Doueihi v State of New South Wales

Supreme Court of NSW|2022-10-12|Before: Schmidt AJ

Solicitors: Brander Smith McKnight (Plaintiff) Crown Solicitors (Defendant) File Number(s): 2017/256651

JUDGMENT

Mr Doueihi commenced these proceedings in 2017, when not legally represented, claiming that the State was liable for the serious misconduct, in 2015, of various police officers, which had resulted in him suffering considerable harm, for which he was entitled to receive damages.
At the hearing of Mr Doueihi's March 2022 motion, by which he sought leave to file a third further amended statement of claim, the State did not oppose leave to file aspects of that amended pleading being given. Accordingly, that leave was granted.

The limitation issues

These issues turn on the consideration of the evidence led, in the context of the requirements of s 50D of the Limitation Act. It provides: (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts - (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.
There is no issue that the onus falls on the State to establish that the limitation issue should be determined at this stage, as well as that the disputed claims are statute barred. Nor that Mr Doueihi had no obligation to give evidence at this stage of the proceedings, even though what was in issue turns on what he knew about the disputed claims, at relevant times.
There is also no issue about the reasonableness of the steps Mr Doueihi had pursued, having seen a psychologist, whose report is in evidence, as well as seeking a referral for pro bono legal assistance and legal aid, himself then retaining solicitors and counsel and also later retaining different solicitors and counsel.

Can the limitation question justly be determined at this stage?

I am satisfied that the limitation cannot justly now be determined.
The proper construction of s 50D and the proper time at which a limitation issue such as that raised by the State should be determined, both arose for consideration in Murgolo v AAI Ltd t/as AAMI [2019] NSWCA 295. There the approach explained in Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514; [1992] HCA 55 was followed: at [62]-[63], [71] and [126].
Namely, that while economy of resources may favour disposing of claims without the need for a full trial, a case may not be apt for determination of a limitation question on an interlocutory basis. That is because such an application may only succeed if "the question is a clear one and there is no real question of fact or law to be determined": at [62]. In the result it is only in "the clearest of cases" that limitation questions can be decided at such an interlocutory stage: at [62].
I am satisfied that this is not such a case, given both the state of the evidence, the facts in issue and the legal issues which arises to be resolved as a result, as I will explain.

Does the evidence establish that the disputed claims were statute barred?

To support the leave he sought Mr Doueihi relied on affidavits sworn by his current solicitor, Mr Onishi. The State relied on an affidavit sworn by Mr Coles, the solicitor in the Crown Solicitor's Office who has day to day carriage of this matter. They were not required for cross-examination.

The evidence

The result of Mr Doueihi not having given evidence is that what is in issue turns on inferences which must be drawn from documents in evidence. They establish that: 1. the proceedings were commenced in August 2017 by a statement of claim to which was attached a handwritten document Mr Doueihi had plainly himself prepared. It did not comply with applicable requirements of the Rules or even disclose, in the necessary way the case which he sought to pursue. But it did refer to police actions, the 2015 house fire, tampering with electrical devices and the resulting adverse impacts on Mr Doueihi's health. It made no reference, however, to the Coroner; 2. before Davies J in June 2018 Mr Doueihi said he had pro bono counsel who was assisting him and his Honour concluded that he should have another opportunity to plead his claims. But the result was that the statement of claim was struck out: Doueihi v New South Wales Police (Supreme Court (NSW), 12 June 2018, unrep); 3. Mr Doueihi filed his amended statement of claim on 9 July 2018, which also did not comply with the requirements of the Rules, even though he may then have had advice of counsel. It pleaded both the January 2015 fire and the Coroner's report and provided: "Particulars 1. Malicious Prosecution 2. Breach of Common Law Duty by NSW Police and Trespass 3. Fraudulent Misrepresentation 4. Failure of Consideration 5. Inducing Person(s) to enter into certain arrangements Injury 1. Anxiety 2. stress 3. depressions & homelessness 4. loss of employment" 1. in February 2019 the State's strike out and summary dismissal motion was listed for hearing, but was vacated because of a Legal Aid Committee Review of Mr Doueihi's application for legal aid: s 57 of the Legal Aid Commission Act 1979 (NSW); 2. Mr Doueihi then obtained other legal advice and pursued leave to file a further amended statement of claim, which the State also challenged. That pleading did not pursue the now disputed claims in relation to the house fire and Coroner. Mr Doueihi was legally represented but Davies J concluded that the then claimed misfeasance in public office and vicarious liability had still not been properly pleaded and that applicable requirements of the Law Reform (Vicarious Liability) Act 1983 (NSW) had not been complied with in those proceedings: Doueihi v State of New South Wales [2020] NSWSC 1065. Leave to replead the misfeasance claims was, however granted; 3. a second further amended statement of claim was filed in September 2020 at a time when his now former solicitors continued to act for Mr Doueihi. It also did not pursue the now disputed claims in relation to the house fire and Coroner. It was also challenged by the State, but Harrison AsJ concluded that it could not be summarily dismissed, even though Mr Doueihi's case on the then pleaded claims was weak: Doueihi v State of New South Wales [2021] NSWSC 341; 4. Mr Doueihi later retained new solicitors, with the result consent being sought for the filing of the third further amended statement of claim which again pleaded the now disputed claims in relation to the house fire and Coroner; 5. that consent was not given, the Crown Solicitor advising that the State's objections included that: 1. allegations made about the 2015 house fire and resulting claims of misfeasance in public office, which was an intentional tort to which a six-year limitation period applied were out of time, the limitation period having expired in 2021; 2. Davies J had struck out the house fire claims originally pleaded in respect of claims made about misfeasance in public office; 3. the second further amended statement of claim had not maintained the house fire claims, with the result that Mr Doueihi should not be permitted to replead them, they now being statute barred; 4. the claims for personal injury damages were also statute barred, given the three-year limitation period: s 50C(1) Limitation Act. In any event evidence served showed that Mr Doueihi had suffered psychological conditions which predated the 2015 house fire, having commenced in 2013 as the result of various personal pressures; and 5. in the result, given Mr Doueihi's pre-existing injuries, the personal damages claims were doomed to fail. 1. The result was the filing of the motion and the need to resolve the remaining issues as to the third amended statement of claim.

The pleadings

The amended pleadings to which no objection was taken at the hearing claim that: 1. the proceedings arise out of events which began in 2014, when Mr Doueihi was in dispute with his brother, sisters and the husband of one of them, a police officer, over his entitlement to a property at Earlwood, which had been dealt with in his father's will. In issue was whether a competing will was a forgery; 2. during the course of the dispute he was charged with assault occasioning actual bodily harm and stalking and intimidating another, but was not informed of what he was being charged with. An Apprehended Violence Order was also sought; 3. he was later intimidated by various police officers into signing papers which they presented to him at the Burwood Police Station, including a consent to an AVO, with the result that consent orders were later made by the Burwood Local Court; 4. in February 2015 there was a fire where Mr Doueihi then lived. He suffered an electric shock and made a 000 call to which about 10 police, who did not identify themselves, attended. Without his consent they entered and later falsely claimed that management had informed them that they could smell cannabis. He was not charged but was intimidated and felt fearful when they asserted that they had found a bong which they refused to show him or examine for fingerprints; took his phone and deleted content from it; accused him of stealing a stereo and charged him with maliciously destroying or damaging property and larceny; 5. the police officers had trespassed, having no legal right to enter, for which he is entitled to damages; 6. identified police officers involved in these events had engaged in misfeasance in public office, as well as an offence under s 545B(2) of the Crimes Act and, in the alternative, an offence under s 7 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); 7. Mr Doueihi had suffered specified mental harm and consequential economic loss as a result of the pleaded conduct of these police officers, for which the State is responsible, given their authority, or purported or de facto authority over him; 8. that specified police officers have personal liability to Mr Doueihi for their misfeasance in public office, for which the State is vicariously liable; 9. in the alternative, that the conduct of specified officers was carried out to compel him to take certain actions and caused him reasonable apprehension that if he did not accede, he would be detained and falsely accused of consumption of drugs with consequential deprivation of liberty and reputational, economic and physical and mental harm; and 10. in the result that officer committed offences under s 545B of the Crimes Act and, in the alternative, under s 7 of the Crimes (Domestic and Personal Violence) Act, and s 314 of the Crimes Act.
The disputed amendments concern the 2015 fire and the Coroner and include claims that: 1. police officers falsely reported that wiring of a fridge had been tampered with and that Mr Doueihi suffered from a mental illness and was an ice addict; 2. that ultimately led to the incorrect conclusion that the probable ignition source of the 2015 fire was abnormal or unintended electrical activity involving wiring and components in the rear cavity of the fridge; 3. it was later determined that there was no evidence to suggest tampering with the wiring or electrical components before the fire; 4. still police did not reveal this, falsely reporting to Mr Lipovac of Worksite Investigations, which had been instructed by the insurer, that an expert report had been obtained which said that the start of the fire was inconclusive and the cause was not known; 5. this led to Mr Lipovac producing two reports based on false police information; 6. that a police officer also falsely informed the Coroner that Mr Doueihi did not request that an inquiry be held into the fire; and 7. that this police officer also had personal liability for misfeasance in public office for which the State is vicariously liable.

What inferences can be drawn from the evidence?

I am satisfied that the proper inferences to be drawn from the evidence include: 1. when Mr Doueihi filed his amended statement of claim on 9 July 2018, pleading both the January 2015 fire and the Coroner's report, misfeasance in public office and resulting damage, he believed that the State was responsible for the misconduct which he believed the named police officers had pursued; 2. those claims were abandoned in the further amended statement of claim filed after he retained the first solicitors he engaged, because of advice that he then received; and 3. those claims were renewed in the third further amended statement of claim after he retained the new solicitors by whom he is now represented, because of further advice that he received after he retained them.

The requirements of s 50D are not satisfied

In the result the State's case that the evidence establishes that the requirements of s 50D(1) are satisfied may not be accepted.
That is because of the way the requirements of the section were construed in Murgolo.
There it was observed that while "the language of s 50D(1) is beguiling in its simplicity, there are circumstances where its application is fraught with difficulty": Murgolo at [39]. This is such a case.
What is required is identification of what the injured person knows or ought to know of certain "facts": at [40]. That must be understood "to include opinions or beliefs formed on the basis either of direct observation (and experiences) or of information supplied by others and accepted by the prospective claimant": at [41]. In this case, information about the fault of the State for his claimed injuries.
The singular "fact" referred to in paragraph of s 50(1)(b), unlike the facts dealt with in (a) and (b) "incorporates causation, fault and identity", each of which are "an evaluative conclusion, to be derived from primary facts": at [97]. Thus the fact central to the s 50D(1)(b) enquiry may be complex, involving questions of law, as in the case of the identity of an employer: at [98]. They may also involve conclusions which are apt to be in issue in the proceedings and so may only be established after trial: at [101].
The statutory purpose of s 50D(1) is to "identify the time at which it is reasonable to require that a person should consider the commencement of proceedings, within the ensuing three years": at [43]. What is required is "the identification of 'the first date' on which a person knows something": at [44]. But there may be "an ongoing process of inquiry which may give rise to fluctuating results, with no clear date at which the process is concluded". For example in relation to determining the level of injury which has been suffered: at [44].
Pertinently in this case, the "first date" that a plaintiff knew something "does not necessarily mean finding the first date on which the plaintiff believed that he knew something", especially in the case of "a composite fact, such as the identity of the defendant or a causal connection between the injury and the defendant's act, or the characterisation of the defendant's act as involving fault": Murgolo at [46].
The question of knowledge arises to be determined when the defence case that the claim has been brought out of time arises to be resolved. It is then that whether the evidence establishes that at a particular time something was believed and whether it can then be said that the plaintiff knew that particular fact, must be determined: Murgolo at [47].
In Murgolo, that was the identity of the employer. Initially identified to be one company, with proceedings against it later being withdrawn when a second company was identified and then proceedings against the first company again later being pursued.
It was thus concluded that this did not prevent the proceedings again being pursued against the first company. That was because it was wrong to treat knowledge as frozen at a particular point, making the approach that one cannot "unknow" something for the purposes of s 50D(1) inappropriate. A belief formed at a particular point in time is not the sole and sufficient factor constituting knowledge for the purposes of s 50D(1): Murgolo at [52].
Further, while belief and knowledge are not necessarily the same, they may overlap: Murgolo at [104]. But what the section requires is that a plaintiff knew or ought to have known something, with the result that "knowledge of the 'facts' in s 50D is satisfied by a reasonably held belief in the conclusions identified in that section": Murgolo at [125]. In the result, when further information is provided, a belief that might formerly have been reasonably held may cease to be, so that it is possible that there was an insufficiently certain belief at a particular time, which later altered when further material was provided.
Approaching the evidence on this application and the inferences to be drawn from it in this way, I am satisfied that it must be accepted that before he was legally advised, Mr Doueihi came to believe that his injuries had been contributed to by the matters about which he initially pleaded in relation to the 2015 fire and the Coroner. But that is not enough. In the absence of legal advice, that could not amount to the necessary knowledge required by s50D(1), given the composite facts involved.
Mr Doueihi no longer even had the belief he first had about these matters, after he received advice from the first solicitors who he retained. On the evidence, it was only after he retained his second solicitors that he came to have the necessary knowledge.
In the result I am satisfied that it has not been established, at this stage, that the proceedings have been brought out of time.

The failure to comply with the requirements of the Rules

I am also satisfied that despite Mr Doueihi's failure to have complied with all the requirements of r 15.12 as yet, the leave sought should be granted.
That rule requires service of a statement of particulars of injury disabilities and out of pocket expenses, attaching specified documents, as soon as practical after filing a statement of claim.
That Mr Doueihi has suffered financial pressures may be inferred from what is in evidence. But a psychologist's report has been served and an appointment made for him to be examined in December by another expert. Given the early stage at which these proceedings remain, that the State has suffered any real prejudice as the result of his failure to comply, as yet, with the rule is not apparent.
The practical effect of the leave to file his further pleading is that Mr Doueihi must now comply with the balance of r 15.12.

Orders

For the reasons given Mr Doueihi is given leave to file the balance of his third amended statement of claim. The usual costs order under the Uniform Civil Procedure Rules is that costs follow the event, in this case that the State bear Mr Doueihi's costs of the motion as agreed or assessed. Unless the parties wish to be heard, that will be the Court's order.
I will also hear the parties on the appropriate directions to be given for the further preparation of the matter for hearing.

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 October 2022

Uniform Civil Procure Rules 2005(NSW)

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