Reported Decision : 6 DCLR (NSW) 112 New South Wales District Court CITATION: Clinton Brilley v Presidential Security Services of Australia Pty Ltd [2007] NSWDC 284 HEARING DATE(S): 3 November 2006, 8 December 2006, 23 February 2007 EX TEMPORE JUDGMENT DATE : 23 February 2007 JURISDICTION: Civil JUDGMENT OF: Neilson DCJ at 1 DECISION: Motion Dismissed; Plaintiff to pay defendant's costs of the motion CATCHWORDS: Plaintiff while committing an armed robbery on 23 June 2003 was shot and injured by a security guard either employed by or contracted to the defendant. - Proceedings commenced on 8 November 2005. - Application to join the security guard personally as second defendant more than 3 years after injury. - No application under Limitation Act 1969, s 60C. - Application made to join second defendant on 14 August 2006. Plaintiff claimed original 3 year limitation period had not expired as at that date as plaintiff under a "disability" for 18 months during which he was incarcerated. - Held: Plaintiff not under a "disability". - Plaintiff again incarcerated at time of this application. - Plaintiff failed to establish a prima facie case as required by the Felons (Civil Proceedings) Act 1981. LEGISLATION CITED: Felons (Civil Proceedings) Act 1981 Limitation Act 1969 Kotulski v Attard [1981] 1 NSWLR 115 CASES CITED: Karaagac v GRE Insurance Limited (Court of Appeal, unreported, 26 April 1989, BC 890 2246) Wheeler v The Police Service (2004) 1 DCLR (NSW) 283 Morris v The State of New South Wales (unreported, 24 November 2005 Sydney 3588/2004) PARTIES: Clinton Brilley (Plaintiff / Applicant) Presidential Security Services of Australia Pty Ltd (Defendant / Respondent) FILE NUMBER(S): 4810/05 COUNSEL: A. Canceri (Plaintiff / Applicant) P. Stockley (Defendant / Respondent) SOLICITORS: CMC Lawyers (Plaintiff / Applicant) Curwoods Lawyers (Defendant / Respondent) JUDGMENT 1 HIS HONOUR: This is an application by the plaintiff for leave to amend the statement of claim in order, inter alia, to join a second defendant. The plaintiff also seeks leave pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 in order to do so because at the current time the plaintiff is a convicted felon. 2 In November 2002, shortly after the plaintiff had attained his twentieth birthday, he committed an offence of armed robbery. He was arrested and then released on bail. Whilst on bail, he committed a second offence. That offence occurred on 23 June 2003. The offence was aggravated breaking and entering with intent and in company. 3 The circumstances of the second offence give rise to the allegations made in the current matter. At the time the plaintiff committed that offence he was on bail. He was not arrested until 29 January 2004. He was then incarcerated in Silverwater gaol. 4 On 22 October 2004 the plaintiff was sentenced by his Honour Judge Woods. His Honour imposed a non-parole period of eighteen months, commencing at the date of the plaintiff's incarceration on 29 January 2004 with a head sentence of thirty months imprisonment. 5 After the plaintiff was sentenced by his Honour Judge Woods he was transferred to Lithgow Gaol. He remained at Lithgow until five or six weeks prior to his release on parole, at which time he was taken to the Windsor Correctional Centre. On 28 July 2005 the plaintiff was released on parole from Windsor. 6 On 8 November 2005 the initiating process in these proceedings was filed. The nominated defendant was Presidential Security Services of Australia Pty Limited. The initiating process alleged that the defendant was responsible for the care, control and management of security services at the Earlwood Bardwell Park Sports Club at Earlwood. The named defendant was alleged to be vicariously liable for the actions of its servants, agents and/or subcontractors. Paragraph 5 of the initiating process is in the following terms: "On or about 23 June 2003 at approximately 4 a.m. the defendant through its servants, agents and/or subcontractors shot the plaintiff with a firearm at which point the plaintiff fell to the ground and suffered injury." 7 The statement of claim then alleges that the security guard who shot the plaintiff was a servant, agent, or contractor to the defendant. Amongst the particulars alleged are the use of excessive force, of assaulting the plaintiff and of continuing to shoot at the plaintiff as he attempted to decamp from the club premises and drive away in a vehicle. Particular of negligence numbered ("O") is in the following terms: "The plaintiff additionally alleges that the security guard employed by the defendant attempted to shoot the plaintiff again following the initial shot when the plaintiff was standing facing him with his hands in the air and following the plaintiff asking the security guard to `Don't shoot me'. It is alleged that the security guard attempted to fire his gun again, but there were no bullets left and the security guard proceeded to reload his gun prior to re-commence firing." 8 The particulars of injuries given are of a bullet wound to the abdomen and the lower back area, a low back injury, shock and psychological trauma. 9 On 28 July 2006 the plaintiff completed the head sentence imposed by Judge Woods. On an unspecified date in August 2006 a trial began of the plaintiff for the offence which occurred in November 2002. The plaintiff was on bail during the trial but told me that he failed to turn up on the "last day" which, on one view of it, was the day of the sentencing hearing. The sentencing hearing commenced on 3 September 2006. On 17 September 2006 the plaintiff was arrested on a bench warrant and ultimately his Honour Judge Geraghty imposed a head sentence of seven years and six months imprisonment with a non-parole period of five years and three months. 10 The current application was commenced on 14 August 2006. At that time the three year period of limitation imposed by the Limitation Act 1969 had expired, yet in the current application the plaintiff wishes to join David Arthur Bingle as a second defendant. It is alleged that Mr Bingle is the security guard employed by Presidential Security Services of Australia Pty Limited, who shot the plaintiff at the Earlwood Bardwell Park Sports Club on 23 June 2003. The plaintiff wishes to file an amended statement of claim in the form of Exhibit BB before me. 11 In order to join Mr Bingle, the plaintiff has to establish that the limitation period under the Limitation Act had not expired as at 14 August 2006. The plaintiff has not sought to extend the limitation period under s 60C of the Limitation Act. The plaintiff's argument is that the limitation period was suspended for the eighteen months that the plaintiff was incarcerated between 29 January 2004 and 28 July 2005. If one adds eighteen months to the prima facie limited period of three years, one can see that the limitation period had not expired as at the time of the filing of this notice of motion on 14 August 2006. 12 Section 50F of the Limitation Act 1969 is in the following terms: "(1) If a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability. (2) A person is under a disability while the person: (a) is a minor, but not while the minor has a capable parent or guardian, or (b) is an incapacitated person for a continuous period of 28 days or more, but not while the person is a protected person. (3) In determining when a cause of action is discoverable by a person who is a minor, or an incapacitated person, who is not under a disability, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the incapacitated person are taken to be facts that are known or ought to be known by the minor or incapacitated person. (4) In this section: capable parent or guardian of a minor means a person who is a parent or guardian of the minor and who is not under a disability (as referred to in subsection (2)). guardian of a minor includes a person who under a written law of the State is exercising the parental responsibilities of the Minister under the Children and Young Persons (Care and Protection) Act 1998 for the minor. incapacitated person means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (a) any disease or any impairment of his or her physical or mental condition, or (b) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1990, or (c) war or warlike operations or circumstances arising out of war or warlike operations. protected person means: (a) a person in respect of whose person another person is guardian, whether under the Guardianship Act 1987 or any other act or law, or (b) a person in respect of whom an order is enforced under the Protected Estates Act 1983 or the Guardianship Act 1987 that the estate (or any part of the estate) of the person be subject to management under the Protected Estates Act 1983. (5) Sections 52(Disability) and 53 (Notice to Proceed) do not apply to a cause of action to which this Division applies." 13 The Limitation Act also contains in s 11(3) a definition of a person under a disability but it is not necessary to cite that definition because the relevant terms of it are duplicated in s 50F. 14 The issue, accordingly, is whether the plaintiff was a person who was incapable of, or substantially impeded in, the management of his affairs in relation to the cause of action by lawful restraint during the period eighteen months when he was incarcerated under the sentence imposed by his Honour Judge Woods. 15 The submission put to me on the plaintiff's behalf is that he was substantially impeded in the management of his affairs in relation to the commencement of the current proceedings. Unsurprisingly, there is some learning on this statutory provision and its counterparts. The first authority to which I have regard is the decision of Slattery J in Kotulski v Attard [1981] 1 NSWLR 115. I note that his Honour was assisted by M D Finlay QC (as he then was) and M Ireland (as he then was) who appeared for the plaintiff. At 117F his Honour said this: "As there were no competing contentions by the parties to this motion as to the intent of Parliament in respect of the extension of the limitation period where a disability under the Limitation Act is established, little assistance gained from the Act, being, in my view, a remedial one: see Bull v Attorney General for New South Wales (1913) 17 CLR 370 at p 384; Pearce, Statutory Interpretation in Australia, para [162], pp 105, 106. Section 11(3)(b) is concerned with two classes of person: 'One who is incapable" (which conveys the concept of total inability) and the other "substantially impeded in the management of his affairs in relation to the cause of action by reason … of disease or impairment or physical or mental condition.' According to the Shorter Oxford Dictionary to "impede" means to obstruct in progress or action; to hinder or to stand in the way of. "Substantially", in my view, does not mean trivial or minimal, neither does it mean total: See R v Lloyd [1967] 1 QB 175." 16 The next case chronologically is Karaagac v GRE Insurance Limited (Court of Appeal, unreported, 26 April 1989, BC 890 2246). The plaintiff's house was destroyed by fire on 11 April 1980. More than six years later the plaintiff commenced proceedings for a declaration that the defendant insurer was liable to indemnify him under a policy of insurance in relation to that property. The plaintiff sought to rely on s 52(1) of the Limitation Act which provided that, where a person was under a disability, the running of the limitation period was suspended for the duration of the disability. 17 The plaintiff had been imprisoned for two periods of time. The first period of imprisonment was between 30 April 1980 and 30 April 1982, and the second period of imprisonment commenced on 19 November 1982 and ended on 1 December 1986. 18 The plaintiff had instituted proceedings much earlier, but they were dismissed by Rogers J in the Commercial List on 23 March 1983 when the plaintiff was unable to comply with the case management procedures in that list. The plaintiff was unsuccessful in his argument at first instance and also on appeal. Meagher JA pointed out that the plaintiff was not unacquainted with solicitors and in fact had employed from time to time four different solicitors. His Honour pointed out that the evidence disclosed that there was no difficulty in the plaintiff's being able to write letters to his solicitors as often as he wished and had no difficulty making telephone calls to them. Meagher JA pointed that the plaintiff did nothing between the dismissal of proceedings by Rogers J on 23 March 1983 and the date of his release from custody in order to contact his solicitors. His Honour said that the evidence was quite inadequate to hold that the plaintiff was substantially impeded in the management of his affairs. It would appear that Hope J A, and certainly Clark J A, did concur with his Honour. The copy of the judgment that I have does not show what Hope JA said but the only inference to be drawn from the report is that he concurred with Meagher J A. Clark J A pointed that mere impediment is not sufficient. The plaintiff must show that he has been substantially impeded. His Honour continued thus: "It was submitted that the appellant had discharged the onus of showing that, by virtue of the fact that it was clear that he was unable to attend at his solicitor's office and press him for action. He was deprived of the right open to litigants who are not imprisoned to exerting pressure on his solicitor in person. The evidence reveals, however, that while he was imprisoned between November 1982 and December 1986 he made no attempt whatever to speak to his solicitor. This was in marked contra-distinction to his earlier conduct on the occasion of his first term of imprisonment. On that occasion he had much contact with his solicitors he was then instructing. On this occasion, however, he made no attempt to speak to a solicitor and there has been no evidence adduced which explains why he simply failed to take that action. In those circumstances, whilst it is clear that the imprisonment operated as an impediment to his management of his affairs it is, in my opinion, not correct to conclude that the impediment was a substantial one." 19 The next decision to which I have been referred is that of Goldring DCJ in Wheeler v The Police Service (2004) 1 DCLR (NSW) 283. In that case, the plaintiff was alleging that he was assaulted by the police who arrested him. He had been arrested on 3 October 1998 and was sentenced for robbery some time in 1999. At the time his Honour made his decision the plaintiff had not been released from gaol, but it was expected that he was to be released some time after 22 March 2004. His Honour pointed out that almost since the time of his arrest the plaintiff was in segregation. 20 The plaintiff also gave unchallenged evidence that he had not received correspondence sent to him by his solicitors and that that situation had obtained over a period of time. The plaintiff in that case became aware of his right to sue at the end of 2001 and originally wrote to his solicitors in December 2001 but did not speak to his solicitor until 10 January 2002. 21 Unfortunately, that solicitor was killed in a motor vehicle accident, and his Honour thought it reasonable to assume that the plaintiff, being in gaol, may not have known about that, and that would have impeded his ability to communicate with his solicitors. His Honour was persuaded on the evidence in that case that the plaintiff was under a disability, but nevertheless proceeded to consider the provisions of s 60C and made an order under that section as well. 22 The final decision to which I have been referred is that of Rein DCJ in Morris v The State of New South Wales (unreported, 24 November 2005 Sydney 3588/2004). The plaintiff in that case sought to bring a claim for assault upon him by three police officers and for wrongful arrest and false imprisonment at Castle Hill. The events were said to have occurred on the evening of the eighteenth or the morning of 19 December 1991. The plaintiff maintained that he was "under a disability" within the meaning of s 52 of the Limitation Act because for significant periods he was in prison in New South Wales or Queensland in respect of various crimes of which he was convicted. 23 His Honour held at paragraph 15 that, if the disability is established, it is not necessary to examine the relationship between the disability and the failure to bring proceedings. With that decision of his Honour I agree. His Honour pointed out the disability of children being an obvious example of that, and so it is. There are some precocious children, especially nowadays that legal studies are taught in school, who have much more knowledge of their actual rights than many adult members of the community. However, being a precocious child is not an exception to the disability of minority. 24 If, in the current matter, there were a requirement for the disability to cause the failure to bring proceedings, then the plaintiff, as is rightly conceded by his Counsel, could not succeed. During the period that he was in gaol the plaintiff was unaware that he was entitled to bring proceedings either against the current defendant or the proposed defendant. In that case, the plaintiff was unsuccessful in the argument. He had managed to prepare a detailed statement, which he sent to his solicitor, and which was used to make an application to the Ombudsman, which application was successful. His Honour continued thus: "Although Mr Morris did give evidence of the limitations on phone access and checks on correspondence, there was nothing to indicate that the proceedings before the Ombudsman were impeded by reason of his incarceration and no evidence that a step required for the commencement of civil proceedings (for example a fresh medical examination) could not be arranged. An examination of the plaintiff by a medical practitioner was carried out soon after the injuries were reported, and a report was prepared. There is evidence...that a psychiatric report had been subsequently obtained. Thus whilst I would not exclude the possibility of full-time custody being a substantial impediment I am not persuaded that in this case it was." 25 On the authorities, it is clear that full-time custody may or may not be a substantial impediment in the management of a plaintiff's affairs in relation to the cause of action in question. That must be so, as it is a question of fact in every case. 26 The plaintiff swore an affidavit on 3 November 2006, which was a day on which he was in court in relation to the second criminal trial. The plaintiff also gave evidence before me on 9 December 2006. The plaintiff told me that when he was incarcerated at Silverwater, that is, between his arrest on 29 January 2004 and his being sentenced by Judge Woods on 22 October 2004, he was communicating with his lawyers. He told me that he had written to them once or twice. He also thought that he had had telephone conversations with his lawyers whilst at Silverwater. Whilst he was at Silverwater he was also visited by his mother and father and his sister, although his sister has no role to play in my deliberations because she was a minor. 27 If I may paraphrase Mr Brilley's evidence, he appears to have been visited almost weekly by his parents. After his incarceration at Lithgow he was visited by his parents at least twice each month. In the last five or six weeks of his imprisonment, which was at Windsor, the plaintiff could not be visited by his father because he had been barred from visiting, but he was in contact with his mother. 28 Indeed, whilst the plaintiff was at Lithgow, he communicated with his lawyers about the first offence of November 2002, again by mail and telephone. The plaintiff was never in solitary confinement, never in segregation and never in protective custody. I accept that there were some difficulties or hindrances in the plaintiff's communicating by telephone. He was permitted to make telephone calls at each penal establishment between 8 a.m. and 3 p.m., however calls were limited to six minutes. He told me that at Silverwater there were two phones but there were lengthy queues for the use of the telephone, about 100 persons in each queue. That may well be hyperbole, because, if 100 persons each made a call of six minutes, that would be 600 minutes, or ten hours, which was greater than the period from 8 a.m. until 3 p.m. However, although there may have been a lengthy wait to use the telephone, there is no evidence given by the plaintiff that, for example, there were times when he could not phone when he wished to do so, or that he was prevented for any lengthy period of time, for consecutive days or weeks, from making a telephone call. 29 There is no evidence that the plaintiff could not write regularly to whomever he wished to write and could not prepare a statement if he wished to. The evidence and counsel have sought to distinguish between "criminal lawyers" and "civil lawyers" but there is no evidence as to the identity of the solicitors who may have been acting for Mr Brilley; no evidence, for example, that he or she was a Public Defender who must necessarily only act in criminal matters; no evidence that the solicitors acting for Mr Brilley for each of the two offences of which he was charged and convicted could not have given him advice as to civil proceedings, or alternatively, arranged to have him referred to someone who might be able to provide him with advice about civil proceedings. 30 Paragraphs 10 and 12 of Mr Brilley's affidavit need to be considered. Paragraph 10 is in the following terms: "I was not aware that some lawyers are willing to run civil matters such as mine when you are up against the system and cannot pay any fees. I had no savings and no assets and was mostly concerned with my safety in gaol rather than suing anyone when I got out." 31 Paragraph 12 is in the following terms: "I did not see any lawyers in gaol about this case and the lawyers I did see did not mention that I had a case over the shooting. Had I not been in gaol I would have made inquiries of civil lawyers. It is dangerous to discuss anything on the phones in gaol because everything is recorded and people hear about anything to do with money and it causes inmates to demand or beg for money with or without violence. Therefore I would have been too frightened to make inquiries about this case over the phone whilst in prison even if I had known I could and had access to a lawyer with the right knowledge." This, it would appear to me, are ex post facto rationalisations. It became clear from his evidence in cross-examination that the plaintiff never considered civil proceedings until after he was released from custody and was given certain advice by his mother, who told him that he should see a solicitor about a possible claim. In cross-examination, the plaintiff eventually gave this evidence: "Question: So it's not really correct to say that had you not been in gaol you'd have made inquiries of civil lawyers, is it? Answer: I suppose not." 32 Furthermore, even if the plaintiff was actually frightened that his conversations with civil lawyers might be overheard, it was always open to him to write a letter. On the evidence before me, I am not persuaded on the balance of probabilities that the plaintiff was substantially impaired in the management of his affairs in relation to the cause of action which he alleges accrued to him on 23 June 2003. I accept that being incarcerated is an impediment, but I am not persuaded that it is a substantial impediment. The fact is that, during the plaintiff's period of incarceration, both before and after sentence, he was in communication with lawyers both on the telephone and in writing, and there is no evidence to suggest that those communications were impeded. The plaintiff had not considered civil proceedings during that period of time, so his subsequent explanation for why he did not is, as I said, ex post facto rationalisation. 33 It follows that to grant the relief sought would be futile, because the plaintiff would be entitled to plead the Limitation Act. As I said earlier in these reasons for judgment, no application has been made by the plaintiff under s 60C of the Limitation Act 1969. 34 If I be wrong on that, I turn to the provisions of the Felons (Civil Proceedings) Act 1981. Section 4 of that Act is in the following terms: "A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of the court granted on application." Section 5 is in the following terms: "A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings." 35 The submission put to me on behalf of the defendant is that there is no prima facie evidence for the proceedings. The defendant points to the detailed evidence given in Wheeler v The Police Service about disclosing a prima facie case. The plaintiff gave evidence to his Honour, as did his girlfriend at the time, and medical evidence was put before him including hospital records which contained a statement that: "Detective admits to assaulting him causing lacerations to the back of head". 36 What evidence is there in the current matter? Besides the pleading, which is not evidence at all, there is the affidavit of the plaintiff's solicitor, Mr Brendan Moran, which is Exhibit AA. Mr Moran repeatedly refers to the plaintiff's allegations and his affidavit does not provide any evidence for any of them. Mr Canceri, for the plaintiff, points out that in paragraph 8 of his affidavit the plaintiff refers to his being shot. The relevant clause in paragraph is this: "It was never suggested to me by any criminal lawyer I saw in gaol that I might have a case against anyone because of my shooting." 37 Literally construed, "my shooting" refers to the act of the plaintiff in shooting someone else. However, I am prepared to accept that the plaintiff was in fact referring to his being shot. It appears to have escaped the plaintiff, his solicitor, and his counsel what the difference between the active and the passive voice is. Furthermore, I have been referred to paragraph 12 of the plaintiff's affidavit in which he refers to being in gaol. Mr Canceri also referred to the plaintiff's solicitor's certificate under s 347 of the Legal Profession Act 2005, but, in my view, the solicitor's certificate is not evidence of the facts. It is only the solicitor's certificate that on the evidence available to him, which in the current matter must necessarily mean the plaintiff's instructions, that there was an arguable case. However, there was some material given in cross-examination which might be of assistance. 38 At page 13 this evidence is recorded: "Question: Moreover, when you were sentenced by Judge Woods on 22 October 2004 do you remember that some of the material that was placed before him contained your opinion that it was unfair that you were being punished while the security guard was not, do you remember that? Answer: Yeah, that's correct. Question: Do you remember that Judge Woods told you that however human such a response might have been it was reasonable and foolish for you - it was unreasonable and foolish for you to persist with such a belief, do you remember he said that? Answer: I think so." Really that evidence is an averment by the plaintiff of his perception of unfairness, and a recitation of the opinion of Judge Woods that the belief was unreasonable and foolish. Really there is no evidence before me to substantiate the matters contained in either the originating process or the amended statement of claim upon which the plaintiff seeks to rely, which is Exhibit BB. In my view, the plaintiff has failed to establish the prima facie case which he must establish for me to grant the leave under subs 5. Unless the plaintiff establishes a prima facie ground for the proceedings, the court must not grant leave. Accordingly, even if I be wrong in my finding under s 50F, in my view, the plaintiff has failed to establish the grounds for relief under the Felons (Civil Proceedings) Act 1981. Accordingly, the motion is dismissed. 39 I order the plaintiff to pay the defendant's costs of the motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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