KARAAGAC v GRE INSURANCE LIMITED

Court of Appeal (NSW)|1989-04-26|Before: Meagher JA, Rogers J, Clarke JA

Hope, CLARKE and MEAGHER JJA 26 April 1989 [1989] NSWCA 116

Limitation of actions - application of s52(1) of Limitations Act 1969 - does imprisonment constitute "substantial disability".

Meagher JA In this matter the appellant, who was the plaintiff below, Mr Karaagac, commenced proceedings for a declaration that GRE Insurance Limited, the respondent, was liable to indemnify him under a certain policy of insurance in relation to property of his which was destroyed by a fire on 11 April 1980.

The proceedings were commenced more than 6 years after the date upon which the cause of action first accrued; that is the relevant limitation period, but the plaintiff seeks to rely upon the provisions of s52(1) of the Limitation Act 1969 which provides that where a person is under a disability the running of the limitation period is suspended for the duration of the disability. That disability must be substantial.

In the present case the plaintiff was imprisoned for 2 periods of time. The first was from 30 April 1980 to 30 April 1982 and he was imprisoned a second time from 19 November 1982 to | December 1986. He was not unacquainted with solicitors. He had various solicitors acting for him at different times. The first solicitor he employed was ML Wynn and Co, the second was Messrs Boyd House and Partners, the third was Henry Davis York and the fourth was Helliars.

When he was in prison on the first occasion he seemed to have no difficulty in getting in touch with his solicitors then, either Messrs ML Wynn and Co, or Boyd House and Partners and representatives of both those firms seed to have visited him in prison.

He did institute proceedings against the present respondent which were dismissed under Rogers J in the Commercial List on 23 March 1983. He did nothing to institute further proceedings which he was entitled to do from 23 March 1983 until after he left prison on the second occasion.

There is no doubt that being in prison must, relevantly, constitute an impediment to the conducting of legal proceedings. The relevant question under s11(3) of the Limitation Act is whether the second period of imprisonment constituted a substantial impediment.

The evidence does not disclose why no further or more deliberate attempt was made by the appellant to contact his solicitors who, at that stage were Messrs Henry Davis York and Co. The evidence does disclose that there was no difficulty in him writing letters to them as often as he liked, or ringing them. There is some suggestion that he did not know their telephone number. It is difficult to take that suggestion very seriously when the telephone number is obviously listed in the telephone directory.

At the end of the day one has the position which was summarised by his Honour below:

"The reality of the matter of course is that despite the facilities which were available to him by way of telephonic and written communication with his solicitors, the plaintiff did absolutely nothing between 23 March 1983 and the date of his release to contact his solicitors. The evidence is quite inadequate for me to hold that over the relevant period the plaintiff was substantially impeded in the management of his affairs in relation to the cause of action in respect of the limitation for which the question arises by reason of restraint of his person."

I respectfully agree with his Honour's observations and can find no error in them.

It has been put to us by counsel for the appellant that we could conceivably infer that if he had written to his solicitors during this period, seeking to have his case reinstated, he might have been unsuccessful in his endeavours. I do not see any factual basis which would enable us to draw that inference.

The sad fact is that the silence of the appellant during the relevant period remains simply unexplained and certainly does not allow us to draw any inference that he was substantially impeded in having the matter reinstated. I am therefore of the view that the appeal should be dismissed with costs.

Clarke JA I also agree. I was initially concerned that on 23 March 1983 Rogers J dismissed the appellant's summons on the ground that as he was confined to prison he was unable to comply with the orders of the court. This order suggested to me that there had been some degree of impediment with the management of the litigation created by the term of imprisonment. However, the suspension of the limitation period only occurs during the period of a plaintiff's disability which is defined under s11(3) of the Limitation Act. That section, relevantly, provides that a person is under a disability while he is for a continuous period of 28 days or upwards substantially impeded in the management of his affairs in relation to the cause of action in respect of the limitation period for which the question arises by reason of his lawful restraint.

Mere impediment is not sufficient. In order to establish that he is under a disability he must show that he has been substantially impeded. It was submitted that the appellant had discharged the onus of showing that, by virtue of the fact that it was clear that he was unable to attend at his solicitor's office and press him for action. He was deprived of the right open to litigants who are not imprisoned to exert pressure on his solicitor in person.

The evidence reveals, however, that while he was in prison between November 1982 and December 1986 he made no attempt whatever to speak to his solicitor. This was in marked contra-distinction to his earlier conduct on the occasion of his first term of imprisonment. On that occasion he had much contact with the solicitors he was then instructing.

On this occasion, however, he made no attempt to speak to a solicitor and there has been no evidence adduced which explains why he simply failed to take that action. In these circumstances, while it is clear that the imprisonment operated as an impediment to his management of his affairs it is, in my opinion, not correct to conclude that that impediment was a substantial one.

I would have been disposed to reach a contrary conclusion if he had shown that he had made attempts to reach his solicitor and had been unable to do so because of his imprisonment, but there is simply no evidence to that effect and no evidence that he was impeded in any way in taking appropriate action.

The orders of the court are that the appeal is dismissed with costs.

Counsel for the Appellant: CJ Birch Solicitors for the Appellant: Helliars Counsel for the Respondent: JJ Graves

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