STATE OF NEW SOUTH WALES v FRY [1997] NSWCA 295

STATE OF NEW SOUTH WALES v FRY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Mason P, HANDLEY and BEAZLEY JJA

28 July 1997, 28 July 1997

[1997] NSWCA 295

LIMITATION OF ACTIONS — DISABILITY — IMPRISONMENT

The plaintiff commenced proceedings for an injury sustained in Goulburn Gaol in late 1988. An extension of the limitation period was granted under s58 on the basis that the imprisonment of the plaintiff was a disability that substantially impaired him in the management of his affairs within s11(3)(b)(ii) of the Act.

HELD: The order extending the limitation period based on disability due to imprisonment could not be supported under s58. If the limitation period were extended by s52, no order under s58 was required or could be made.

Handley P This is a summons by the State for leave to appeal from the decision of his Honour Acting Judge Stewart in the District Court given on 10 March this year.

His Honour made an order under the Felons Civil Proceedings Act 1984 granting leave to the plaintiff to bring civil proceedings. No issue arises in relation to that order. His Honour also made an order under s58 of the Limitation Act extending the limitation period for the plaintiff's cause of action until 7 April 1997. This cause of action arose at some unspecified date late in 1988 while he was serving a sentence of imprisonment at Goulburn Gaol.

The judge concluded that the plaintiff became aware of all material facts in relation to his cause of action by March 1995 at the latest. An extension based on late discovery of a material fact or facts may have been available if an application had been made within one year after March 1995 but no application was made until it was too late. Accordingly even if he had considered that the time should be extended no order could properly be made.

The judge then considered the definition of disability in s11(3)(b)(ii) in the Limitation Act and the manner in which s52 operated to extend the limitation period where a disability existed. A person is under a disability if, for a continuous period of 28 days or more, he is subject to lawful imprisonment and is "substantially impeded in the management of his affairs in relation to the cause of action in respect of a limitation period for which the question arises" (s11(3)(b)Gi)). His Honour found that both requirements were satisfied, and therefore the limitation period should be extended and made an order to that effect.