State of New South Wales v Donnelley

29. In my view the applicant has satisfactorily explained his failure to act within the statutory period. His case is distinguishable from that of the applicant in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, an authority to which I was referred by both counsel. The present applicant at no time made an informed decision not to bring an action." 43 The claimant submitted that the judge erred in finding that the opponent's symptoms increased in 2000, that only after his breakdown did he become aware that his condition had become so serious that it was not likely to resolve, that he then came to the realisation that he would be unable to continue to serve as a police officer, and that he sought further legal advice about his rights because of his breakdown and his final acceptance that he would be unable to pursue his chosen career. The claimant further submitted that the judge erred in finding that it was only when the opponent consulted Dr Wright that he was aware that he was suffering post-traumatic stress, and that she should have found that the opponent had failed satisfactorily to explain why proceedings had not been brought within the statutory period and that he had in fact made an informed decision not to bring proceedings. 44 It was well open to the judge to find that the opponent's symptoms increased in 2000. The breakdown in July 2000, the referral to Dr Wright and the certified absence from duties were eloquent of that circumstance, and it was recognised in, amongst other places, the email of 16 February 2001. The claimant relied on evidence from the opponent that his symptoms immediately after the shooting in 1989 continued in peaks and troughs thereafter and at earlier times were less severe than when his application was heard, but that is consistent with a worsening in July 2000. It was also well open to the judge to find that it was only after his breakdown that the opponent realised the seriousness of his condition and faced inability to continue to serve as a police officer, as Dr Kemp effectively concluded at the time. That there was thereby triggered seeking further legal advice was also a finding open to the judge, as a reasonable inference from recognition that the opponent's career in the police force was at an end. There is nothing in these submissions. 45 These findings, as an explanation for the opponent commencing his proceedings when he did, bear upon an explanation for the opponent not commencing proceedings at an earlier time. The opponent undoubtedly knew from the beginning that he was psychologically affected, and came to question whether he had a claim against the police service. He first turned to the possibility of a claim in 1989-90, although at that time focussing on training and protection in relation to the shooting rather than subsequent counselling etcetera. The judge's finding in para 27 that only in 1997 did he know he was suffering post-traumatic stress might be thought generous. But it was not the critical finding: that was the acceptance that he was told by his solicitors that he had no claim. 46 The judge made a slip in saying that the opponent was told he had no claim "in 1989 by two different firms of solicitors". He was told in 1989 and then in 1997. The slip was obvious, and the claimant made no point of it. Being told that he had no claim was not an informed decision not to bring an action of the kind thought fatal to an extension in Itek Graphix Pty Ltd v Elliott. The judge's acceptance of the opponent's evidence in this respect can not be gainsaid on appeal. 47 In that connection, the claimant submitted that the judge failed to pay regard to the facts that neither the opponent nor his solicitor gave evidence in chief concerning previous legal advice and that prior to the hearing the opponent claimed client legal privilege with respect to communications with Walter Madden Jenkins and Watson Stafford. It was submitted that this reflected adversely on the bona fides of the application, and demonstrated unwillingness and inability to give a full and satisfactory explanation of the delay in commencing proceedings. 48 The opponent said, in effect, that when his solicitors told him he did not have a claim he did not think he had to include that in his affidavit. He was asked whether he knew that he had to explain why he had not taken action earlier, and replied, "No, but I can explain it to her Honour". He was not pressed further. He was asked about claiming client legal privilege, but had no understanding of it. His present solicitor was asked about the same matters. She said that she thought it irrelevant that the opponent had sought legal advice from previous solicitors, because her instructions were "that it was for him not to pursue the claim". This unclear phrase, if correctly transcribed, was not explored, and in the light of the opponent's evidence the instructions must have been that he had been told that he did not have a claim to pursue. The solicitor denied that the claim to client legal privilege was intended to hide the fact that the opponent had received legal advice in the past in relation to commencing proceedings, and pointed out that it was obvious from the report of Dr Skinner, which had been disclosed, that the opponent had consulted Baker & Edmunds. 49 The assertion of client legal privilege had been made by letter. The claimant had not taken steps to test it by applying for discovery of documents or by subpoena. It was obvious to the claimant that the opponent had retained solicitors at earlier times, both Baker & Edmunds and Walter Madden Jenkins. Perhaps the opponent should himself have gone into his earlier legal advice as part of explaining why he did not commence proceedings earlier (see for example ASB-Tech Services Pty Ltd (in liquidation) v Doeland [2003] NSWCA 167 at [30]), but in the end the fact of the advice was brought out. There was no question of deceptive concealment, and the claimant's stance was rather hollow when it had not challenged what was probably an unmaintainable assertion of client legal privilege and had not sought to go behind the opponent's evidence that he was advised that he had no claim. The judge made no specific reference to these matters, but there was no need to do so and there is no reason to think that she failed to take them into account in coming to her conclusions in the paragraphs earlier set out and her ultimate conclusion. 50 I do not think error has been shown in the judge concluding, in assessing what was fair and just, that the opponent's failure to bring his proceedings until the time he did was satisfactorily explained.

Error as to prejudice from delay 51 The judge said - "19. The respondent adduced no evidence of any actual prejudice although it can of course rely on the presumption of prejudice caused by the delay. However the respondent has been aware of the applicant's injury since it occurred and has been monitoring him since that time. The respondent is bound by the Workers Compensation Act (s 6) and is require to retain all the plaintiff's personnel records for a minimum of seven years after the plaintiff left its employ. Therefore such records should still be in existence.

20. The respondent is also bound by the State Records Act 1998, which replaced the State Archives Act 1960 and must retain all records unless given permission to destroy them. There is no evidence before me that such permission was given at any time and I am entitled to assume that the respondent still has all such records pertaining to the applicant. Therefore there is no presumptive prejudice." 52 The judge reasoned that there was no presumptive prejudice because the claimant had all the opponent's personnel records and other records "pertaining to" the opponent. With respect, this was inadequate reasoning. Records may or may not provide the wherewithal to defend a claim in a fair trial. It depends on the nature of the claim, on whether the records will sufficiently cover the factual issues likely to arise, and on whether the records will sufficiently alleviate the prejudice of faded memories and evidence lost because forgotten. The burden of establishing fairness and justice being on the plaintiff, if doubt remains it will weigh against a grant of leave. 53 I have earlier referred to the indeterminate nature of the opponent's claim. It would not be realistic to exclude from consideration all contributions to the opponent's psychological state in July 2000: from the shooting itself, from his placement in the weapons training unit, from his deployment in distressing investigations, from unsympathetic treatment and harassment at work, and from lack of necessary counselling, to the extent to which these are said to have contributed. At every step the acts and omissions of other police officers are likely to be called in question, not only those alleged to have assaulted him or denigrated him but also those responsible for decisions as to his duties over the period from April 1989 and in particular in the first half of the 1990's. This will have to be explored against the background of the then perceptions by the responsible personnel in the police service of the opponent's psychological condition and what might assist it or harm it, and with regard to their reasons for the courses they took or permitted to be taken. The claimant may be found negligent in some respects but not others, and questions of contribution to his psychological state may arise. 54 There was no evidence of the availability or otherwise of the persons within the police service whose acts, omissions and perceptions will be material. They will be numerous: the way the opponent has framed his case makes it so. Not all will be available, and for many of them the events on which the opponent relies will be remote in memory. I am not satisfied that the records contemplated by the judge would make up for those who are not available or enable those who are available to place themselves back in 1989 and the first half of the 1990's. At this remove, it will not be easy for the claimant to muster evidence separating out the contributions to the opponent's present psychological state. Differing from the judge, I consider that there was prejudice to the claimant in having to meet the opponent's claim.

Re-exercise of discretion 55 The judge's discretion miscarried, and it is necessary to re-exercise it. The opponent is sadly distressed, and his prognosis is uncertain. On the evidence, he was ill-advised by earlier solicitors. On the other hand, the rationales for limitation periods stand against him, as does the imperative that the claimant should be able to defend itself in a fair trial. The prejudice to the claimant is such that, with due recognition that a fair trial is not a perfect or ideal trial (see Holt v Wynter (2000) 49 NSWLR 128 at [79] - [81]; McLean v Sydney Water Corporation [2001] NSWCA 122 at [27]), I do not think it could in 2001 meet in a fair trial the opponent's widely-based case. Fairness and justice must endeavour to balance competing considerations. I do not think the opponent has shown that it would be fair and just to extend the time within which to bring the proceedings.

1. Grant leave to appeal and direct that the notice of appeal be filed within fourteen days.

3. Set aside orders 1 and 2 made in the District Court on 27 February 2002, and in lieu thereof order that the notice of motion filed on 6 December 2001 be dismissed with costs.

4. Opponent/respondent pay the costs of the claimant/appellant of the appeal and have a certificate under the Suitors Fund Act. **********

Last Modified: 05/07/2004 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.