New South Wales Supreme Court CITATION : SOAMES v STATE OF NEW SOUTH WALES [2001] NSWSC 1043 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 13923/92 HEARING DATE(S) : 4 October 2001 JUDGMENT DATE : 4 October 2001 Andy SOAMES (Plaintiff/Respondent) PARTIES : v State of New South Wales (Defendant/Applicant) JUDGMENT OF : Adams J at 1 COUNSEL : Mr A Soames (Plaintiff/Respondent) Mr D Moore (Defendant/Applicant) SOLICITORS : Mr A Soames (Plaintiff/Respondent Crown Solicitor (Defendant/Applicant) CATCHWORDS : Application to strike out pleading LEGISLATION CITED : Limitations Act 1969 DECISION : The motion is granted; the respondent to pay the applicant's costs; the matter to be placed in the Defamation List for call-over. Ex tempore - Revised THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J THURSDAY 4 OCTOBER 2001 13923/92 ANDY SOAMES v STATE OF NEW SOUTH WALES JUDGMENT 1 HIS HONOUR: Mr Soames commenced an action against the State of New South Wales, which is the applicant in the present motion, on 30 July 1992 claiming damages for various defamatory statements made by employees of the Department of Youth and Community Services, as it was then named. That statement of claim was amended by a further amended statement of claim filed in the Court on 10 December 1993. In this statement of claim Mr Soames alleged a defamatory statement was made in November 1984. 2 The other allegations concern reports to him by various other persons who are alleged to have said, either expressly or implicitly, that defamatory statements had been made to them, either by the officer concerned in the November 1984 alleged defamation, or some other officer of a government department, possibly the Department of Youth and Community Services, but not necessarily. Of course the reports to Mr Soames by others of defamatory statements allegedly made to them do not establish the date that any such statements were made, if any. Any such defamatory statements must have been made prior to January 1985 having regard to the dates of the reports specified in the statement of claim. 3 The paragraph alleging the making of a defamatory statement is para 4, whilst the paragraphs reporting the making of defamatory statements, implicitly or explicitly, are paras 4A, 4B, 4C, 4D, 4E, 4F, and 4G. In some of these paragraphs it is alleged that the reporter has obtained the information defamatory to Mr Soames from an identified officer of the Department of Youth and Community Services. 4 Para 10 of the statement of claim alleges that the defamatory statements referred to in para 4 were repeated by that officer and other officers of the Department on a number of other occasions between May 1984 and July 1986. However, those occasions are not specified and it is clear that this paragraph could not stand without further particularisation. 5 By its defence, amongst other things, the present applicant has pleaded the Limitations Act 1969. By notice of motion filed on 13 March 2000 the applicant seeks to have the causes of action arising from the matters alleged in paragraphs 4A, 4B, 4C, 4D, 4E, 4F, 4G and 5 of the further amended statement of claim dismissed pursuant to Pt 15 r 26 of the Rules of the Supreme Court upon the principal basis that there can be no reply to the defence arising under the Limitations Act, so that judgment for the applicant on the matters to which that defence applies is inevitable. 6 It is obvious that the allegations to which I have referred concern causes of action which arose in excess of six years before the commencement of the action by Mr Soames. 7 For his part Mr Soames has made lengthy oral submissions opposing the making of the orders sought. It is unnecessary for present purposes to do more than briefly advert to these submissions. He said that in fact he had been defamed by officers of the Department of Youth and Community Services and possibly other departments on many more than the occasions alleged in his statement of claim but that, for a number of reasons, not all of which were appropriate, these occasions had been omitted by the solicitor acting on his behalf (pursuant to a grant of legal aid) from the further amended statement of claim. 8 He said that the various proceedings in which he has been involved over the years in the Magistrate's Court, the Family Court of Australia and this Court, together with his personal circumstances involving, but not exclusively, the physical and sexual abuse of his son, his attempts to deal with his son's disturbed behaviour and also obtain recompense or relief or action of various kinds from various organs of Government, had so traumatised him that he was unable to attend to ensuring that the litigation in respect of which this application is brought was properly structured and made the appropriate allegations. 9 Mr Soames complained that he had sought but failed to procure the intervention of the Independent Commission Against Corruption, the New South Wales Police Force, the Police Integrity Commission, the Premier and various other official bodies and pleaded with me to obtain the intervention of one or more of them to investigate the allegations which he has made connected not only with his son but also with his attempts to obtain justice. 10 On questioning by me Mr Soames said that all the other defamations to which he had referred had occurred prior to 1986. It follows that no amendment of his further amended statement of claim to include allegations covering these defamatory statements could survive a Limitations Act defence. 11 It is obvious that the other matters to which he has adverted, including improper obstruction by one or more officers of the State Government, are legally and factually irrelevant to the issue raised by this notice of motion, although in some circumstances a defendant might be estopped from raising a Limitations Act defence where that defendant contributed to delay in the commencement of proceedings in a material way. 12 Mr Soames has read an affidavit by him sworn on 2 November 2000 which, although wide-ranging, does not seem to me to bear on the possibility that an estoppel of this kind has been created in this case. If there had been such grounds, and because Mr Soames is unrepresented, I might have delayed giving judgment to enable him to obtain legal advice on this aspect of the matter. However, I do not think that the occasion for exercising this flexibility has arisen. 13 It follows that the Court should dismiss the paragraphs which I have enumerated above. 14 On a query by me of Mr Moore, appearing for the applicant, it was also sought to strike out para 10 of the further amended statement of claim, the effect of which I have referred to above. I have already mentioned that the original statement of claim was filed on 30 July 1992 so that the critical date in respect of exploration of the limitation period is the making of defamatory statements on or before 29 July 1986. Since para 10 alleges that such statements were made on a number of occasions between May 1984 and July 1986 there is a small window of potential action comprehending 30 and 31 July 1986. 15 As I have mentioned para 10 is objectionable on other grounds but, as it was not specified in the notice of motion and as the dates upon which the alleged defamatory statements have not been particularised, I do not consider that I should at this stage dismiss para 10. 16 Paragraph 11 of the further amended statement of claim refers to an alleged defamation said to have occurred in or about March 1992 by another officer of the Department then called the Department of Family and Community Services. This is clearly within time. Of course no application to strike out this allegation is made. 17 The result is that the motion is granted. The respondent must pay the applicant's costs. I order that the matter be placed in the defamation list for callover. *********** Last Modified: 11/20/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.