Radford v State of New South Wales [2009] NSWDC 278

Reported Decision : 10 DCLR (NSW) 34

New South Wales District Court

CITATION: Radford v State of New South Wales [2009] NSWDC 278

HEARING DATE(S): 6 August and 23 October 2009

JUDGMENT DATE: 30 October 2009

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

1. The defendant's motion seeking to strike out and dismiss the plaintiff's statement of claim is dismissed; DECISION: 2. Plaintiff is granted leave to amend his fifth proposed further amended statement of claim, such pleading to be filed on or before 30 November 2009, 3. The plaintiff is to pay the costs of the defendant's motion filed on 5 June 2007; 4. The plaintiff is to pay the defendant's costs of his own motion filed on 26 June 2009 and of his amended motion filed on 9 September 2009.

CATCHWORDS: LIMITATION – whether a claim limited to aggravated and exemplary damages which excludes a claim for damages for personal injury is caught by a 3 year limitation period as provided by s 18A of the Limitation Act 1969 - PRACTICE AND PROCEDURE – amendment of pleadings – s 65(2)(c) of Civil Procedure Act 2005 – prejudice – whether defendant has established prejudice by reason of unavailability of witnesses to give evidence in defence of claim by plaintiff.

Civil Procedure Act 2002 LEGISLATION CITED: Crown Proceedings Act 1988 Limitation Act 1969 Uniform Civil Procedure Rules 2005

Fleet v RSPCA [2007] NSW SC 1420 CASES CITED: Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 Rooke v Barnard [1964] AC 1129

TEXTS CITED: Fleming, The Law of Torts, 9th ed (1998) Law Book Company, The Laws of Australia, vol 33