(3) For the purposes of subsection (1), a person is answerable for fraud deceit or concealment if, but only if:
(a) the person is a party to the fraud deceit or concealment, or
(b) the person is, in relation to the cause of action, a successor of a party to the fraud deceit or concealment under a devolution from the party occurring after the date on which the fraud deceit or concealment first occurs.
10 In my opinion the claims for assault, for false imprisonment and for Misfeasance in Public Office are all barred by limitation periods imposed by s.14 or s.18A (or both) and are not relieved of the time bar by s.55. They do not fall within cl.(a) or (b) of subs.55(1). The facts, including the falsity of the police evidence, must always have been known to Mr Mulcahy and it cannot be said that his cause of action was concealed from him. That the causes of action for assault and false imprisonment are not based on fraud or deceit and are not within cl.(a) requires no exposition. In my opinion the cause of action for Misfeasance in Public Office is not "a cause of action based on fraud or deceit" within the meaning of cl.(a) because that clause refers to a cause of action of which fraud or deceit is an element, and not merely to a cause of action in the proof of which evidence will show that there was some deceit, or some fraud. Nor can it be said, in terms of cl.(b), that these causes of action, or the identity of the police officers was fraudulently concealed; they were known to Mr Mulcahy from the beginning. It is also my opinion that these causes of action cannot fall within the later passage in subs.55(1) in that it cannot be said, as a matter of fact, that Mr Mulcahy first discovered or might with reasonable diligence have discovered fraud, deceit or concealment at any time later than they actually occurred; that is (following the terms of the Statement of Claim which assigned the Misfeasance in Public Office to fabricating evidence against him, and thereafter maintaining silence in relation to their having fabricated evidence against him) it cannot be said that there was any discovery of those facts at any later time than when they occurred; in the nature of things it must have been obvious to Mr Mulcahy from the beginning, knowing as he did that he had not made the admissions which the fabricated evidence attributed to him, that there was deceit as an aspect of the police officers' performance of Public Office. It cannot be said that the manner in which police officers were performing their Public Office was concealed, as Mr Mulcahy must have known at all times that their conduct was wrong.
11 The possible operation of subs.55(3) in relation to the State's vicarious liability has not been examined.
12 In endeavouring to explain how Mr Mulcahy would seek to answer reliance by the State on the Limitation Act his Senior Counsel referred, in the most general terms, to the possible availability of equitable grounds preventing reliance by the State on the time bar. When depicting the possible basis for this contention Senior Counsel gave a narration in which after he was acquitted Mr Mulcahy sought advice on whether he should sue police officers for damages for assault and false imprisonment and was advised that although he had been acquitted there was still a strong case supported by the evidence of several police officers against him, and that it would be imprudent for him to sue; as Senior Counsel put it, he was told "not to go back for his hat". To my mind it is discernible, not with clarity but as an arguable possibility, that there may be some answer of this kind to reliance by the State on the Limitation Act. Unless there is some such reply, the limitation defence appears to me to put the claims for damages for assault, false imprisonment and (slightly less clearly) Misfeasance in Public Office beyond the range of the reasonably arguable.
13 In my opinion the conduct of police officers in giving a false account of what they and Mr Mulcahy did in relation to what were alleged to be confessional statements, maintaining that false account in proceedings in which Mr Mulcahy was committed for trial and at his trial, and in not revealing its falsity thereafter until they encountered the Police Integrity Commission constitutes a reasonably arguable basis for an estoppel by conduct of the kind described by Deane J. in The Commonwealth v Verwayen (1990) 170 CLR 394 at 443 to 446. The views there expressed by Deane J. have not, in my understanding, been authoritatively adopted. Indeed the question whether any legal rule is authoritatively established by the judgments in the High Court in Verwayen, and what that rule may be, is an extremely complex and difficult subject; but the careful formulation there given by Deane J., with references to authority, makes it impossible to say that it is not reasonably arguable that there is a general doctrine of estoppel by conduct, and that it has the central principle stated by Deane J. at p.444 in these terms:
2. The central principle of the doctrine is that the law will not permit an unconscionable -- or, more accurately, unconscientious -- departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation.
14 Mr Mulcahy's prospects of overcoming the time bars in ss.14 and 18(A) and succeeding in his claims depend on his prospects of successfully relying on principles associated with Verwayen. To rely on this doctrine it would be necessary for Mr Mulcahy to show that the course of conduct and the acts of the police officers in relation to giving and maintaining their false account created an assumption that that false account, supported by the evidence of several police, would be relied on in defence to any claim which Mr Mulcahy would have brought, so that it would in practical terms have been hopeless for him to bring such a claim: Mr Mulcahy would have to show that it would be an unconscionable departure by the police officers, and by the State which is responsible for their tortious conduct, to set up the Limitation Act against him, and that his not having sued within the time available under the Limitation Act was conduct produced by the assumption.