STATE OF NSW v MULCAHY

CITATION: STATE OF NSW v MULCAHY [2006] NSWCA 303 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 2; Bryson JA at 3

CATCHWORDS: PRACTICE and PROCEDURE - amendment - plaintiff sued State for assault, false imprisonment and other claims after being arrested charged tried and acquitted for armed robbery - plaintiff did not sue until some of police admitted fabrication in Police Integrity Commission about 11 years after arrest - claims were time-barred and he wishes to rely on Limitation Act s.55 (fraudulent concealment) - after complex events in litigation, District Court allowed amendment of Statement of Claim to restore some counts earlier abandoned - State sought leave to appeal on grounds which included that it is beyond argument that the plaintiff could not succeed, because of the time bar - the Court of Appeal was of opinion that plaintiff's proposed Reply to time bar relying on s.55 and or estoppel was not unarguable, required redrafting of the Statement of Claim but refused leave to appeal. Consideration of claims of prejudice and other grounds for opposing amendment. Consideration of Queensland v J L Holdings and amendment under Civil Procedure Act 2005

Law Reform (Vicarious Liability) Act 1983 (NSW) District Court Rules 1973 (NSW) Pt.9 r.9(2) Uniform Civil Procedure Rules 2005 (NSW) District Court Act 1973 (NSW) s.44(1) LEGISLATION CITED: Law Reform (Law and Equity) Act 1972 (NSW) ss. 5 and 6 Supreme Court Act 1970 (NSW) s.51(2) Civil Procedure Act 2005 (NSW) ss.56, 57, 58, 64(2) Federal Court Rules Order 13 r.2 Limitation Act 1969 (NSW) ss.14, 18A, 55, 60G

Cabassi v Vila (1940) 64 CLR 130 Darker & Ors v Chief Constable of the West Midlands Police [2001] 1 AC 435 Hawkins v Clayton (1987) 164 CLR 539 CASES CITED: Itek Graphix Pty Ltd v Elliott [2001] 54 NSWLR 207 Metacel Pty Ltd v Ralph Symonds Ltd (1969) 90 WN (Pt.1) 449 State of Queensland v J.L. Holdings Pty Ltd (1997) 189 CLR 146 The Commonwealth v Verwayen (1990) 170 CLR 394

PARTIES: Claimant: State of New South Wales Opponent: Sean Mulcahy

COUNSEL: Claimant's counsel: J.E. Maconachie QC / D. Mallon Opponent's counsel: P. Doherty SC / G. Jones

SOLICITORS: Claimant's solicitor: Crown Solicitor Opponent's solicitor: Philip Sim & Associates Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40879/05

HODGSON JA TOBIAS JA BRYSON JA

3 NOVEMBER 2006 STATE OF NEW SOUTH WALES v MULCAHY Judgment 1 HODGSON JA: I agree with Bryson JA. 2 TOBIAS JA: I agree with Bryson JA. 3 BRYSON JA: The claimant seeks leave to appeal from the order of the District Court (Her Honour Judge Quirk) on 25 October 2005, which granted the opponent leave to file a (third) Amended Statement of Claim. The proposed appeal relates to a matter of practice and procedure, and such appeals are, appropriately, kept on a tight rein. The opponent as plaintiff brought an action in the District Court on 15 August 2003 against the State as first defendant and also against Messrs King, James, Nimmo and Lennon, who at earlier times were Police, and against the Commissioner of Police, as the second to sixth defendants. Mr Mulcahy alleges that he was arrested on 19 February 1991 and charged with armed robbery and with possession of a prohibited weapon on 1 August 1990. Mr Mulcahy alleges that on the day he was arrested he was assaulted by Mr James, causing injuries of some severity, and that Mr Nimmo and Mr Lennon were involved in the assault. He was held in custody for about two months after which he was released on bail. After some time he was tried and acquitted; it is not clear when he was acquitted, but the latest date suggested was 16 September 1994. Mr Mulcahy alleges that he was notified about July 2002 by the Police Integrity Commission that Mr Nimmo admitted under compulsion that evidence that Mr Mulcahy had admitted the offences was fabricated, and also admitted some tortious acts; and that Mr Lennon had also made partial admissions. Later there was a public hearing by the Police Integrity Commission relating to these events, and about 18 June 2003 the Commission informed Mr Mulcahy that it approved the release of the information which had been conveyed to him in July 2002.

4 In his Ordinary Statement of Claim as first filed Mr Mulcahy set out allegations of a number of causes of action:

Assault, battery and trespass to the person. This related to events which occurred on 19 February 1991.

False imprisonment and false arrest. This related to events which began on 19th February 1991 and continued until his release on bail about two months later.

4. Malicious prosecution. The Particulars do not identify the prosecutor whose conduct and malice are relied on. The date of accrual of this cause of action is unclear, but it cannot have been later than the date of the acquittal. Observations by Romer LJ in O'Connor v Isaacs [1956] 2 QB 288 suggest that the accrual date may be earlier.

6. Misfeasance in Public Office. According to Mr Mulcahy's allegations this tort arises from events from 19 February 1991 until determination of the prosecution.

5 Senior Counsel for Mr Mulcahy told the Court of Appeal that he now wishes to rely on claims for assault, false imprisonment and Misfeasance in Public Office, and he still alleges malicious prosecution but he no longer wishes to make claims for negligence and abuse of process. Mr Mulcahy claims that the State is vicariously liable for tortious acts and omissions of officers of the Police Service pursuant to the Law Reform (Vicarious Liability) Act 1983. The count for assault relates to personal injury. The allegations of negligence, malicious prosecution and Misfeasance in Public Office are followed by particulars alleging physical and psychological injury. Section 14 of the Limitation Act 1969 imposes a general limitation period of six years and s.18A imposes a limitation period of three years for claims for damages for personal injury founded on negligence, nuisance or breach of duty. 6 The State filed Notice of Grounds of Defence on 7 June 2004. The Defence disputes that there is vicarious liability in the circumstances, and traverses a number of facts, alleges that the police officers enjoyed immunity at common law and pleads a time bar under the Limitation Act 1969 (NSW). So far as appears other defendants did not file Notice of Grounds of Defence. Mr Mulcahy applied by Notice of Motion on 19 November 2003 for an order pursuant to s.60G of the Limitation Act 1969 extending the limitation period. This Notice of Motion has not been heard and determined, and an Amended Notice of Motion filed by Mr Mulcahy on 1 March 2005 has taken its place; it claims: (1) A finding that the running of the limitation period was suspended by operation of s.55 of the Limitation Act until at least 18 June 2003. and alternative claims relating to the operation of the Limitation Act , but not including the claim under s.60G. 7 The State applied by Notice of Motion filed on 25 October 2004 for an order striking out some paragraphs of the Statement of Claim. Mr. Mulcahy filed a (first) Amended Ordinary Statement of Claim on 1 December 2004 in which claims are made against the State; there are no longer claims against other defendants. This change followed some discussion or arrangement between Ms Norton SC who represented Mr Mulcahy at the time and counsel or solicitors representing the State. In a (second) Amended Statement of Claim filed on 22 February 2005 the only tort alleged is malicious prosecution and the only defendant is the State. Preparations for hearing proceeded and on 24 May 2005 a Judicial Registrar made directions including appointing Monday 7 November 2005, estimate five days, for the hearing. On this occasion the State consented to a direction that Mr Mulcahy's Amended Notice of Motion be heard at the trial. 8 Ms Norton informed Mr Mulcahy's solicitor on 26 August 2005 that she was no longer able to act for Mr Mulcahy; thereafter Mr Philip Doherty SC was retained and he advised that Mr Mulcahy revert to the original allegations. Mr Mulcahy then applied by Notice of Motion filed on 7 October 2005 for leave to file a (third) Amended Statement of Claim which would do this and the State would continue to be the only defendant, and Judge Quirk granted this leave. Arrangements for the trial to begin on 7 November 2005 were set aside; and the State's application for leave to appeal followed. 9 Senior Counsel for the State contended in support of leave to appeal that the amendments were futile because s.55 of the Limitation Act could not apply to Mr Mulcahy's causes of action. It was contended that the Trial Judge had failed to take into account the circumstance that the causes of action which Mr Mulcahy sought to reinstate were statute barred. Section 55(1), (2) and (3) are:- 55 Fraud and deceit (1) Subject to subsection (3) where: (a) there is a cause of action based on fraud or deceit, or (b) a cause of action or the identity of a person against whom a cause of action lies is fraudulently concealed, the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by the person or by a person claiming through the person against a person answerable for the fraud deceit or concealment.

(2) Subsection (1) has effect whether the limitation period for the cause of action would, but for this section, expire before or after the date mentioned in that subsection.

(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.

15 Many possible answers exist; I do not now have an opportunity to dispose of the question whether Mr Mulcahy can rely on some such matter and I am addressing the ample bounds of the reasonably arguable. The difficulties which may exist include these. The statutory provision which imposes vicarious liability on the Crown for the torts of police officers may not affect the position in conscience of the Crown in relation to the acts of police officers. The course of conduct of the police officers which comes under consideration consisted very largely (but perhaps not entirely) of evidence which they gave in court proceedings, and it is for consideration whether their conduct in giving evidence is available upon a claim of unconscionability and whether its availability is affected by the immunity from suit which witnesses enjoy: see Cabassi v Vila (1940) 64 CLR 130, Darker & Ors v Chief Constable of the West Midlands Police [2001] 1 AC 435. 16 There is, so far as I am aware, no judicial authority which supports or instances the application of the general doctrine of estoppel by conduct, or of equitable principles relating to estoppel, as answers to reliance upon the Limitation Act. The equitable replication of fraudulent concealment, which was part of the earlier law, would not have extended to Mr Mulcahy's position, but it may be that having regard to s.55 of the Limitation Act there is no longer any room for its operation; s.55 operates more widely than that doctrine. It should be remembered that in Hawkins v Clayton (1987) 164 CLR 539 at 590 Deane J. said: It is arguable that the notion of unconscionable reliance upon the provisions of a Statute of Limitations which provides the foundation of the long-established equitable jurisdiction to grant relief in a case of concealment of a cause of action until after the limitation period has expired (cf. s 55(1) of the Limitation Act) should, by analogy, be extended to cover cases such as these where the wrongful act at the one time inflicts the injury and, while its effect remains, precludes the bringing of an action for damages. It seems to me, however, that the preferable approach is to recognize that it could not have been the legislative intent that the effect of provisions such as s 14(1) of the Limitation Act should be that a cause of action for a wrongful act should be barred by lapse of time during a period in which the wrongful act itself effectively precluded the bringing of proceedings. On that approach, the reference in s 14(1) of the Act to the cause of action first accruing should be construed as excluding any period during which the wrongful act itself effectively precluded the institution of proceedings.

17 Under the old law the equitable replication of fraudulent concealment was available only in reply to a defence to an equitable claim based on the Statute of Limitations by analogy: see Metacel Pty Ltd v Ralph Symonds Ltd (1969) 90 WN (Pt.1) 449. Reliance by Mr Mulcahy on Verwayen principles is far more than a revival of the old law relating to this equitable replication, which occupied a small part of the ground now covered by s.55. The proposed replication is novel and difficult. I am not called upon to endorse it or express a view about its availability; I go no further than to address whether it is reasonably arguable. In doing so I assume that Mr Mulcahy will be in a position to give evidence himself of his own part in the complicated chain of events the existence of which it would be necessary to show to fulfil Deane J's account of the circumstances in which an estoppel by conduct is available. 18 In the course of argument members of the Court of Appeal expressed a number of concerns about this litigation and about courses which parties have taken in it. These included concerns about the form in which Mr Mulcahy's Statement of Claim alleges Malicious Prosecution; that is not before the Court of Appeal for adjudication as the amendment under challenge does not deal with it. Members of the Court observed to the effect that it was appropriate for Mr Mulcahy to state in a clearer way which person or persons are alleged to have been the prosecutors whose states of knowledge and states of mind are relevant in relation to absence of reasonable cause and malice, and also expressed the view that it was appropriate for the State, notwithstanding that the burden of proof is not upon it, to identify the matters and things upon which it relies upon the issue of whether there was reasonable cause for maintaining the prosecution. The Court asked Mr Mulcahy's counsel to indicate, in a clear way and in writing, his reply to reliance by the State on its limitation defence. A high degree of particularity of statement appears important for debate and decision at trial on the association between tortious or unconscionable conduct of police officers and vicarious liability of the Crown. 19 Senior Counsel for the claimant put forward a number of other grounds upon which it was contended that the discretionary decision of Judge Quirk should be set aside. It was contended that Judge Quirk misdirected herself in that in the course of her reasons Judge Quirk referred to the State's having been on notice (and from the context, this must refer to knowledge at earlier stages based on earlier forms of Statement of Claims) that Mr Mulcahy asserted that false imprisonment and assaults took place as well as malicious prosecution (Judgment p10). The impact on the State of the re-introduction of these allegations was a relevant consideration, and it was relevant and appropriate for the Trial Judge to refer to the allegations' having been before the defendant at an earlier stage. In my opinion there is no reasonably arguable ground for claiming that Judge Quirk misdirected herself in this respect. 20 It was also contended that the Trial Judge misdirected herself when dealing with a submission on behalf of the State on election. It was contended that where a plaintiff who has a choice of two remedies makes a deliberate decision to pursue a separate and distinct remedy and deliberately allows a limitation period to elapse, the plaintiff cannot be later allowed to depart from that election. Counsel relied on Itek Graphix Pty Ltd v Elliott [2001] 54 NSWLR 207. The present facts do not involve an election between remedies which by statute are clearly alternate, such as the election made by the plaintiff in Itek Graphix; nor do they involve a deliberate decision to allow a limitation period against one claim to pass while pursuing another claim. Her Honour's reasons referred to significant distinctions between the present facts and the subjects addressed in Itex Graphix. In my opinion the Trial Judge made no error of the kind asserted. 21 It was then contended that the Trial Judge was in error in taking into account an irrelevant matter. When dealing with the contention on behalf of the State that she should determine "the limitation point" as part of the exercise of her discretion on the amendment, the Trial Judge, saying that she did not propose to do this, also said "This point was not fully argued by Mr Sim [Mr Mulcahy's solicitor] and I note that, with all due respect to Mr Sim, there was a considerable imbalance in the representation of the parties." She went on to refer to circumstances in which Mr Mulcahy's counsel was not present. The lack of full argument, whether by a less or by a more experienced advocate, was a relevant consideration in deciding whether to embark on determining "the limitation point" as part of the exercise of discretion in determining whether or not to allow the amendment, and there were powerful considerations adverse to attempting to determine the limitation point in the course of an interlocutory application. The appropriate time for determining any limitation point is the hearing of proceedings; limitation points are pleas in bar, and attempts to decide them in advance of trials, or by separate decision of questions, can readily involve difficulties related to ascertaining the facts fully. Only if it was clear that Mr Mulcahy had no arguable answer would it have been appropriate to dispose of the amendment application on limitation points. Further, disposing of the amendment application would not dispose of any limitation point relating to Mr Mulcahy's claim for malicious prosecution. In my view it would have been inexpedient to attempt to decide limitation questions on the amendment application, and there was no error.

22 Some other grounds were relied on to the effect that the decision of the Trial Judge was said to be likely to lead to a miscarriage of justice by extending the time taken and the complexity of the trial; I do not think that this is a ground of sufficient strength to warrant grant of leave. It was contended that the Trial Judge misapprehended the facts; and several grounds were put forward which relate closely to grounds which I have earlier considered. I would not uphold these grounds.

23 Senior Counsel for the State referred to a number of matters which were said to give rise to prejudice relevant to the exercise of the discretion to allow an amendment. Senior Counsel pointed out that the prospects of there being a reply to the limitation defence and any reference to principles associated with Verwayen emerged only in the course of argument of the appeal on 12 July 2006. Counsel observed that the matter had not been raised by filing a Reply to Notice of Grounds of Defence which the State filed on 7 June 2004. A form of Draft Reply was produced by Mr Mulcahy's Senior Counsel during the hearing in the Court of Appeal on 12 July 2006; this appeared to me to be a preliminary draft, first thoughts and unsatisfactory. The District Court Rules 1973 (NSW) in force in 2004 did not deal specifically with filing a reply to a Notice of Grounds of Defence but clearly contemplated that there could be a subsequent pleading: Pt.9 r.9(2) required that "In a Notice of Grounds of Defence or subsequent pleading …" a party was to plead specifically any matter which if not pleaded specifically may take the opposite party by surprise. This rule should be understood to have authorised a subsequent pleading, a direction to file a reply was made on 23 November 2004, but none has been filed. Good practice required any matter likely to cause surprise, such as this would be, to be notified in advance of the hearing. In the Uniform Civil Procedure Rules 2005 (NSW), a Reply is available and any chain of pleadings set off by any further amendment will open up the opportunity and the duty to plead such a matter in a Reply. There not having earlier been a Reply, and the absence of any formulation, even in unsatisfactory terms, of the matter now relied in reply are not compelling or sufficient reasons for closing off a procedural opportunity to raise what is contended to be a reply to the limitation defence. Its importance for the just disposition of Mr Mulcahy's claims is central, and if he were not given full and fair judicial consideration of it I do not think that procedural justice would be done.

24 Senior Counsel for the State contended that reliance on the proposed Reply raises for consideration whether the District Court's equitable jurisdiction extends to determining it, or whether if the reply were raised the action should be removed into the Supreme Court. In my opinion the action falls within the conferral of jurisdiction on the District Court by s.44(1) of the District Court Act 1973 (NSW). In the exercise of that jurisdiction the District Court is required to conform to ss. 5 and 6 of the Law Reform (Law and Equity) Act 1972 (NSW). The requirement of s.6 to give effect to every ground of defence in the manner in which the Supreme Court would give effect to it in like case means that the District Court is to conform with s.60 of the Supreme Court Act and to recognise and take notice of equitable duties and liabilities which appear incidentally in the course of proceedings; this extends to any equitable reply to any ground of defence. The District Court is also to give effect to s.51(2) of the Supreme Court Act 1970 (NSW) and to treat as a defence matter which in an earlier system would have become the subject of an injunction to restrain prosecution of proceedings or some part of them. In my opinion there is no jurisdictional obstacle to the District Court giving effect to the proposed reply. 25 High Court authority supports the view that only in extreme circumstances should case management principles shut a party out from litigating an issue which is fairly arguable - see State of Queensland v J.L. Holdings Pty Ltd (1997) 189 CLR 146 at 154; and see too 155. However that case was not decided on legislation such as now controls the power of amendment. Consideration of an amendment application should begin with s.64(2) of the Civil Procedure Act 2005 (NSW) which is in these terms: 64 Amendment of documents generally (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

26 These subsections have a strong general similarity to Order 13 r.2, of the Federal Court Rules, which were applied in Queensland v JL Holdings. However other provisions of the Civil Procedure Act require to be considered. I particularly refer to the following: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.

27 It will be seen that subs.64(2) is subject to s.58.

28 In Queensland v JL Holdings Pty Ltd amendment of the defence was governed by Order 13 r.2 of the Federal Court Rules, the terms of which were so familiar that their Honours' exposition of its operation was not seen to require citation of its terms. For present purposes it is useful to set out Order 13 r.2(1) and (2). ORDER 13 AMENDMENT ... General 2.(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.

(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. 29 When regard is paid to all these provisions of the Civil Procedure Act the relative importance of changes in the way the action was conducted at earlier stages on the one hand, and of a party's wish to put forward some new matter as one of the real questions raised by or otherwise depending on the proceedings on the other hand, is significantly altered. The approach to amendments which the judgments in Queensland v JL Holdings treated as appropriate is significantly altered also. Judge Quirk did not refer to these sections, and the reasons which she stated do not indicate that she gave appropriate consideration, as considerations adverse to allowing the amendment, to the earlier course of proceedings and the various directions in which earlier forms of the Statement of Claim, including significant amendments based on the views of senior counsel, had taken the litigation. There were circumstances adverse to the grant of an amendment in Mr Mulcahy's having brought forward a proposed amendment, in litigation which had been pending for two years and where a date for hearing had been appointed in May 2005, one month before the appointed hearing date in November 2005, in a form which would greatly add to the complexities of the proposed hearing. Mr Mulcahy made claims on public resources, and imposed difficulty on the State by bringing forward claims which altered the issues in the litigation in complicated ways at so late a stage; and the difficulties involved are not reduced by the circumstance that the claims to be brought forward, or most of them, had earlier been brought forward but had been abandoned. All these adverse matters should however be taken into account with the remarkable and markedly unusual history of the revelation of what was known by the two former police who gave information to the Police Integrity Commission. That puts the position of Mr Mulcahy and the difficulties he has created into a much more excusable position than they would otherwise be in. 30 Section 64(2) of the Civil Procedure Act 2005 directs attention to ascertaining what are the real questions raised by or otherwise depending on the proceedings. The elaborate and unfortunate course which Mr Mulcahy's case has taken, in which his Statement of Claim was twice amended, secondly to remove certain causes of action, and then amended a third time to restore them has no doubt caused considerable inconvenience, loss of time and unnecessary expenditure of costs. All of these have a claim for consideration, but they do not necessarily or usually outweigh the direction in s.64(2) to make all necessary amendments for the purpose of determining the real questions. I have no doubt that the causes of action in the (third) Amended Statement Of Claim are real questions; and an affidavit of the plaintiff's solicitor showed that, with the benefit of the advice of his present Senior Counsel, he wishes to rely on them; the Trial Judge acted on this basis and I see no reason why she should not have done so. The earlier course in which they were not relied on is not a reason for declining to accept that these are real questions for determination. There are elements of presumed prejudice in the considerable passage of time since the first of the causes of action accrued, but relatively little of this lost time elapsed between the second and third amendments and is to be attributed to or related to the amendment under appeal. Although no prejudice arising from the lapse of time was specifically proved, it should be presumed that there was some, but I do not think that could reasonably be regarded as an important element in the overall events which have led to the elapse of an unusually long time between accrual of the first cause of action and the present. I do not think that leave to appeal should be granted so as to allow reopening of the question of prejudice.

31 Before disposing of the Ordinary Summons for leave to appeal the Court of Appeal should consider whether the pleadings state the parties' cases as the Court of Appeal has understood them to be. The Court of Appeal gave directions for the parties to bring in draft pleadings, and the parties lodged drafts of their Amended Statement of Claim, Defence, Reply And Rejoinder; with written submissions on them. The Court of Appeal should consider the documents and the submissions which have been made on them, so as to see that they take forms which can be taken to trial without further debate relating to pleadings. The Court of Appeal should itself preside over settlement of these documents or depute that task to one member. In a separate Memorandum, I indicate my own preliminary views on the difficulties which have been discussed. 32 When and if the pleadings are settled and are in satisfactory terms I would propose that the Ordinary Summons for Leave to Appeal should be dismissed. Costs should be plaintiff's costs in the action. State of New South Wales v Mulcahy

MEMORANDUM

1. This Memorandum deals in a preliminary way with the draft amended documents and with submissions which the parties produced on 1 September 2005.

2. Use in the draft further Amended Statement of Claim (DFASC) of the expression "one or more of the police officers" at several points in the allegations has led to several objections. This is an unsatisfactory formulation and the "one or more" police officers to which each such allegation refers should be identified by name. If DFASC paras 5 and 23 are read together the answer to this difficulty is suggested; but the plaintiff should take a clear position. This affects DFASC paras 6 and 8, both the first and the second sentence. This should be remedied by the plaintiff redrafting the allegations.

Amended Defence para 3 should be specific so as to state for which causes of action it is conceded the State is vicariously liable and for which that is disputed.

Amended Defence para 10 raises objections to DFASC 8, claiming that they plead evidentiary facts; this objection should not be upheld.

Amended Defence 18 again alleges that FASC 19 alleges evidentiary facts. It also alleges that FASC 19 is insufficiently particular. These objections should not be upheld.

Amended Defence 19 raises similar objections to FASC 20 as Amended Defence 18 raised to FASC 19. These should not be upheld.

Amended Defence 21 asserts that there are embarrassing allegations in FASC 22; this should not be upheld and FASC 22 should stand.

Amended Defence 22 deals similarly with FASC 23, which should stand.

Amended Defence 26 deals similarly with FASC 29, 30, which should stand.

Amended Defence 28 deals similarly with FASC 32, which should stand.

Rejoinder 2 asserts that Reply 3 is embarrassing; Reply 3 should stand.

Rejoinder 13 asserts that Reply 10 should be supported by particulars. This should be done.

When the parties have considered these observations they should obtain an appointment for directions before Bryson JA.

02/03/2007 - plainitff should read plaintiff - Paragraph(s) catchwords

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