Harlum v State of NSW

Supreme Court of NSW|2006-05-18|Before: Kirby J, Wood J, O'Keefe J

Background. 6 Mr Harlum was born in Mudgee on 22 September 1943. In 1950 his parents moved to Sydney. They purchased a milk bar in Annandale. Mr Harlum went to a local school. After school and at the weekends, he and his brothers worked in the shop. 7 In 1957 Mr Harlum's father died suddenly. His mother had, a few years before, given birth to a baby. The shop had to be sold. Mr Harlum and his brother left school. 8 Mr Harlum found work at Muirs Motors. He began and completed a five year apprenticeship as a motor mechanic. He later studied part-time for the Higher School Certificate, which he obtained. He continued to live with his mother and support her financially. 9 Having completed his apprenticeship, Mr Harlum worked for various motor dealers, including Ron Hodgson Motors. He both sold vehicles and maintained them. In 1975, he married Monica Steele. They had two boys, Lee born in 1977, and Nathan in 1978. By all accounts Mr Harlum was an attentive father who loved his children. 10 The plaintiff changed jobs from time to time, working for different car yards. Sometime before 1985 he experienced difficulties with his marriage. The difficulties were attributable, in part, to a problem with alcohol which he had developed. He separated from his wife, although he remained on good terms with her. He was admitted to the St John of God Hospital, where he received treatment for alcoholism. The treatment was successful. He has to this day refrained from having alcohol and has regularly attended meetings of Alcoholics Anonymous. 11 He later moved to Penrith. He formed a relationship with another woman, Julie, and continued to see his children. He worked hard, usually seven days a week. He said that he enjoyed life. 12 In late 1990 or early 1991, Mr Harlum began working for a caryard owned by Andy Dickson. Through that caryard, he met a person who identified himself as Danny Shakespeare. He bought a number of cars although he failed to make payment in full. Mr Harlum later saw Danny Shakespeare on two occasions in respect of the money which was outstanding.

The Arrest. 13 On 24 July 1991, in the circumstances described, Mr Harlum was arrested. He thereafter remained in custody, bail refused, for approximately 15 months before his acquittal. He did not know Roy Thurgar, the man he was said to have murdered. He had never met Garry Nye, the person jointly charged with the murder of Roy Thurgar and the drug offences. Each charge was apparently based upon accusations made by Danny Shakespeare. Danny Shakespeare had an extensive criminal record. The name he used was an alias. He was a police informant. At the time he provided information to the police, resulting in the arrests of Messrs Harlum and Nye, he was the subject of approximately 30 warrants for his arrest. His account was said to be uncorroborated. 14 Mr Harlum, when arrested, was a man aged 48 years. As mentioned, he was a qualified mechanic. He had been in continuous employment since leaving school. He was a person of good character. He had no criminal convictions. 15 Throughout the period of his incarceration, awaiting trial, Mr Harlum continued to receive visits from his former wife and children, as well as family members, whilst in custody. He lost approximately 20 kilograms in weight, which he has never put back on. He said this: (Aff: 20.12.04) "41. One of the hardest things I had to deal with from the time I was in gaol was the fact that I could not see my boys on a daily basis and be part of their development. I felt depressed and during this time I didn't feel like seeing some people of occasions."

Following the Trial. 16 Two weeks after the trial, Mr Harlum telephoned Mr Terracini SC, who had appeared for him. He expressed his gratitude. Mr Terracini provided a statement. He recalled his conversation with Mr Harlum in these terms: (S'mt 9.12.04) "14. ... During that telephone conversation Mr Harlum said words to the effect: 'I can't thank you enough for what you did for me' I said words to the effect: 'You may bring proceedings against the police for damages as a result of your wrongful arrest and false imprisonment. Legal Aid doesn't do this type of work so you should go and see a private solicitor.' John Harlum said words to the effect: 'I have just been in gaol. I have no money. If Legal Aid won't do it how do I do it?' 17 Mr Harlum was asked about that conversation. The cross examination included the following: (T13) "Q. You would accept, wouldn't you, Mr Harlum, that if you had money at that time, you would have taken legal advice with a view to pursuing a claim for damages at that time? A. I would say I probably would have, yes. Q. Because, in your mind - - A. Depending on how much money it would take - -" 18 After the trial, Mr Harlum went to live with his former wife, Monica, and his two sons. However, a number of disturbing things occurred which he attributed to the police. He was driving in Blacktown when he was stopped by five unmarked police cars. A number of policemen thereupon identified themselves as detectives. His car was "stripped" and he was searched. No explanation was given. No charges were laid. 19 Later he received a phone call at his wife's house. It was an anonymous call. A male voice said: "If you say or do anything, your family will be killed." 20 He believed that the caller was a policeman. To appreciate why he formed that belief, it is necessary to say something about the trial. Roy Thurgar went to the Independent Commission Against Corruption before his murder. He expressed fears for his safety. Mr Terracini, in his statement, provided the following summary of allegations put in the course of Mr Harlum's defence: (S'mt 9.12.04) "11. There was evidence that suggested during the trial that there was a conspiracy between various police officers and police witnesses to fabricate evidence and allege that Dallas John Harlum and Garry Nye were involved in the murder of Roy Thurgar." 21 After these threats, Mr Harlum abruptly left his wife's home. He gave no explanation to her or the children. He went to his brother's home. He said that he was again threatened. He then went to his cousin's home. Again he was threatened. Each time the threats were made by an anonymous male caller. 22 Mr Harlum therefore determined, in approximately mid 1993, that he would leave Sydney and live in the country. He told no-one where he was going or why he was going. He made contact with Mr Terracini some time after he left and provided him with a telephone number. At the same time he reported the threats to Mr Terracini, which Mr Terracini confirmed in his statement. 23 Mr Harlum said this: (Aff: 20.12.04) "52. I felt very down and alone. It was like no one could help me. I didn't trust any policeman. I believed that if I stayed in Sydney I would be putting my family including my ex-wife and boys, brother and his family and my cousins at risk. The person who had been ringing me had found me at all of the places I had stayed since I had been acquitted. I was feeling down but it was not until I saw Dr Westmore that I realised how these events had affected me. " 24 Mr Harlum went to the home of a friend in Urana, near Albury. The friend owned a deer farm which Mr Harlum then managed. From time to time his friend would stay at the farm. Mr Harlum used it as his home. He also purchased damaged motor vehicles, which he repaired and resold. Shortly after his arrival at the farm, he again received an anonymous threat by telephone. 25 An annexure to an affidavit filed on behalf of the defendant recorded that, on 27 April 1995, Mr Harlum attended the Urana Police Station to pay certain outstanding warrants against the owner of the deer farm ($95). The Minute prepared by the Police Officer included the following account of his visit: "(Harlum) also has boasted to me about suing the NSW Police Service over a wrongful arrest etc after he served 2 years for a gangland murder. (Mr Harlum) also alleges that he knows who committed the crime." 26 About this time, Mr Harlum first made contact with his family. He telephoned his former wife. He arranged for his sons to visit. They did so once or twice during the time he was away from Sydney. He never provided them with an explanation, or a complete explanation, for his departure. 27 The Royal Commission into the New South Wales Police Service ("the Wood Royal Commission") began in October 1994. Commission officers indicated that they wished to interview Mr Harlum in connection with his dealings with the police from the Regional Crime Squad South involved in his arrest. Mr Terracini spoke to Mr Harlum. He agreed to co-operate. However, he would not come to Sydney. Arrangements were made for the interview to take place in Wagga Wagga on 12 October 1995. Mr Terracini was present. Mr Terracini described the way in which Mr Harlum presented in these words: (S'mt 9.12.04) "21. From information given to me by Mr Harlum and his actions and presentation I believe that he believed there was a real risk of serious harm and that he was very scared." 28 Mr Harlum said that, following this interview, he became more concerned. It was plain that a determined effort was being made to investigate the Police Service. He assumed that the police involved in his case may be targeted. He said this: (Aff: 20.12.04) "63. When I was away I tried to keep to myself. There was not a day that did not go by that I did not think of my boys or how I could become involved in this whole mess. I knew I had changed. I felt different but even despite all of the police asking me questions I never really felt that things had changed to make it safe for me to go back to Sydney. It was like I always kept thinking about the hopelessness of my situation. Here I am stuck down here. If I do anything to go back I risk putting people's lives at risk." 29 On 22 November 1996, a Search Warrant was executed upon the deer farm. The police report of the search included the following description of what was found: (Aff P R Kaufmann 25.2.05; annex C) "... a search of his bedroom was conducted. Found leaning next to the bedroom door was a 12 gauge Bentley shotgun with four live rounds in the magazine and one in the breach. In the cupboard under a pile of blankets was located a .22 calibre Bruno sawn off rifle with a silencer attached. Under (Mr Harlum's) bed was located a .223 calibre Ruger rifle with a full magazine however, not attached to the rifle." 30 Mr Harlum did not have a licence for these firearms. He was charged with a number of firearm offences. 31 In May 1997, Justice Wood presented his final report in respect of the Royal Commission. The phone calls ceased at or about this time. 32 On 16 July 1997, the firearms charges were dealt with by the Lockhart Local Court. Mr Harlum pleaded guilty. He was fined and ordered to complete 200 hours community service. The newspaper report of the hearing was in these terms: (Aff P R Kaufmann 25.2.05; annex E) " URANA MAN FEARFUL OF POLICE DEATH THREATS. A 54 year old man has told a Lockhart court he kept a sawn-off rifle for his own protection after receiving death threats from the police. ..." 33 On 17 September 1997 Mr Harlum was at the deer farm. He heard three shotgun blasts. He also heard male voices. He reported the incident to the police. He assumed it related to the owner of the deer farm, who was involved in Family Court proceedings. 34 On 2 October 1997, Inspector Day of the Albury Police interviewed Mr Harlum concerning the allegation appearing in the newspaper as a result of the firearms charges. Inspector Day made a Minute of this interview. It included the following: (Aff P R Kaufmann 25.2.05; annex D) "He stated that he served two years in gaol on remand for this matter and never received any compensation, something that he is now considering claiming from the State Government. As a result of his time in gaol he stated that he is now broke having lost his second hand car yard business in Sydney. He is currently receiving unemployment benefits and resides with another male well known to Police, David Cottrell, at the address mentioned. Those premises belong to Cottrell. Mr Harlum has continually claimed his innocence stating that he was 'set up' by another person, Danny Shakespeare, who had forty one charges against him dropped by the DPP and received $50,000 for giving evidence against him and Nye. He alleges that the arresting police, Detectives Poppewell and Gordon, formerly of the South Region Major Crime Squad, had worked in cahoots with Shakespeare." 35 In early 1998 or thereabouts, Mr Harlum left the deer farm and took lodgings in Albury. He began working with Max Charles Motors of Albury as a salesman. He acknowledge in cross examination that he was able to carry out his duties (T23). He could handle customers and clinch a deal. He worked on a commission basis. He later left that job and worked on his own account, repairing and selling cars. That is not to say that Mr Harlum was completely normal. He gave the following evidence, which I accept: (T26/7) "Q. You don't claim, do you, there was any mental condition that was getting in the way of your ordinary living when you were living in Albury? A. Yes, the mental condition of being locked up for 16 months for something I had nothing to do with, it was a nightmare, and still is and always will be. A man who has never been locked up for anything in his life, not even a parking ticket, and locked up for murder and nobody will ever understand, and people wonder why I am an angry and bitter person. I was a happy person and now I am one of the most bitter persons in the world. Q. And that is because you say you dwell upon your arrest and imprisonment? A. I don't dwell on it, it's just there in my mind 24 hours a day; that those people could actually do that to me. It's like somebody pulled my name out of a telephone book, all over a piece of garbage called Danny Shakespeare. Q. But, you were capable of working in Albury? A. Yes. Sorry for the outburst. Q. You are capable of working, subject to the changes of living an ordinary life? A. Yes, I live all right."

36 Whilst living in Albury, Mr Harlum was again approached by the Police Service. They sought his assistance in respect of the unsolved murder of Roy Thurgar. He met Det Sgt Nolan in Albury on 5 and 30 September 1998. He was interviewed by Sgt Sipos and Det Snr Const Hallett at Albury on 12 February 1999. In each case he answered the questions asked of him. He did not mention having received threatening phone calls. However, on this application, there was no challenge to the fact that he had received threats. 37 Ultimately, Mr Harlum decided to return to Sydney. He described his state of mind in these terms: (Aff: 20.12.04) "64. I recall that in 1999 I decided that enough was enough. It had been so long. [My] boys had grown up. If I stayed any longer away I would miss out completely on their lives. I knew the boys had it tough without their father and whilst I always believed their mother had done her best there was so much time that I had to make up." 38 He came back to Sydney shortly before Christmas 1999. He spent Christmas with his former wife and two sons. Upon his return, he again met Mr Garry Nye. Mr Nye told him about the action he had commenced against the police. He encouraged Mr Harlum to see the solicitors who were acting for him, Messrs Carroll and O'Dea. Mr Harlum did so, either late in 1999 or early 2000. As mentioned, the Statement of Claim was issued by Messrs Carroll and O'Dea on 2 January 2002. The Limitation Act. 39 The application is brought under s52 of the Act which, relevantly, is in these terms: "52 Disability (1) ... 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." 40 The definition section includes the following definition of "disability": " s11(3) For the purposes of this Act a person is under a disability: (a) ... (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, ..." 41 Here the plaintiff asserts that, for a continuous period ending in late December 1999, he was substantially impeded in the management of his affairs in relation to the causes of action which he now seeks to pursue, by reason of a disease or an impairment of his mental condition. 42 What are the relevant limitation periods, absent disability? The cause of action for wrongful arrest and false imprisonment accrues upon arrest. Here, subject to disability, time began to run from 24 July 1991. There was argument as to the limitation period. It was said on behalf of the defendant that the limitation period was defined by s18A of the Act, which deals with "personal injury". The cause of action which the plaintiff wishes to pursue was, according to the defendant, a cause of action involving a breach of duty within the meaning of s18A(1). A breach of duty, in the context of an action for personal injury, includes trespass to the person. Wrongful arrest and false imprisonment was, on this argument, a species of trespass to the person. If that were right, the limitation period is three years. If there were no disability, it expired on 23 July 1994. 43 The plaintiff argued, however, that wrongful arrest and false imprisonment is not an action for personal injury alleging a breach of duty, as defined. Rather, it is a cause of action in tort in respect of which the limitation period is defined by s14(1)(b) as six years (Olive & Anor v Johnstone [2006] NSWCA 21 per Santow JA (Handley and Tobias JJA agreeing) at para 11). The cause of action expired on 23 July 1997, subject to disability. 44 In my view, the cause of action is in tort, rather than a breach of duty as defined by s18A(1) of the Act. However, for the reasons set out below, the resolution of this issue is immaterial. 45 The cause of action in malicious prosecution does not accrue until the plaintiff has been acquitted of the charges which he alleges were maliciously brought against him. Mr Harlum was acquitted on 10 November 1992. The limitation period is six years (s14(1)(b)). Subject to disability, the cause of action expired on 9 November 1998. 46 In Kotulski v Attard [1981] 1 NSWLR 115, Slattery J considered s52 of the Limitation Act and the definition of "disability". The plaintiff was a widow who sought to recover damages under the Compensation to Relatives Act 1897. Her husband died in a motor vehicle accident. She gave evidence that she spoke to a solicitor by telephone after the accident. However, she said that she could not follow what he said. For a period she felt so overwhelmed by grief that she found it impossible to talk about her husband's death or the accident. The statement of claim was issued shortly after the expiration of the limitation period. 47 Slattery J said this, concerning the definition of "disability": (at 117/8) "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." 48 His Honour then referred to comparable legislation in England, which used the term "unsound mind". He said this: (at 118) "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 p383 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 (the) 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." 49 These comments have been accepted as the test (State of New South Wales v Bennie [2005] NSWCA 172, per Campbell AJA (Giles and Bryson JJA agreeing) at paras 38/39; Olive & Anor v Johnstone (supra) Santow JA at para 61).

Did Mr Harlum have a Disability? 50 Mr Temby QC, for the defendant, submitted that the plaintiff was obliged to establish, as a matter of probability, the following four elements taken from the definition of disability: · First, that the plaintiff was, for a period, substantially impeded. · Secondly, that the impediment was in the management of his affairs in relation to the cause of action. · Thirdly, by reason of (that is, a causal connection). · Fourthly, any disease or impairment of his mental condition. 51 Here, the defendant argued he had not done so. His response to the threats, in leaving Sydney, did not suggest mental impairment. It was a perfectly rational response to a perceived threat. Even were it accepted that there was disability, and that he was functioning at sub-optimal level at the time he left Sydney, by reason of depression or other mental illness (as suggested by medical evidence to which reference will be made shortly), the only reasons he has provided for not commencing proceedings were, first, a lack of funds due to the unavailability of Legal Aid, and, secondly, threats made against him and his family. 52 A lack of funds is not, relevantly, a disability. As to the threats, Mr Harlum acknowledged, according to the defendant, that they ended after the presentation by Justice Wood of the final report of The Royal Commission into The New South Wales Police Service. That report was presented in May 1997. Moreover, by early 1998, Mr Harlum had left the deer farm. He was living openly in Albury, using his own name. He worked as a car salesman. Later he worked on his own account, repairing and restoring damaged vehicles. He was dealing with the public and doing so with confidence and competence. Further, he repeatedly spoke during this period to the Police Service about the circumstances of his arrest and the charges levelled against him. He lived in a large country town where there were many solicitors. He had access to the telephone and to Mr Terracini SC. Hence, the defendant argued, even if it be assumed that he was under a disability when he left Sydney, it could not be said that he was "substantially impeded in the management of his affairs by reason of impairment through a mental condition" after May 1997 (when the threats ceased), or, at the latest, January 1998 (once he moved from the deer farm to the township of Albury). The statement of claim had not been issued within three years thereafter (cf 2.1.02). On any view, according to the defendant, he was out of time.

The Medical Evidence. 53 Mr Andrews of counsel for the plaintiff responded to these arguments by pointing to the medical evidence. It established, according to counsel, that Mr Harlum remained disabled until his return to Sydney shortly before Christmas 1999. He was suffering from depression and/or post traumatic disorder which substantially impeded him in the management of his affairs in relation to his causes of action. His impairment was the consequence of a mental condition. 54 Mr Harlum was examined by three psychiatrists. Doctors Westmore and Gertler saw him at the request of his solicitors and Dr Champion at the request of the defendant. Dr Westmore first examined Mr Harlum on 19 February 2002. Referring to his arrest, Mr Harlum told Dr Westmore the following: (Report 25.2.02 p1) "I choose to forget most of it. I was a very happy and contented man and now I am a very angry and bitter person." 55 He added, speaking of his work as a salesman: (p3) "'I've turned into a very angry and bitter person. I don't talk to customers, I'd abuse them, and I can't do it.' I asked him was he stating he was short with people and he said, 'Oh yeah, I don't go anywhere near where there are crowds, I've got to get out of there.'" 56 He presented as an extremely intense, unsmiling man, who appeared to be angry and bitter. Dr Westmore said this: (p5) "... from a psychiatric perspective he suffers from a significant depressive condition which requires moderate to urgent psychiatric intervention." 57 Dr Westmore added: (p6) "At a clinical level there is no evidence of organic cognitive impairment affecting Mr Harlum although depression can affect a person's capacity to attend and concentrate and their memory." 58 Dr Westmore saw Mr Harlum again on 1.3.05. He reaffirmed many of his previous observations. Specifically, Mr Harlum had a depressive illness, having had a major depressive episode. Dr Westmore also thought that he had symptoms consistent with Post Traumatic Stress Disorder. 59 Dr Westmore was asked to provide an opinion as to whether Mr Harlum had "a disability" as defined by s11(3)(b) of the Limitation Act. Having set out that definition, Dr Westmore said this: (Report 4.3.06, p5) "I believe Mr Harlum falls within this definition. He reports that after he was released from custody he received numerous threatening phone calls. He reports he became fearful for himself but more particularly for the life and well being of his immediate family and extended family. He left Sydney because of these fears and essentially he went into hiding. On the balance of probability during this period Mr Harlum was severely incapacitated by feelings of fear, anxiety, apprehension and probably depression. These emotions are likely to have substantially impeded his capacity to consider and/or to proceed with actions against the police or other authorities whom he believes may have harmed him following his initial arrest. There is clinical and historical evidence to indicate that this man continues to be psychiatrically disturbed and that he is functioning below his premorbid potential. I would be strongly recommending that he consider seeking appropriate psychiatric and/or psychological care." 60 Counsel for the defendant drew attention to Dr Westmore's reference to Mr Harlum going "into hiding". It was, he argued, reasonable to characterise Mr Harlum's life on the deer farm as being "in hiding". However, he left the deer farm in early 1998 and began living in Albury. Far from supporting the plaintiff's case, Dr Westmore's view, according to the defendant, suggested that the plaintiff's disablement, in terms of a mental condition causing substantial impairment, ended in early 1998. 61 Dr Robert Gertler examined Mr Harlum on 20 February 2002. He diagnosed Chronic Post Traumatic Stress Disorder, developed as a result of his arrest and imprisonment. Dr Gertler said this: (Report 21.2.02, p4) "In answer to your second question, Mr Harlum was subjected to a prolonged period of extreme stress when he was imprisoned during 1991-92. Not only did he know that he was innocent of the murder of which he had been accused, but he was forced to remain imprisoned when requests for bail were refused; as a result he was subjected to the deprivations of prison life. Mr Harlum has in my opinion, developed symptoms of a chronic post traumatic stress disorder. These include sleep disturbance with nightmares related to his imprisonment, hypervigilance and a fear of being in crowds, constant rumination bout the arrest and his imprisonment, anhedonia and emotional and social withdrawal. He is also chronically depressed with significant weight loss." 62 Dr Champion examined Mr Harlum on 22 February 2005. He obtained a detailed history. His conclusion was expressed in these terms: (Report 13.10.05, p10/11) "83. From the history provided Mr Harlum may have suffered with some disability from a mild to moderate Adjustment Disorder with anxious and depressed mood in relation to his period of imprisonment at which time the stressors of imprisonment itself and the threat of the charges against him existed. This is consistent with the history he provides. He had been acquitted in 1992. Following that and again consistent with the history he provides, there would have been significant improvement in any Adjustment Disorder however this may have been exacerbated again on the basis of the various telephone threats he describes over the next several years until his return to Sydney. It appears that he had been away from Sydney for about six years between 1994 and 1999. I would regard 1999 as a time when any Adjustment Disorder would most likely have been totally resolved." 63 Dr Champion was also asked to express a view on the question of disablement under the Limitation Act. At the beginning of his report, he identified the issue which he would address in these terms: (p1) "In relation to this you have set out Section 11(3) of the Limitation Act of 1969 and indicated that determination by the Court on the basis of probabilities will be determined by whether Mr Harlum was incapable of managing his affairs in relation to the cause of the action. This requires consideration of his capacity against that of a reasonable person without any impairment and you have also indicated that a reasonable person with impairment is held to [be] a person who is '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.'" 64 At the end of his report, he expressed the following view: (p11) "84. Whilst there may have been some disability from the Adjustment Disorder with anxious and depressed mood whilst living and working at Urana, I do not believe that this would have constituted a disorder which would cause Mr Harlum to be unable to reason normally about the matters relevant to the potential cause of action, to understand and consider advice or to give instructions about any actions. Consistent with this therefore, it is my opinion that Mr Harlum has not suffered from impairment in relation to the information you have provided with regard to the Limitation Act of 1969." 65 Counsel for the plaintiff drew attention to the fact that Dr Champion, in stating the test, set the bar too high. He considered whether Mr Harlum was "incapable of managing his affairs", whereas s11(3)(b) required the Court to also consider whether, as an alternative, he was "substantially impeded in the management of his affairs".

Conclusion. 66 There was no challenge to the account provided by Mr Harlum as to his ordeal. The challenge was to the effects of that ordeal and whether he was disabled by reason of it, or disabled for as long as he claimed. 67 It is worth reflecting upon the nature of Mr Harlum's ordeal. The terror of a person of good character being arrested and wrongly accused of murder and serious drug offences is almost unimaginable. It is the stuff of nightmares and television drama. Mr Harlum was plucked from his suburban life and incarcerated for 15 months. He was forced to defend himself against accusations which were baseless. It is unsurprising that such an ordeal should have taken a toll. 68 The torment, however, did not end with Mr Harlum's acquittal. In the six months that followed, he was harassed by the police, repeatedly threatened, presumably by the police, such that he felt forced to move from one place to another. 69 It is instructive to ask: how would you expect a rational person, who was not disabled, to behave once their ordeal came to an end? First, you would expect them to immediately resume their relationships with their children, that being an important aspect of their life before the ordeal began, and to maintain such relationships. Secondly, you would expect them to seek justice, that is, to take steps to ensure that those responsible for the ordeal were held accountable and that just compensation was paid. 70 Mr Harlum did neither of these things. He left his sons within a short time and without explanation. He did not seek justice. Instead, after a period of six months, moving from one place to another, he took sanctuary at a deer farm in the country, seeking anonymity. There can be no doubt that he was in fear, as the arsenal of weapons found on 22 November 1996 demonstrated. There is also no doubt that the injustice still rankled. He was willing to speak to police investigating on behalf of the Royal Commission in October 1995, although his participation in that interview served to increase his fears. I accept that, certainly until he left the deer farm in early 1998, Mr Harlum was disabled, as defined by the Act. The impairment arose from his mental condition, and substantially impeded him in the management of his affairs in relation to his causes of action. I believe, as a matter of probability, that he could not, at that stage, make a rational judgment or exercise the will to seek advice to address the great wrong that had been done to him. 71 Moving to Albury, and working as a car salesman, were important steps in his recovery. Nonetheless, as a matter of probability, I believe that he remained significantly disabled. He described himself as reacting angrily to customers. The life he led was far from normal. It was very different from that which he enjoyed before his arrest. Even when he had left the deer farm and was living in Albury, I believe he was still in hiding. He did not seek a permanent reunion with his children who remained in Sydney. He had seen them only twice in the six and a half years that he was away. I accept that before his return to Sydney, he was, as a matter of probability, disabled such that he was unable to do what was manifestly in his interests, namely, take legal advice and ultimately legal action against those responsible. 72 I accept the evidence of Doctors Westmore and Gertler. I prefer the opinion of Dr Westmore to that of Dr Champion. I accept the submission by counsel for the plaintiff that Dr Champion's opinion does not address each limb of the definition of s11(3)(b). He does not, in terms, address the issue as to whether Mr Harlum was substantially impeded in the management of his affairs, in relation to his cause of action by reason of impairment through mental condition. 73 I find as a probability that Mr Harlum was disabled in terms of s11(3)(6) until 1 January 2000. The statement of claim issued on 2 January 2002 was within time. 74 Nonetheless, it must be acknowledged that the plaintiff's legal action, when the statement of claim was issued, appeared (absent disablement) to be out of time. It was not unreasonable that the defendant should have put the plaintiff to proof of disablement. I believe that the appropriate order therefore, in terms of costs, is that the costs should be plaintiff's costs in the cause.

Orders. 75 I therefore make the following findings and orders:

The plaintiff suffered from a disability such that the causes of action are not statute barred.

The costs should be plaintiff's costs in the cause. **********

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.

CITATION : Harlum v State of NSW [2006] NSWSC 443

Olive & Anor v Johnstone [2006] NSWCA 21 CASES CITED : Kotulski v Attard [1981] 1 NSWLR 115 State of New South Wales v Bennie [2005] NSWCA 172

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Cases Cited (3)

Cited By (1)