act 1969 (NSW); and (b) whether a declaration should be made that the plaintiff was disabled within the meaning of s 52 of the Limitation Act between November 1999 and December 2012. (2) Costs are reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2020