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. During the hearing it appeared to the Court that if the case fell within s52 no order extending the limitation period was required and no such order could be made either under that section or under s58. When these matters were drawn to the attention of counsel, they agreed that the order under s58 could not be supported and the appropriate course was to set it aside leaving any issues under s52 to be dealt with at the trial or, perhaps more conveniently, at the hearing of a preliminary question in advance of the trial. Counsel also agreed that the hearing of the summons could be treated as the hearing of the appeal. 2 UNREPORTED JUDGMENTS Accordingly I would propose that leave to appeal be granted, that further compliance with the Rules of Court relating to filing of a notice of appeal and preparation of appeal books be dispensed with, and that the appeal be allowed. Since I would allow the appeal on a point which was not taken below there should be no order as to costs in this Court. (See NRMA Insurance Ltd v B & B Shipping Pty Ltd (1947) 47 SR 273 at 282.) The opponent should have a Certificate under the Suitors Fund Act. The orders in the motion seeking an extension under the Limitation Act should be set aside and in lieu thereof there should be an order that the notice of motion be dismissed with costs. The orders made in the second notice of motion pursuant to the Felons Civil Proceedings Act 1984 are confirmed. These orders are without prejudice to the rights of either party in relation to the application of s52 of the Limitation Act. Mason P IJ agree. Beazley JA I agree. Mason P The orders of the Court will be as proposed by Mr Justice Handley. (1) Leave to appeal granted. (2) Further compliance with the Rules of Court dispensed with. (3) Appeal allowed. (4) Orders of the District Court in the motion for an extension of the limitation period set aside. (5) In lieu thereof notice of motion dismissed with costs. (6) The respondent to have a certificate under the Suitors' Fund Act. Otherwise no order as to costs. Counsel for the appellant: P A Regattieri Solicitors for the appellant: I V Knight Counsel for the respondent: J S Coombs QC/W Strain Solcitors for the respondent: Walsh & Blair (Wagga Wagga)