State of New South Wales v Bennie

State of New South Wales v Bennie - [2005] NSWCA 172 - NSWCA 2005 case summary — Zoe

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2 BRYSON JA I agree with M W Campbell AJA 3 M W CAMPBELL AJA: Introduction This application for leave was opened as an application for leave to appeal against orders made by Judge Phelan of the District Court extending the time for Robert Bennie (the respondent) to commence proceedings against State of New South Wales (the appellant) in respect of a number of causes of action. 4 The notice of motion before the Judge sought orders as follows: "1. the limitation period, for the bringing of this cause of action in these proceedings arising out of the negligence and/or breach of contract and/or assault committed by the defendant, be extended so as to expire three years after the date of (sic) which the plaintiff ceased to be under a disability, pursuant to section 52 of the Limitation Act 1969; or alternatively 2. the limitation period, for the bringing of this cause of action in these proceedings arising out of the negligence and/or breach of contract and/or assault committed by the defendant, be extended for such period as the Court determines, pursuant to section 60G of the Limitation Act 1969." 5 Although the orders were sought "alternatively" Judge Phelan expressed himself, as extending time under both provisions of the Limitation Act 1969 (the Act). 6 Leaving aside for the moment the question whether an extension of time is the appropriate order where it is held that s 52 applies, it was common ground at the hearing of the appeal that if s 52 does provide relief to the respondent an extension of time pursuant to s 60G would be unnecessary. 7 Should the orders I shall later propose be made the respondent will retain his entitlement to relief under s 52, albeit in different form. On that basis there is no utility in granting leave to appeal in respect of the order made under s 60G and I shall propose that leave in respect of that order be refused. 8 It is convenient to note the summary of the course of the proceedings set out by Judge Phelan at the commencement of his judgment. "The plaintiff issued a statement of claim against the defendant on 28 August 2001, although it was filed on 30 August according to the notation on the statement of claim. He alleged, as a police officer in the New South Wales Police Service, that he had been the object of victimization following a complaint he had made at Menindee in 1991, claiming that an officer at that station had been guilty of criminal matters and had acted in a way likely to bring disrepute to the police force. He claimed that as a result of that victimization he had been harassed, ostracised, wrongly arrested, assaulted and falsely imprisoned. There were counts as well for breach of contract and individual counts in relation to the wrongful arrest, false imprisonment and assault. Within the statement of claim there was an application for extension of time pursuant to s 11(3)(b)(i) of the Limitation Act , because of alleged disability and as well, a claim for an extension pursuant to s 60G of that Act. The defendant entered an appearance on 15 February 2002 and on 18 October of that year, filed a motion to strike out the statement of claim because the claim was outside the limitation period. On 20 November 2002 a motion as filed by the plaintiff seeking to extend time pursuant to s 52 and s 60G of the Limitation Act . The matter came on for hearing before me at Lismore." 9 It was upon this notice of motion that the Judge made the orders previously mentioned. It appears that the strike-out motion was not dealt with in any formal way. The relief under the Limitation Act in the statement of claim was, correctly, not the subject of any order. It would have been appropriate for that material to be struck out. The reference to s 11(3)(b)(i) rather than s 52 in the statement of claim was an error of no consequence. 10 Section 52 of the Act provides: "(1) Subject to subsections (2) and (3) and subject to section 53, 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) the date of the person's death, (whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates. (2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period.

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………….." 12 It will be observed that the "running of the limitation period" is suspended for the duration of the disability. No question of discretionary extension by leave arises. 13 The appropriate way for the issues thus raised by the Act to be determined is for the defendant to plead the Statute, the plaintiff to reply relying upon s 52 and, in due course, to seek to establish on the balance of probabilities that he or she was relevantly under a disability (See Kotulski v Attard [1981] 1 NSWLR 115). 14 It will often be desirable that such an issue be determined as a separate issue before the expense of the main trial is undertaken. That was the course followed in Kotulski and, had the procedure outlined been followed in this case, would have been appropriate in this matter. 15 The Court having raised these matters with Counsel it was agreed that the appellant would draft a notice of grounds of defence relying upon the Act, that the respondent would draft a reply asserting disability and that the parties would consent to an order for the separate trial of the resultant issue. I shall propose formal orders dealing with these procedural steps in due course. 16 It was also agreed that the decision of Judge Phelan in respect of the s 52 issue was to be taken as a decision in favour of the respondent on the separate issue. As I have indicated I do not consider that the challenge to that decision should succeed. 17 Before I set out my reasons for that view it is convenient to deal with the question of leave in relation to this aspect of the application. I consider that leave should be granted. 18 Subject to an extension of time under s 60G success by the appellant on the challenge to Judge Phelan's decision on the s 52 aspect would defeat the respondent's claim. The s 60G application raises additional and different issues to those here relevant. 19 A proposed ground of appeal which raised a point of principle was the contention that the Judge had erred in applying, as propounding the relevant test, the decision of Slattery J in Kotulski rather than the decision of Master Harrison in "C" v CSIRO unreported, 19 September 1997. Further, it was put that the Judge had erred in failing to give reasons for following the former decision. 20 As it happened, Mr Menzies of Queens Counsel, who appeared with Mr Windsor of Counsel for the appellant, did not rely upon these grounds. He accepted that the correct test was that propounded by Slattery J. I shall come to that test later, however, I should point out that Master Harrison had not been referred to the earlier decision. 21 Mr Burbidge of Queens Counsel, who appeared with Mr Radburn of Counsel and Mr P Woods of Counsel for the respondent, submitted that the point of principle having been abandoned it would be appropriate for leave to be refused. 22 I regard the appellant's arguments on other matters as barely tenable and there is much to be said for the view that refusal of leave would be the appropriate order. 23 However, if leave were refused the issue could be agitated again on a later appeal to this Court. The issue has been fully argued before Judge Phelan and again before this Court. I consider that, at least in the public interest, it should be finally dealt with, so far as this Court is concerned and I propose that leave be granted.

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The Primary Judgment 24 The Judge's account of "the background facts" can be summarised quite shortly. The respondent was born on 16 April 1957. He obtained his higher school certificate but did not take up the opportunity to attend University. In 1976 he joined the army and in 1983, having attained the rank of corporal, was discharged to join the New South Wales Police Service. He had a good record in the army. 25 The respondent's work assessments as a police constable were consistently high. He was transferred from a country posting to the City after he was convicted of assaulting "a town bully". That conviction was set aside on appeal. 26 The respondent suffered a number of disturbing incidents during his service in Sydney and sought a return to the country. In mid 1991 he was sent to a three man police station at Menindee. 27 At Menindee the respondent became concerned about the activities of a fellow officer "who he believed was carrying out illegal activities, as well as conducting himself so as to bring disrepute to the police force." 28 In late 1991 the respondent made written complaints to senior police who had assured him they would be kept confidential. This did not happen and the officer concerned was informed. 29 The Judge accepted that the complaints were not properly investigated and that trivial and/or manufactured complaints were then made against the respondent. These latter complaints were subsequently dismissed by the Ombudsman. 30 The Judge further accepted that "the plaintiff (respondent) was then ostracised, humiliated and vilified, becoming the target of conspiracy by police officers, including some at high level." 31 The judgment goes on: "In mid-December 1991, he was advised by senior police that he would be assessed by the police psychologist to determine his "viability" in a small police station. Later he was seen by Dr Milton, psychiatrist and informed afterwards, that the doctor had advised that he should not do country work again. Dr Milton had indeed said the opposite. This is typical of the level of conspiracy that was formed against him. He was then transferred to the city, though by this time he had been placed on stress leave." 32 The respondent had been told that he was required to give evidence in a rape charge at Central Local Court on 12 February 1992, however, on arrival he was told that he was not required. He felt angry and wandered later that afternoon to the Minto Railway Station where he was violently arrested and subsequently humiliated and brutalised at Campbelltown Police Station. In the arrest he suffered injuries to his brachial plexus which required surgery and his left arm with permanent disabilities. Charges of trespass and assault police were later withdrawn. 33 Later the respondent was taken to Campbelltown Hospital, treated for his physical injuries and admitted to a psychiatric centre there although discharged the following day. 34 After a period of psychological and psychiatric treatment the respondent was discharged from the Police Service on 3 November 1992 as medically unfit. 35 On 1 December 1995 the delegate of the Commissioner determined that the infirmity certified in the revised medical certificate of discharge of 17 July 1993 (being an adjustment disorder with depressive and anxious mood) was not caused by the respondent being "hurt on duty". Such a finding had important consequences for the respondent's financial future. 36 That finding was set aside by Geraghty CCJ who, after a long hearing, found that the infirmity was caused by the respondent being "hurt on duty". The relevant judgment was in evidence before Judge Phelan. 37 Judge Phelan noted that the appellant conceded that the respondent had suffered a mental disorder since 1991 but submitted that, whilst there might have been an occasion when the respondent was in legal terms under a disability, that occasion had long passed as was the time when he should have commenced proceedings. 38 The Judge considered Kotulski and "C" and stated the question for him, correctly, as follows: "The relevant question is whether on the balance of probabilities the plaintiff is incapable of managing, or substantially impeded in the management of his affairs in relation to the cause of action in respect of the limitation period by reason of any disease or any impairment of his, or her physical or mental condition." 39 He also noted the comment of Slattery J at 122 as follows: "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 instruction about any action."

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40 Since one of the arguments put by Mr Menzies turns upon the activities in which the respondent was able to engage between 1992 and 1996 it is necessary to take an account of them from the judgment, albeit the evidence about them was also, perhaps primarily, directed to the s 60G issue. 41 In March or April 1992 the respondent was referred by the Police Association to a firm of solicitors. He was advised that he could take action in respect of the Campbelltown matters but not the Menindee matters. He was concerned that the solicitor involved also acted for the Menindee officer about whom he had complained. 42 In July 1992 the respondent sought to have his shoulder injury accepted as "hurt on duty". Following his discharge he was offered continuing assistance by the Police Service but when he wrote seeking the assistance he received no reply. 43 As the Judge put it "he continued to protest about his treatment". He sent lengthy statements to Mr Hatton, a State Parliamentarian. He expressed a loss of faith in the Ombudsman to whom he had complained. In November 1994 the Ombudsman did advise that several of his allegations had been upheld and action recommended against some police officers. 44 In January 1993 the respondent consulted a solicitor in respect to a victim's compensation application in relation to his arm injury. This application was ultimately rejected. 45 Towards the end of 1993 the respondent moved to the Far North Coast of New South Wales. He was having difficulty in terms of delays with his solicitor and chose to deal directly with the Superannuation Board in respect of his attempts to have the status of his certificate of impairment altered. 46 The respondent wrote to the Minister of Police in October 1995 and later to the Attorney General. He also in March and April 1996 wrote to the Premier. 47 In 1996 the respondent consulted Mr Grace, who has remained his solicitor since that time. Initially he instructed him in respect of the application in respect of the "hurt on duty" issue. Later he instructed him upon a range of proceedings Judge Phelan described in the following terms: ".... he believed he had against the New South Wales Police Service, the Police Association of New South Wales, the Victim's Compensation Tribunal and the New South Wales Ombudsman as well as the Police Royal Commission." 48 I shall not recite the many steps taken by Mr Grace, however, as Judge Phelan attached considerable importance to his description of the respondent's actions and condition I should refer to those matters briefly. 49 Mr Grace gave evidence that when he first saw the respondent in April 1996 the respondent spoke in a monotone and stared fixedly at him for lengthy periods and thereafter remained silent looking at a rock which had great significance to him. Mr Grace said: "At this conference I was unable to gain any clear history as to what had happened to Mr Bennie …." 50 Mr Grace had difficulty getting instructions from the respondent in order to answer particulars requested of him. He said that he found it almost impossible to speak to the respondent. The respondent would hang up on him, not answer a question, have lengthy silences or require him to speak to his wife. 51 The judgment continued: "Returning to Mr Grace's detailed affidavit, I refer specifically to his continuing problems with the plaintiff. He said at times he could not stop him from talking. It appeared that he was in a trance, reliving the events of the day. In describing the history of the assault in detail, Mr Grace said: 'I may as well have not been in the same room as Mr Bennie at the time. His face was contorted when describing certain events, and whilst not clutching his rock, he would place the rock in a pocket, and thereafter forcibly grip the arms of the chair in which he was sitting.'

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"I found it extremely difficult to properly prepare his case for hearing in circumstances where I had advised Mr Bennie to do, or not do certain things, to no avail. I believe he did not understand the advice being provided to him, as he continued to act contrary to advice so provided." 53 Mr Grace had great difficulty persuading the respondent to attend medical examinations arranged by the proposed defendants. He was unpredictable in his behaviour, at times could not or would not speak to Counsel. On other occasions he would rant and rave and scream out violently with explosive anger. 54 Mr Grace gave an account of the respondent's behaviour in Court during the "hurt on duty" hearing which Judge Phelan considered very close to the views expressed in his judgment by Geraghty CCJ when he said: "I have watched Bennie deteriorate from day to day. As time grinded on he became more withdrawn, thin, with dark, sunken eyes, tense, sometimes explosive, while his wife Julie attended to him, followed him out of Court to settle him and supported him throughout what she must have thought was a horrible nightmare." 55 Mr Grace set out in some detail the difficulty in getting the respondent to cooperate with various barristers who were briefed in respect of various aspects, of the matter. On one occasion the respondent stormed out. It was not until April 2000 when Mr P Woods of Counsel spent a considerable amount of time with the respondent that there was "a change at least to some degree." 56 Mr Grace set out his difficulties in obtaining proper instructions to make an application for leave to proceed out of time: The respondent remained intent upon other minute and petty matters such as interest on expenses. 57 Judge Phelan observed: "Mr Justice Slattery in the case I referred to, said that it was important to consider what a reasonable person would do. Clearly a reasonable person, in any litigation that I have ever had anything to do with, would actively cooperate with his solicitor, giving answers to requests for particulars and in attending medical examinations, but the plaintiff in this case seems to have done almost anything but those things that one would expect of a reasonable person." 58 The Judge then turned to the medical evidence, although he did not purport to refer to all of it in his judgment. He did not deal with it in chronological order and I shall follow his approach. 59 He had earlier referred to the concession that the respondent had suffered a mental disorder since 1991 and to the discharge on the ground of an infirmity, as finally found, of an adjustment disorder with depression and anxiety. He noted that Dr McGinty "for the Police Service" had certified the respondent as unfit to give evidence in 1992 and had then recommended his discharge because of psychological questions. 60 The Judge set out two extracts from reports of Dr Barclay, a psychiatrist who examined the respondent for his then solicitors. On 11 October 1993 Dr Barclay reported: "In my opinion Mr Bennie is suffering a state of reactive anxiety depression. In my opinion his mental state flows from the conflict he finds himself in with the Police Department, the accumulation of events at Tallimba, Menindee and Liverpool, and in particular the assault which caused his brachial plexus lesion, his condition being complicated by two moderately severe dissociative episodes. He has quite marked symptoms of anxiety and depressive symptoms. He is very distressed by what he perceives to have been, and in fact has been the destruction of his police career. I consider that the symptoms that he has displayed that have raised the suspicion of psychosis are those of depression and an attempt to cut himself off from the reality of what has been happening to him … and the distress that he feels. In his initial presentation to myself, he made it clear that he did not like talking about these things, that he did not want to talk about these things and it was a painful place "to go to" … All of these matters are clearly duty related, and I consider that Mr Bennie has an infirmity of mind and he is incapable of carrying out the duties of his office…"

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Indeed I find myself wondering whether he is really well enough to pursue the second lot of litigation assuming that the Court gives him leave to do so. He is still a very sick man. I fear that he may find it all a source of further distrust and aggravation. He is in principal able to give instructions. However, when he has to turn his mind to the issue of possible negligence or malice on the part of his employer or its representatives, the possibility that this will stir up very considerable anger to the point that his capacity to give instructions may become periodically impaired is very real. This should it arise will bring in its train thorny questions such as whether to continue litigation, appoint a tutor and the like." 65 Finally Judge Phelan went to the report of Dr Wendy Roberts, a psychiatrist who had examined the respondent for the appellant's solicitors. He commented that he accepted her assessment as "generally fair". 66 The Judge said that he found consistent with the other reports the observations of Dr Roberts at pars 11.8 - 13 of her report. That material is not set out in detail in the judgment, however, it is convenient for the purposes of this Appeal to set it out here: "11.11 With regard to the Particulars of Disability, he does describe apprehension and avoidance of police. He described living with suicidal thoughts. I think this is likely to have been the case for many years. He certainly demonstrates extreme lack of trust and lack of confidence and fear and avoidance behaviour and impaired capacity to control his anger. I saw this verbally and physically during this appointment. I recommend that some caution be exercised with him as should he lose control, I think he is likely to be dangerous, He describes a range of emotional problems, including impaired sleep, and showed irritability here. I do not think he is agoraphobic per de but rather avoids going out for fear of seeing police. I can also understand that his relationships with his family would be disturbed. I also note a claim for impaired sexual functioning. I did not have the opportunity to canvass this with him, due to his behaviour. I also note claims for impaired capacity to give instructions, make judgments, understand advice and to reason. I had wished to carry out testing of these functions but this was precluded due to his lack of cooperation, My impression of him cognitively was that this is not the case but he does tend to perceive situations in a paranoid fashion, when the reality is at times different,. He cannot be shaken from his interpretation and in that sense is likely to have difficulties in those areas but not because of any likely cognitive impairment per se. Testing would be needed to comment further on this. His claims for physical problems as a result of the February 1992 assault invite medical opinion. I note a claim for medication to ease pain and assist sleep and control depression. He told me that he is taking nothing. He did describe difficulty driving due to the likelihood of having flashbacks and also because he prefers to avoid driving to minimise the chance of him being picked up by police. He also described inability to undertake a range of pre-injury duties and inability to work because of his emotional state. 11.12 In conclusion, Mr Bennie is an extremely paranoid, suspicious, angry and distressed man. Based on the documents currently before me and his history, he does describe having developed emotional problems as a result of his work with the Police Force. He denied any other contributing factors. He described some pre-existing problems prior to 1989 but not of significant degree, although did describe some symptoms whilst at Newtown and at a time when he may have also had glandular fever. It would seem that the majority of his problems started to develop early in 1992 after he became a whistle-blower and prior to the assault on 12.2.92 and with worsening symptoms thereafter. I note that Mr Bennie denied that 12.2.92 had been a suicide attempt but told the hospital otherwise. It appears that there is an important discrepancy between what he told me and what he told the hospital and note that others have observed this also I have no reason to doubt his current level of distress and his palpable extreme levels of anger and distrust. He has a tendency to misperceive events and to distort reality. He doe have a well-entrenched, high level of paranoid ideation, which it seems has escalated along with his anger to levels where it has encompassed his life and apparently that of his family. I would have liked to have interviewed his wife but this was not possible. 11.13 I have concerns for Mr Bennie's ability to cope with protracted court hearings. I fear for the safety of him and others, notably those involved on the defendant's side were he to lose control of his high levels of anger. I recommend that Mr Bennie be provided with ongoing treatment from a psychiatrist or clinical psychologist with post graduate training in clinical psychology, particularly at the time of any court case. I would like to see the results of any formal testing of cognitive function or emotional and personality function, in order to further clarify any issues of his ability to reason, judge and make decisions. My impression was of an intelligent, articulate man whose ability to judge is affected by his lack of trust and extreme level of paranoia." 67 After referring to the quite contained demeanour of the respondent in giving evidence before him the Judge observed:

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"The short point is … whilst there is a great deal of evidence that the plaintiff suffered from a psychiatric illness at least from 1991, there is not evidence which left it reasonably open for his Honour to find the disability for the whole of the period (as) he does." 74 He conceded "Obviously if we can't disturb his Honour's finding of a disability over the whole time then we've lost ….." 75 The short answer to Mr Menzies' point is that the evidence set out in Judge Phelan's judgment both medical and lay provides ample material upon which it was reasonably open to him to find as he did. In deference, however, to Mr Menzies' address I propose to go shortly to the principal matters he raised. I would observe that much of what he had to say would have carried more weight if the relevant test had been that propounded in "C", that is one that turned primarily upon "understanding" rather than being "substantially impeded in the management of his affairs in relation to the cause of action". 76 As a preliminary matter Mr Menzies put that the Court would need to consider particular periods, perhaps down to the level of months, to determine whether in aggregate the period or periods during which the respondent had not been shown to be disabled exceeded the limitation period. 77 Following exchanges between the Bench and Bar this aspect was refined and the proposition became that the respondent had not been shown to be disabled before 1996 when he instructed Mr Grace. If that were the position the respondent would be statute barred. Mr Menzies also contended that even after that time the respondent had not been shown to be disabled, however, as I understood his argument this was a secondary contention. Mr Menzies put that he could demonstrate conduct consistent with capacity during the whole of the period when the limitation period was running. 78 The first particular point made by Mr Menzies was that the use by the Judge of the phrase "the sort of disability that is referred to in the Limitation Act" failed to identify with appropriate precision the sort of disability to which he was referring. I should note that in the written submissions this suggested lack of precision was linked to the then claimed "tension" between "C" and Kotulski. 79 In either case I consider that the Judge was using a shorthand expression to avoid the need to repeat the detailed language of the section. 80 It was next put that an observation of the Judge in the judgment was "entirely inconsistent" with the Judge's principal finding. 81 The Judge had said, albeit in the section dealing more particularly with the s 60G application:

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"I therefore consider that from 1992 onwards to the present time Robert Bennie has had insufficient mental capacity to understand advices and give instructions to counsel." 87 Mr Menzies acknowledged that if that view were "acceptable" the appellant failed. Dr Spragg was the first treating psychiatrist. He knew the respondent's condition then and later. I consider that it was reasonably open to Judge Phelan to accept that view. 88 Dr Barclay, who first saw the respondent in September 1993 and then saw him in April 1995, considered that with fluctuations his illness had begun in 1991 and been continuous since then. This view supports the continuous nature of the condition referred to by Dr Spragg, albeit Dr Barclay was obviously not asked to answer the precise question at issue in the present matter. It is relevant that Dr Barclay supported his view of continuance by reference to "the natural history of the disorder". 89 Mr Menzies then turned to the opinion of other psychiatrists and psychologists not referred to in his judgment by Judge Phelan. It was not suggested that the Judge had not considered these opinions and I do not need to go to them in detail. 90 He pointed out that there was a diversity of opinion as to diagnosis amongst the psychiatrists and psychologists varying from traumatic stress disorder, to anxiety disorder with depressed and anxious mood, to adjustment disorder. What matters is the effect upon the respondent's mental condition and Judge Phelan was entitled to accept Dr Spragg's view of that not to mention Dr Canaris's to which I shall come. 91 A matter heavily relied upon by the appellant was the activities which the respondent had undertaken wholly or in part acting on his own behalf. He had written to Mr Hatton and others, made a claim for hurt on duty compensation, for victim's compensation and for other forms of relief. Whilst the detail in the letters suggests to the lay reader questions of obsession I agree that, in the main, they are well constructed and logical at least in relation to factual matters. 92 However, those matters do not exclude the finding that in respect of the relevant cause of action the respondent was substantially impeded. Indeed Judge Phelan was obviously impressed, as he was entitled to be, with Mr Grace's evidence as to the difficulty created by the respondent's pursuit of a variety of different activities to the exclusion of important issues relating to his cause of action at common law. 93 Mr Menzies put that the opinion of Dr McGinty as to the respondent's unfitness to give evidence in August 1992 should be considered in the light that the evidence he was being asked to give was compelled by subpoena and that he was reluctant to attend and "very cross" with his employer. That may be so, however, the Judge would be entitled to take it into account as one of many considerations pointing to the respondent's fitness to be involved in litigation. 94 Mr Menzies submitted that the Judge had overlooked the following passage in Dr Roberts' report:

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