Fitzgerald v State of New South Wales

Issues for Determination

1. By Notice of Motion filed on 30 June 2017, the Defendant sought orders to the following effect: "1. That pursuant to section 61 of the Civil Procedure Act 2005 (NSW) and rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), the following matters to be determined separately from any other question in the proceedings (and before any further trial of the proceedings): 1.1 Whether the Plaintiff's claim for damages against the Defendant is out of time and not maintainable pursuant to sections 14 and/or 18A of the Limitation Act 1969 (NSW). 1.2 Whether the Plaintiff is entitled to an extension of time pursuant to: (a) section 58(2) of the Limitation Act 1969 (NSW); (b) section 60G(2) of the Limitation Act 1969 (NSW); and/or (c) section 60E of the Limitation Act 1969 (NSW). 2. In the alternative, that the proceedings be summarily dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) as the Plaintiff's cause of action against the Defendant is statute barred.
2. In written submissions filed before the hearing on 22 November 2017, the Plaintiff opposed the Defendant's application and contended that the issues under the Limitation Act 1969 should be heard and determined as part of the final hearing of the Plaintiff's substantive claim.
3. At the hearing of the Notice of Motion, Mr Hutchings, counsel for the Defendant, submitted that the appropriate way forward was for the Plaintiff to file and serve a Notice of Motion seeking orders under the Limitation Act 1969, together with his supporting evidence, but that the Court need not make an order at this stage for separate determination of that application. Rather, the Defendant would consider the material served by the Plaintiff and form a view as to whether the Defendant's application for separate determination should proceed so as to require a ruling from the Court. It was submitted that this approach would overcome the present difficulties confronting the Defendant, whilst leaving open the question whether an order under Rule 28.2 UCPR should be made.
4. Mr Andrews, counsel for the Plaintiff, opposed this approach and submitted that the parties should serve all their evidence with the view to the limitation issues being considered (perhaps shortly) before the final hearing of the Plaintiff's substantive claim.
5. At the hearing of the Notice of Motion, the Defendant relied upon the affidavit of Carolyn Coventry sworn 11 September 2017 and a volume of documents which were exhibited to that affidavit (Exhibit CAC-1). The material contained in that affidavit claims prejudice in various areas on behalf of the Defendant. At the hearing of the Notice of Motion, the parties agreed and the Court accepted that determination of the Defendant's application did not involve the making of findings concerning areas of claimed prejudice. Those were matters for consideration when the issues raised under the Limitation Act 1969 fell for determination. I approached the affidavit of Ms Coventry on this basis.
6. An issue raised for the Plaintiff in an affidavit of Ms Moya de Luca-Leonard sworn 21 November 2017 involved the Plaintiff's fitness to give evidence and be cross-examined, in particular on more than one occasion. Medical evidence concerning this issue will fall for consideration as well at any future hearing. For the purpose of the present application, it is sufficient to note that the Plaintiff has raised that aspect.

Some Legal Principles

1. A law providing for limitation of actions is classified as substantive and not merely procedural: John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at 563 [161].
2. The onus of satisfying the Court that the discretion to extend a limitation period should be exercised lies upon the Plaintiff: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 at 544, 553-554; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 at 164-165 [99], 167 [105]. It has been said that an applicant for an extension of time must explain unequivocally his delay: ASB-Tech Services Pty Limited (in liquidation) v Doelands and Anor [2003] NSWCA 167 at [30].
3. As Adamson J observed in Wells v Commonwealth of Australia [2014] NSWSC 148 at [7] and [18], there are four available means of determining limitation issues: 1. at trial; 2. on a defendant's motion for summary judgment; 3. by way of a separate question under Rule 28.2 UCPR; 4. on a summons in advance of a plaintiff filing a Statement of Claim.
4. It has been said that the very nature of the issues raised by the Limitation Act 1969 involve considerations which are frequently best determined in advance of the final hearing of the substantive claim. As Adamson J observed in Wells v Commonwealth of Australia at [18], if the limitation issue is decided in favour of the Defendant, it obviates the need for a trial altogether. Her Honour observed that it is not uncommon that a limitation issue will be determined in advance of a hearing.
5. In an appropriate case, a limitation issue may be left for determination at a final hearing of the substantive claim (see, for example, Fogg v Kane Constructions (NSW) Pty Limited and Anor (No. 5) [2015] NSWSC 648 at [76]-[112]). However, whether that course is appropriate requires consideration of the particular case. It has also been said that difficulties can sometimes arise if a limitation issue is determined as a separate question: State of New South Wales v Gillett [2012] NSWCA 83 at [108].
6. The Plaintiff relies upon the well-known passage in Wardley Australia Limited v State of Western Australia (1992) 175 CLR 514; [1992] HCA 55 at 533. The Plaintiff relies, as well, upon the frequently cited passage from the joint judgment of Kirby and Callinan JJ in Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19 at 55 [168]-[169]. I observe that the statements in the latter case were not made in the context of a limitation issue, but constitute a more general warning against fragmentation of civil proceedings.
7. Judges of this Court have acknowledged that, since the decision in Tepko Pty Limited v Water Board, the enactment of the Civil Procedure Act 2005 (and, in particular, ss.56-62), has served to modify the previously cautious approach towards the use of separate questions in civil litigation: Johnson v Trustees of the Roman Catholic Church [2009] NSWSC 309 at [19]-[21] (Hoeben J); Wells v Commonwealth of Australia at [64]-[65].
8. 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].
9. 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].

The Present Case

1. Consideration of these principles supports the Defendant's submission that the Plaintiff should be required to identify by way of a Notice of Motion the orders which he seeks under the Limitation Act 1969 with the evidence upon which the Plaintiff proposes to rely in this respect being served upon the Defendant. If a Rule 28.2 UCPR application is then pressed for separate determination of the limitation issues, and was to be contested by the Plaintiff, there will be a sufficiently clear identification of the issues which would require determination by the Court.
2. Although the pleadings and correspondence to date have not foreshadowed that the Plaintiff would rely upon the disability provisions in ss.11(3)and 52 Limitation Act 1969, counsel for the Plaintiff has indicated that there may be a claim of disability made in this case. As noted in Johnson v State of New South Wales [2017] NSWSC 1591 at [21], a disability issue lends itself to the use of the separate determination procedure in Rule 28.2 UCPR.
3. The Plaintiff's Statement of Claim refers to the Plaintiff's service as a police officer between 1979 and his retirement in 2001. As noted earlier, the Statement of Claim recites events during the Plaintiff's service as a police officer during a 15-year period between 1983 and 1998 which are said to ground his claim for damages. It is no doubt because of this range of time that paragraph 19(d) of the Statement of Claim refers to various alternative provisions which may give rise to an extension of time. I am satisfied that some greater precision is required to assist the Defendant and the Court to understand the order or orders which the Plaintiff seeks in this respect.
4. 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 167 [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. To the extent that the Plaintiff relies upon Wardley Australia Limited v State of Western Australia and Tepko Pty Limited v Water Board, I note that the Plaintiff is not contending that the extension of time issue must be left to the final substantive hearing. There is an acceptance in the Plaintiff's submission that the limitation issue will most likely be considered before the final hearing, but at a time much closer to that hearing.
6. I am satisfied that the approach advanced by the Defendant should be adopted in this case. This approach is more consistent with the requirements of ss.56-62 Civil Procedure Act 2005. In circumstances where the proceedings were commenced in this Court some 14 years after the Plaintiff resigned as a police officer, by reference to events extending back many years before then, the orderly progress of the proceedings requires that the Plaintiff identity with appropriate specificity in a Notice of Motion the provisions of the Limitation Act 1969 upon which he relies together with service of evidence which bears on these issues.
7. In circumstances where the proceedings have already been on foot for nearly two years, this is a reasonable way forward to progress this litigation in a manner which will facilitate the just, quick and cheap resolution of the real issues in the proceedings.
8. Short minutes should be brought in to give effect to this ruling. Having regard to the familiarity which I have developed with the substantial volume of documentary material relied upon on this application, it would seem appropriate that the orders to be made provide for any contested application for separate determination of the limitation issues to come before me for hearing at a future time. [Counsel addressed on the appropriate orders to be made]
9. I make the following orders: (1) The Plaintiff is to file and serve a Notice of Motion seeking: 1.1 an extension of the limitation period to commence these proceedings; and/or 1.2 a declaration that the limitation period was suspended pursuant to s.52 Limitation Act 1969 (NSW) by 30 March 2018. (2) The Plaintiff is to serve all expert and lay evidence upon which he intends to rely in relation to the Notice of Motion referred to in order 1 by 30 March 2018. (3) Proceedings to be listed for mention before Johnson J at 9.15 am on 27 April 2018. (4) The Defendant is to serve all expert and lay evidence upon which it intends to rely in relation to the Notice of Motion referred to in order 1 by 29 June 2018. (5) The proceedings are listed for directions before Johnson J at 9.00 am on 5 July 2018. (6) The Defendant's Notice of Motion filed 30 June 2017 is adjourned to 5 July 2018. (7) The costs of the Notice of Motion heard on 22 November 2017 are reserved. (8) Liberty to apply on three days' notice.

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: 22 November 2017