[2016] HCA 37
Tepko Pty Limited v Water Board (2001) 206 CLR 1
[2001] HCA 19
Wardley Australia Limited v State of Western Australia (1992)175 CLR 514
Source
Original judgment source is linked above.
Catchwords
[2016] HCA 37
Tepko Pty Limited v Water Board (2001) 206 CLR 1[2001] HCA 19
Wardley Australia Limited v State of Western Australia (1992)175 CLR 514
Judgment (5 paragraphs)
[1]
Judgment
JOHNSON J: By Statement of Claim filed on 9 September 2015, the Plaintiff, Andrew Graham Jones, claims damages from the Defendant, the State of New South Wales, arising from the Plaintiff's service as a police officer between 1987 and 2002.
Jones v State of New South Wales [2017] NSWSC 1601 | Case summary | Zoe
By Notice of Motion filed on 16 August 2017, the Defendant sought orders intended to bring to a head for separate and early determination, the Plaintiff's claim for orders under the Limitation Act 1969 extending the limitation period applicable to his cause of action. The Notice of Motion sought, alternatively, a stay under s.67 Civil Procedure Act 2005 until the Plaintiff was granted any necessary order extending the limitation period or an order under Rule 28.2 Uniform Civil Procedure Rules 2005 ("UCPR") that the question whether the limitation period in respect of the Plaintiff's claim had expired be decided separately and before the substantive hearing of the proceedings.
The Statement of Claim recited a series of what were said to be traumatic incidents between 1987 and 1998 which founded the Plaintiff's cause of action against the Defendant. Put shortly, the Plaintiff alleges that he suffers from a psychological/psychiatric condition arising from the Defendant's alleged failure to provide a safe system of work. Paragraph 8 of the Statement of Claim asserts that the Plaintiff first became aware that he had suffered psychological and/or psychiatric injury as a result of an alleged breach of duty of care of the Defendant in 2015. It may be taken that this paragraph is intended to address the limitation issue. In paragraph 9(d) of the Statement of Claim, the Plaintiff claims an extension of time pursuant to unspecified provisions in the Limitation Act 1969 and/or the Workers Compensation Act 1987.
By its Defence on 22 April 2016, the Defendant asserts that the proceedings are statute barred by operation of the provisions of the Limitation Act 1969 (paragraph 11).
The Plaintiff has not filed a Reply nor has he brought by Notice of Motion an application for an extension of any limitation period applicable to him.
Annexures to the affidavit of Rebecca Whittle sworn 16 August 2017 (filed in support of the Notice of Motion) reveal the following correspondence. By letter dated 21 November 2016, the Defendant's solicitors sought further and better particulars of the Plaintiff's claim that he was entitled to an extension of any limitation period. A Reply dated 28 November 2016 from the Plaintiff's solicitors asserted that:
"The statement of claim is maintainable due to the fact the plaintiff brings an application to extend time within the statement of claim. That application is bought pursuant to either section 60G(2), section 60C, section 60D and/or section 50C and section 50D. Also, depending on the nature of the defence which the Defendant intends to maintain, it is maintainable pursuant to an application under section 151D of the Workers Compensation Act."
By further letter dated 1 August 2017, the Defendant's solicitors contended that it was for the Plaintiff to bring, by way of Notice of Motion, an application for extension of any limitation period. In a response dated 2 August 2017, the Plaintiff's solicitors repeated their earlier statement that the extension of time application was to be heard at the time of trial. The letter continued that the Plaintiff would oppose the limitation period being determined as a separate question and that any Notice of Motion to be filed by the Defendant seeking such a course would be opposed.
In addition to the affidavit of Ms Whittle, the Defendant relied upon affidavits of Andrea Carnuccio sworn 29 September 2017 and 1 November 2017. These affidavits raise areas of suggested prejudice which it was said the Defendant would suffer having regard to the passage of time. Counsel for the parties agreed that this evidence should be approached by the Court upon the basis that it indicates there would be a contest on issues of prejudice on an application for an extension of time. It was not for the Court to consider this material for the purpose of making any finding concerning prejudice. I have approached the evidence contained in the affidavits of Ms Carnuccio in this way, noting that it points to areas of claimed prejudice by the Defendant which would be contested by the Plaintiff on any extension application.
[2]
Issues for Determination
The present Notice of Motion was heard together with that filed by the Defendant in Johnson v State of New South Wales [2017] NSWSC 1591. Those proceedings raise similar issues to the present case and the parties are represented by the same counsel and solicitors. For the purpose of the hearing of the present Notice of Motion, it was sensible that the two applications by the Defendant be heard together.
The positions adopted by the parties at the hearing of the Notice of Motion on 21 November 2017 were altered somewhat to those which had been taken in written submissions filed prior to the hearing.
The terms of the Defendant's Notice of Motion were outlined at [2] above.
In written submissions filed before the hearing on 21 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.
At the hearing of the Notice of Motion on 21 November 2017, 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.
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.
[3]
Some Legal Principles
In Johnson v State of New South Wales at [9]-[18], I set out a number of principles which are to be taken into account as well on the present application. I will not repeat them in this judgment.
To the extent that the present Plaintiff does not appear to rely upon s.58(2) Limitation Act 1969 (see [6] above), what was said in Johnson v State of New South Wales at [19] may not have any application to this case. However, the present Plaintiff does seek to rely upon s.60C Limitation Act 1969 in relation to which it has been said that the "just and reasonable" test in that provision requires a plaintiff to show that he has a viable cause of action: Yu v Speirs [2001] NSWCA 373.
[4]
The Present Case
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.
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 at [21], a disability issue lends itself to the use of the separate determination procedure in Rule 28.2 UCPR.
The Plaintiff's Statement of Claim refers to his service as a police officer between 1987 and his discharge in February 2002 and recites what are said to be traumatic incidents between 1987 and 1998 which are said to ground his claim for damages. This range of dates may serve to explain the generalised claim for an extension of time in paragraph 9(d) of the Statement of Claim with no reference to any specific provision in either statute. The particulars provided on 28 November 2016 (see [6] above) list various provisions in the Limitation Act 1969. This list provides no real assistance to the Plaintiff on the present application. 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.
As in Johnson v State of New South Wales at [22], 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 (2016) 258 CLR 134; [2016] HCA 37 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.
To the extent that the Plaintiff relies upon Wardley Australia Limited v State of Western Australia (1992)175 CLR 514; [1992] HCA 55 at 533 and Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19 at 55 [168]-[169], 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.
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 13 years after the Plaintiff ceased to be as a police officer after medical discharge, by reference to events extending back many years before then, the orderly progress of the proceedings requires that the Plaintiff identify 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.
In circumstances where the proceedings have already been on foot in this Court for two years and two months, I am satisfied that this is a reasonable way forward to progress the litigation in the manner which will facilitate the just, quick and cheap resolution of the real issues in the proceedings.
[Counsel addressed on the appropriate orders to be made]
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 16 August 2017 is adjourned to 5 July 2018.
(7) The costs of the Notice of Motion heard on 21 November 2017 are reserved.
(8) Liberty to apply on three days' notice.
[5]
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Decision last updated: 22 November 2017