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[2012] NSWDC 164
District Court of NSW
2012-09-26
Mr J
Original judgment source is linked above.
Judgment 1The plaintiff by amended notice of motion filed on 14 August 2012 seeks orders as follows: (1)Pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) the limitation period for the actions pleaded in paragraphs 5, 7, 8, 10, 11, 13 and 16 of the Third Amended Statement of Claim be extended to the date of the filing of the Statement of Claim or such other date as the Court deems fit. (2)The plaintiff be granted leave to file the Third Amended Statement of Claim pursuant to s 64(1)(b) and s 65 of the Civil Procedure Act 2005 (NSW) in respect of the actions pleaded in paragraphs 7, 8, 10, 11, 13 and 16 of the Third Amended Statement of Claim. (3)The defendant be required to produce documents under subpoena dated 28 October 2011 and 25 June 2012 issued by the plaintiff upon the defendant. (4)Costs. (5)Such other order as this Honourable Court sees fit. 2The application for leave under ss 64(1)(b) and 65 Civil Procedure Act 2005 (NSW) sought in order 2 was not proceeded with (Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676), nor was I asked to make orders concerning the defendant's failure to provide documentation in answer to subpoenae issued in October 2011 and June 2012.
The legislation 3The limitation period in Queensland for actions in trespass, such as assault or false imprisonment, is the same as that for other actions in tort: Halsbury's Laws of Australia (LexisNexis) at [415-340]; ss 10 and 11 Limitation of Actions Act 1974 (Qld). 4Sections 30 and 31 of Limitation of Actions Act 1974 (Qld) ("the Act") are as follows: "30 Interpretation (1) For the purposes of this section and sections 31, 32, 33 and 34 - (a) the material facts relating to a right of action include the following - (i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded; (ii) the identity of the person against whom the right of action lies; (iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury; (iv) the nature and extent of the personal injury so caused; (v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty; (b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing - (i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and (ii) that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action; (c) a fact is not within the means of knowledge of a person at a particular time if, but only if - (i) the person does not know the fact at that time; and (ii) as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time. (2) In this section - appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts. 31 Ordinary actions (1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person. (2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court - (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly. (3) This section applies to an action whether or not the period of limitation for the action has expired - (a) before the commencement of this Act; or (b) before an application is made under this section in respect of the right of action." 5Both parties relied upon Marsden v Broadbent [2010] QSC 431 ("Marsden"), where Atkinson J helpfully summarised the authorities and history of this legislation as follows (at [5]-[9]): "[5] The Act restricts the rights and liabilities of potential litigants and imposes strict obligations on those who seek remedies in court once the limitation period is past but is, regrettably, less than clear in its expression. In their joint judgment on the construction of this Act, Gummow, Hayne and Crennan JJ said in Queensland v Stephenson [2006] HCA 20 at [1]: Of the British ancestor of Pt 3 [of the Act], Lord Reid observed that it had a strong claim to the distinction of being the worst drafted Act on the statute book. [6] Kirby J observed, somewhat trenchantly, at [44]-[45]: In Ditchburn v Seltsam Ltd, I suggested that an encounter with statutory provisions similar to those under consideration in this appeal was liable to confuse judges and lawyers causing them to emerge "on the other side dazed, bruised and not entirely certain of their whereabouts". The passage of 17 years, and many more cases struggling with the meaning of the statutory language, has not removed the sense of disorientation. In a competition involving many worthy candidates, Lord Reid's prize remains in place. This is so although, as Rehnquist J noted in Chardon v Fumoro Solo, "[f]ew laws stand in greater need of firmly defined, easily applied rules than does the subject of periods of limitation". This desirable goal has not been attained in Australia. This appeal affords the latest illustration of that fact. In 1986, a law reform commission report was delivered proposing changes to the then template of Australian laws. It suggested a simplified approach to applications for extension of time for commencement of actions. However, amendments were not enacted in Queensland applicable to these proceedings, despite judicial endorsement elsewhere of the need for reform. The result is that, in the present cases, the Queensland courts were obliged to struggle with the complex and obscure statutory language borrowed originally from a deficient English model.(footnotes omitted). [7] A similar comment had been made by the Queensland Court of Appeal in Carlowe v Frigmobile Pty Ltd [1999] QCA 527 at [9]: That the extension provisions are complex and extremely technical and have been a fertile source of litigation has been adversely commented upon by the Queensland Law Reform Commission in their review of the Limitation of Actions Act 1974. [8] In Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton [2001] QCA 335 at [62], I added: The need for law reform is manifest and it has already been the subject of a Queensland Law Reform Commission Report. [9] Nevertheless, the statute has not been amended and continues to be a fertile source of uncertainty and therefore litigation."
The evidence relied upon 6The plaintiff sworn an affidavit on 11 September 2012 (upon which he was briefly cross-examined) and, in addition, relied upon three affidavits of his solicitor sworn on 4 May, 25 June and 11 September 2012. 7The defendant relied upon two affidavits of Stephen John Ferguson, solicitor, sworn on 27 January and 18 May 2012.
The issues for determination 8The plaintiff commenced proceedings within the limitation period. This application relates to new claims in relation to conduct by the police officer, Senior Constable Benjamin Price, on 24 May 2008, and a new claim for a prior assault by this police officer, on 19 April 2008. 9The question to be determined is whether there was a material fact of a decisive character relating to the right of action which was not known to, or within the means of knowledge of the plaintiff, prior to expiry of the limitation period: Marsden at [17]. 10The question of "material fact" is governed by s 30(1)(a) of the Act and the question of what gives the material fact a "decisive character" is governed by s 30(1)(b) of the Act. Whether or not a material fact is of a decisive character is "within the means of knowledge of a person" is governed by s 30(1)(c) of the Act. The parties agreed that this test is subjective, in that it is not a question of "the reasonable man", but the means of knowledge which were reasonably available to the plaintiff (Dick v University of Queensland [2000] 2 Qd R 476 at 486-487; NF v State of Queensland [2005] QCA 110 at [29]). 11These provisions confer jurisdiction on the court to extend a limitation period for no more than a year from the date on which, or by which, the applicant knew or had the means of knowing, a material fact of a decisive character, when that fact was not within its means of knowledge until a date after the commencement of the last year of the ordinary limitation period: Stephenson v Queensland [2004] QCA 483 at [107]. That date is asserted to be 25 May 2012 (plaintiff's outline of submissions, page 2) or alternatively 14 August 2012, when the plaintiff's solicitor received the report of Mr Stephen Dragutinovich, which enabled him to give competent legal advice to the plaintiff within the meaning of s 30(2) of the Act. 12In order to determine whether the plaintiff can satisfy the court that there was a material fact of a decisive character not known to him, or within his means of knowledge, prior to the limitation period expiring, it is necessary for me to consider the factual circumstances, including not only the circumstances of the injuries alleged, but also the criminal proceedings and his subsequent consultation of medical practitioners and, in January 2011, of a solicitor.
The background to this application 13It is not in dispute that the plaintiff was, whilst in police custody, was a witness to a violent and unprovoked assault upon his childhood friend, Mr David Steele on 24 May 2008. The CCTV footage of that assault is annexure AB to the affidavit of Mr Imran Khan of 11 September 2012. Criminal charges were laid against the police officer in question, Senior Constable Benjamin Price. A transcript of the plaintiff's evidence in the criminal proceedings against Price arising from this assault and the plaintiff's statement to police (taken on 1 July 2008) are annexures to the affidavit of Mr Ferguson of 30 January 2012. 14Counsel for the plaintiff described the assault captured on CCTV as being horrific. At the request of the parties, I have viewed the CCTV footage, which lasted approximately 37 minutes. It shows Mr Steele (with the plaintiff being briefly viewed nearby, and then off-camera) being punched in the head, sprayed with water for at least 10 minutes, dragged along the floor, held down and pulled down from the waist continuously over a period of approximately 20 minutes, as well as undergoing what appears to be a body cavity search. Both the plaintiff and Mr Steele had been taken into custody following a complaint that they were seen fighting with each other at a public venue. 15The plaintiff, who in his proposed amendments claims he was also assaulted on this occasion, states in his affidavit that after giving a statement to police investigating this assault (on 1 July 2008), he was so terrified by what he had seen happening to Mr Steele that he left Queensland. He consulted different doctors, but was fearful of disclosing the assault matter to them (paragraphs 51-54 of his affidavit). 16The plaintiff was required to attend court to give evidence in the criminal proceedings against Senior Constable Benjamin Price in about July 2009. He was only required to give evidence about the events which occurred on 24 May 2008. There is no reference to the earlier assault in his statement. 17In the course of oral submissions on 26 September, in response to an inquiry from me, both counsel told me that there was no evidence whatsoever, in the prosecution of Senior Constable Benjamin Price, about any prior incident of the plaintiff and Mr Steele being arrested or assaulted by Senior Constable Benjamin Price on an earlier occasion, or about the other new material the subject of the application for leave. Counsel for both parties assured me that they had checked the transcript of the criminal proceedings, as well as all exhibits. 18The plaintiff does not refer to any such evidence being given in the affidavit he swore for these proceedings. He states (at paragraph 55) that the fact that this prior incident did not form part of these criminal proceedings "reinforced my mind that the most significant event was the one occurring on 24 May 2008". The transcript for what he said at the committal was not put to him in cross-examination. 19The plaintiff's evidence principally described his life since the criminal proceedings in which he gave evidence. Although the plaintiff felt "happy" when he heard that Senior Constable Benjamin Price had been found guilty and sentenced to two years imprisonment, he remained fearful of police and very reluctant to discuss what had happened (paragraph 56). He consulted a solicitor in 11 January 2011 as a result of family pressure following his condition worsening. However, he only discussed the incident of 24 May 2008, as "I thought that was the incident that caused my psychological problems" (paragraph 57). This was in part because it was the subject of the criminal proceedings and in part because it was only after the second incident that he began having nightmares and flashbacks and became nervous. 20The plaintiff commenced having psychological counselling. It did not occur to him to advise either his treating doctors, a medico-legal doctor or the counsel briefed in the matter that there had been an earlier incident involving the same police officer. 21The plaintiff's evidence is that he did not know until he read Mr Simon Curnow's report in early December 2011 that the problems he was having had been diagnosed as post traumatic stress disorder (paragraph 63 of the plaintiff's affidavit). He did not raise with his solicitor and barrister until 25 May 2012 that there was an earlier incident. He did not appreciate until he read the report of Steven Dragutinovich dated 14 August 2012 that the incident on 19 April 2008 may also have contributed to his psychological injuries. In the interim, a notice of motion for leave to amend had been filed on 7 May 2012, in relation to the additional claims for assault during the 24 May 2008 incident. 22This brings me to the circumstances of the plaintiff having in fact attempted to raise the earlier incident involving Price in the course of his cross-examination in the criminal proceedings, in circumstances where his evidence was treated as irrelevant not only by the counsel cross-examining but in re-examination by the crown prosecutor. That evidence is set out in paragraph 28 below. 23While at first blush it may be hard to understand how such important evidence could be overlooked by the plaintiff's own legal advisers, the three affidavits of Mr Khan paint a sad picture of the many requests he has made to Queensland Police for documents relating to the assault since he was first consulted by the plaintiff in January 2011. The plaintiff is still seeking orders for the defendant to answer a subpoena he issued nearly one year ago (see order 3 above). The transcript of evidence of the plaintiff was not provided to the plaintiff's legal advisers until 20 December 2011, many months after Mr Khan first started seeking documents, and when it was provided, it was one of a very large number of documents sent just before Christmas (paragraph 4 of Mr Khan's affidavit of 4 May 2012). Moreover, reading the transcript would only have been the start. There was no date for this earlier incident given in the transcript, and given the nature of the allegations, it was necessary to make further inquiries to ascertain the date, whether the police involved really had included Senior Constable Benjamin Price, and what the others who were present said (plaintiff's additional written submissions, page 2) 24The defendant's representatives had had access to this transcript for some time; transcript was provided to Dr Selwyn Smith in September or October 2011, and he provided a report dated 29 November 2011. His comment on page 2 in relation to "Transcript of Proceedings" does not refer to the April assault; clearly, he did not consider it to be of relevance. All he noted was that "Mr Gluszek reported that he had been stopped by police on and off" (report of 29 November 2011, page 3). 25Neither counsel addressed me in relation to the transcript of the plaintiff's evidence in the criminal proceedings, either in the written outline they asked me to consider, or orally. Although counsel invited me to read the affidavits in the file before hearing this application, I had not appreciated that the affidavit of Mr Ferguson of 30 January, which long predates this application (and is attached to a notice of motion to set aside one of the many subpoenae issued in these proceedings) was to be relied upon, so I did not read it. I accepted the statements from counsel that the criminal proceedings transcript contained no reference to the April incident or indeed anything of relevance to this application, and reserved judgment so that I could read all of the material put before me on 26 September. I realised almost immediately that the information I had been given during the hearing of the application was either incomplete or wrong. 26The question of what a judge should do when neither party has referred to essential evidence was answered by the NSW Court of Appeal in Chouman v Margules (1993) 17 MVR 144. In Chouman, neither the parties nor the trial judge noticed that a police report tendered in the hearing referred to a 18 metres skid mark, The court stated (at [150], per Kirby P) that having admitted the report into evidence, it was "essential" that the trial judge should deal with the matter and disposing of the case before him (see also Whalan v Kogarah Municipal Council [2007] NSWCA 5). 27In accordance with my obligation to draw this material to the attention of both parties (Ford v Nagle [2004] NSWCA 33), I arranged for a scanned copy of the relevant pages of the plaintiff's cross-examination and re-examination to be forwarded to both parties and invited submissions in reply to be provided by the following day. I have received further written submissions from both counsel. Neither sought orders to reopen their case, or to lead further evidence.
The plaintiff's evidence in the criminal proceedings relating to the 24 May assault 28The evidence the plaintiff gave about the first incident was as follows: "When did it come back to you? - ? - I just had a little bit more time, you know, to think about things. Well, quite obviously? - What really happened on that night. But - ? - And because there was a couple of other altercations and occasions with the same arresting officer within a couple of - you know, probably two months. Well - ? - You know, I just - I - I had the - I had to get - you know - Okay. One thing at a time here? - I had to work out exactly what happened on what night, you know? I understand. So one thing at a time? - And I had a lot going on too. Sorry? - I had a lot going on too at that stage in my life and that. All right? - Didn't know where I was living and all that sort of stuff and - Well, let's try to deal with those issues. When did it come back to you that you had seen the punch that you've just told us about? - Probably about - about a month after it happened. Two weeks - two months after it happened. All right? - After the incident occurred. So, what, you were just doing nothing in particular one day and it -? - No, I just remember having a good think about it.
Material fact of a decisive character within the plaintiff's knowledge 31The plaintiff must show that there was a material fact of a decisive character relating to the right of action which was not known to, or within his means of knowledge before the expiry of the limitation period. 32In Marsden, the plaintiff was unaware prior to reading an article in The Australian that injuries she suffered were the result of negligence on the part of her medical practitioner. The plaintiff in those proceedings did not know prior to that date that her injuries were caused by his negligence. In answering the question as to whether the plaintiff had taken all reasonable steps to find out that fact, Atkinson J noted (at [67]) that the plaintiff believed what the defendant told her, that it was her body that was at fault, not the surgery she had undergone. Atkinson J noted that the plaintiff was "very vulnerable psychologically" and that this went some way in explaining the level of trust she gave to the medical practitioner. 33The same is the case here. Based on the response to his attempt to raise this matter in court, the plaintiff had ample reason for believing that the earlier incident about which he had attempted to give evidence, despite it not being in his statement, was irrelevant. The fact that this assault was not referred to in his statement would have reinforced this view. His reluctance to raise the matter in discussions with his doctors or when he first met Mr Khan in January 2012 is understandable in this context. 34Even when Mr Khan did hear about the April 2008 incident, it would have been premature for him to advise the plaintiff to commence proceedings. A claim that there was a prior arrest and assault by the same police officer, against the same persons, but which had not been the subject of criminal charges at the same time as the second assault, would be an extraordinary claim, requiring meticulous investigation. 35I accept the submissions of the plaintiff's solicitor and counsel that the other persons asserted to be witnesses needed to be interviewed, and that further documentation was needed, not least because such inquiries would have been necessary to ascertain the precise date upon which the first incident occurred. In addition, medical evidence as to the impact of this first incident was necessary. This was not obtained until 14 August 2012. 36The importance of a person not only knowing, but taking the advice of, competent persons qualified in the respective fields of medicine, law and other facts was emphasized in Marsden, supra, at [20]: "[20] What gives material facts a "decisive character" is governed by s 30(1)(b) of the Act. That subsection looks to the response of a reasonable person to the knowledge of material facts. Material facts are taken to be of a decisive character if, but only if, a reasonable person knowing those facts, and having taken the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts, would regard those facts as showing: · that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and · that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action." 37Courts have been more liberal in the interpretation of this section where the person bringing the action out of time is a victim of crime rather than a victim of a motor vehicle accident: Tiernan v Tiernan [1993] QSC 110 (approved in Stephenson v Queensland, supra, at [50] and [106]); MCA v Queensland [2011] QSC 298 at [23]. As counsel for the plaintiff pointed out in his oral submissions, there is a significant difference between a plaintiff knowing he has injured his hand in an accident and a victim of crime knowing that he has suffered a psychological injury. Mr Gluszek thought the events the subject of the criminal proceedings were what caused his problems, because this was the main issue in the criminal proceedings, and because it was after those events that he began suffering the symptoms which drove him to see a solicitor in January 2011. 38I note there is no claim of prejudice (Newman v Queensland [2009] QSC 125 at [45]).
Conclusion 39I am satisfied that the plaintiff had shown there were material facts of decisive character relating to the right of action, both on 24 May and 19 April 2008, which were not known to him or within his means of knowledge prior to expiry of the limitation period. 40The extension of time which can be granted is a period of one extra year. The period therefore expired on 19 April 2011, and an extension can be granted so that the period of limitation expires at the end of one year after that date, namely 19 April 2012. The applicant's legal representatives state they were not informed by the plaintiff of the assault on 19 April 2008 until 25 May 2012 (paragraph 5 and 6 of the affidavit of Mr Khan of 25 June 2012) and could not competently give him legal advice until 14 August 2012. I am of the view that 14 August 2012 is the relevant date, and that the orders sought by the plaintiff for an extension of time should reflect that date. 41The statement of claim, in its present form, is infelicitously drafted. The reference to "particulars of negligence" makes no sense, as there are no particulars of negligence provided. Whether the claim is one of negligence as well as assault, or whether this is a poorly pleaded claim for false imprisonment, this should be articulated clearly in the revised pleading, as the plaintiff may be entitled to discovery for claims which are not based on personal injury, which may be a more effective way for the parties to proceed with this action rather than by a series of subpoenae which are not answered for lengthy periods of time. In addition, if there is to be a claim for punitive (and/or aggravated) damages, this should be properly particularised. I have accordingly allowed 28 days for the plaintiff to file and serve the amended pleading. 42The orders sought identify the proposed new pleading as the Third Amended Statement of Claim. In fact it would appear that only one statement of claim has ever been filed. The other documents are drafts. It will lead to confusion if this name for the pleading is adopted, and accordingly I have simply granted the plaintiff leave to file an amended pleading which incorporates these claims. It would be wise for the plaintiff to consider including all matters relied upon in terms of particulars of damages (including but not limited to particulars of aggravated damages) or any cause of action requiring particulars. 43The correct form of the order to make for extension was not the subject of submissions before me. Unlike the orders made in cases such as Marsden, where the whole of the proceedings were commenced after the limitation period and the orders extend time to the date of filing of the statement of claim, this is a case where the proceedings were commenced in time and there is an application for additional claims, to which the limitation period applies, has been granted. The appropriate course is to extend time to the date ordered (namely 28 days from today) for the proposed amendments to be incorporated in the amended pleading. 44I have not been addressed as to the issue of costs and I have granted liberty to apply.
Orders (1)Pursuant to s 31(2) Limitation of Actions Act 1974 (Qld) the limitation period for the actions pleaded in paragraphs 5, 7, 8, 10, 11, 13 and 16 of the document entitled "Third Amended Statement of Claim" be extended to 28 days from today, namely 26 October 2012. (2)The plaintiff be granted leave to file an amended Statement of Claim incorporating the causes of action set out in order 1, including particulars of the causes of action and of the claim for damages (including but not limited to the claim for punitive damages) by the date in order 1 above. (3)Liberty to apply in relation to costs.
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: 02 October 2012
Gluszek
State of Queensland
[2010] QSC 431
[2011] QSC 298
[2009] QSC 125
[2005] QCA 110
[2004] QCA 483
[1993] QSC 110
[1999] QCA 527
(1993) 17 MVR 144