Richards v State of Victoria [2001] VSC 52

Supreme Court of Victoria|2001-02-23|Before: Gillard J

This is the return of a summons in a proceeding instituted by originating motion by the plaintiff seeking an order that the period within which he could bring a proceeding against two police officers be extended.

In another proceeding, being 8060 of 1999, the plaintiff, Barry Richards, has brought claims against the State of Victoria and 11 named policemen. He issued his proceedings on 24 December 1999.

On 6 September 2000, Master Wheeler gave him leave to join the thirteenth and fourteenth defendants, Police Officer Robinson and Detective Greig. Counsel for the State of Victoria objected to the joinder at the time on the ground that the proposed claims were statute barred.

The Master granted leave which included leave to deliver an amended statement of claim on the basis that Mr Richards was proposing to bring an application pursuant to s.23A of the Limitation of Actions Act 1958. Unlike the previous legislation it is possible to bring the application after the issue of the proceeding. See s.23A(4).

In the amended statement of claim pp.13 and 14, the plaintiff has pleaded the allegations he makes against the two joined defendants. He alleges against Police Officer Robinson that on 25 November 1991 he assaulted the plaintiff when the police raided his home in Altona. It is said that he assaulted him by kicking and stomping on his head. He also asserts that the search occurred on a falsely obtained search warrant.

Against Detective Greig the allegations are that he also attended the raid on 25 November 1991, falsely obtained a search warrant and terrorised the plaintiff by making threats and motions of physical harm.

The only material in support of the summons is an affidavit by the plaintiff sworn on 14 February of this year before a Justice of the Peace. That affidavit sets out a history involving the plaintiff's health commencing in the year 1987 and refers to consultations in 1987 with a doctor and a psychologist and also treatment by a surgeon.

The affidavit discloses treatment by a psychiatrist, Dr Barr, in November 1991, and also there is a reference to another psychiatrist, Dr Veeland, in early 1995, being consulted. The affidavit does not address questions such as delay, the nature of injury suffered and a variety of other relevant matters that are invariably placed before the court on an application such as this.

In addition, by agreement between the parties, Mr Richards placed before the court what appears to be an exhibit to an earlier affidavit sworn 20 July last year, which reproduces the allegations made in the amended statement of claim involving Police Officer Robinson and Detective Greig. There is no affidavit material supporting what in fact occurred on the occasion of the raid.

The defendants have not filed any answering material and have submitted that, on the material before the court, the court could not possibly extend time.

There is no doubt that an onus is placed upon the plaintiff to establish that it would be just and reasonable in the circumstances to extend the period of time, and that, in my view, is a heavy onus. As the High Court has pointed out, there has to be an end to litigation, and one of the objects of the Limitations of Actions Act 1958 is to bring to an end litigation and potential litigation after a period of time. See Brisbane South Regional Health Authority v. Taylor [1996] HCA 25; (1996) 70 A.L.J.R. 866. So there is a fairly heavy onus resting upon Mr Richards to overcome what is a prima facie position, namely, that the causes of action or alleged causes of action against these two police officers have expired by effluxion of time.

Section 23A(3) requires the court to take into account a number of matters and, without in any way derogating from relevant circumstances, sets out in some six paragraphs relevant matters.

In my view, the plaintiff's material is hopelessly defective and does not address the matters in sub-s.(3)(a), (c), (e) and (f). During the course of submissions Mr Richards submitted that in his opinion he had satisfied all these provisions. I did refer him to these various paragraphs of sub-s.(3) and he sought to give evidence from the Bar table, but the fact is that this material should be on oath before the court. I do not have any evidence on oath of the reasons for the delay on the part of the plaintiff, which is a matter that is relevant under sub-s.(3)(a). I have no evidence in relation to matters raised in paragraph (c) of sub-s.(3), nor do I have any evidence relating to whether or not the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant might be capable of giving rise to an action for damages.

In the course of submissions Mr Richards informed the court that he did know the name of Detective Greig on the night of the incident, though he had some doubts about whether it was accurate. He also informed me that in the following year, 1992, he found out the name of the other policeman, namely Police Officer Robinson. So one can say that back in 1992 he had all the information he needed in order to bring the proceeding. He has asserted from the Bar table that he did not appreciate that he could bring proceedings until he read in the press about the fact that some claims were brought successfully by people who had been in accidents many, many years ago, and that that prompted him to take steps.

In my view, taking into account the failure to properly place evidence of the relevant matters before the court, I am not persuaded, on the evidence that is before the court, that it would be just and reasonable to extend the time to bring any proceeding against these two police officers, and I dismiss the application.

Limitations of Actions Act 1958

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