New South Wales Court of Appeal CITATION : State of New South Wales v Judd [2003] NSWCA 355 HEARING DATE(S) : 25 November 2003 JUDGMENT DATE : 10 December 2003 JUDGMENT OF : Handley JA at 1; Santow JA at 45; Ipp JA at 46 DECISION : 1. Leave to appeal granted; 2. Notice of appeal to be filed within fourteen days; 3. Order 4 in the District Court set aside and in lieu thereof substitute an order extending the limitation period only for the cause of action against the State of New South Wales pleaded in the draft statement of claim annexed to the affidavit of Mr Hasson of 24 August 2001 subject to the deletion of para 8(c) and to para 8(d) being limited to the shock experienced in and shortly after the assault and the anxiety felt by the plaintiff referred to on p 2 of the report of Dr Nielssen of 6 August 2001; 4. Direct that a statement of claim amended in accordance with Order 3 be filed and served within 28 days; 5. Appeal otherwise dismissed; 6. Appellant to pay the respondent's costs. CATCHWORDS : LIMITATION - extension of limitation period - appeal - re-exercise of discretion - extension granted - no question of principle - ND LEGISLATION CITED : Evidence Act 1995, s.122(2) Limitation Act 1969, s.18A(2), s.58, s.60C Dedousis v Water Board (1994) 181 CLR 171 Drayton Coal Pty Ltd v Drain (CA, unreported, 22 August 1995) CASES CITED : Gallo v Dawson (1990) 64 ALJR 458 Nominal Defendant v Manning (2000) 50 NSWLR 139 Thomason v Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347 Wickstead v Browne (1992) 30 NSWLR 1 PARTIES : State of New South Wales v Paul Judd FILE NUMBER(S) : CA 40119/03 COUNSEL : M Neil QC/M Hutchings (Appellant) L King SC/F Tuscano (Respondent) SOLICITORS : Crown Solicitor's Office (Appellant) Leitch Hasson Dent (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 7022/01 FILE NUMBER(S) : LOWER COURT Nicholson DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40119 of 2003 HANDLEY JA SANTOW JA IPP JA Wednesday, 10 December 2003 STATE OF NEW SOUTH WALES v PAUL JUDD CATCHWORDS LIMITATION – extension of limitation period – appeal – re-exercise of discretion – extension granted – no question of principle FACTS The plaintiff, who claimed that he had been assaulted by a police officer, sought an extension of time under s.60C of the Limitation Act to bring an action for damages against the State in the District Court. He was approximately 2 years and three months out of time. Criminal proceedings had been brought against the police officer but he was acquitted by the jury. Counsel for the State expressly conceded that it would not be prejudiced by an extension of the limitation period. The District Court judge granted an extension. The State sought leave to appeal. HELD: Granting leave but dismissing the appeal that errors of fact and law by the District Court judge required the Court to re-exercise the discretion. However on re-exercise the extension was confirmed. ORDERS 1. Leave to appeal granted. 2. Notice of appeal to be filed within fourteen days. 3. Order 4 in the District Court set aside and in lieu thereof substitute an order extending the limitation period only for the cause of action against the State of New South Wales pleaded in the draft statement of claim annexed to the affidavit of Mr Hasson of 24 August 2001 subject to the deletion of para 8(c) and to para 8(d) being limited to the shock experienced in and shortly after the assault and the anxiety felt by the plaintiff referred to on p 2 of the report of Dr Nielssen of 6 August 2001. 4. Direct that a statement of claim amended in accordance with Order 3 be filed and served within 28 days. 5. Appeal otherwise dismissed. 6. Appellant to pay the respondent's costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40119 of 2003 HANDLEY JA SANTOW JA IPP JA Wednesday, 10 December 2003 STATE OF NEW SOUTH WALES v PAUL JUDD Judgment 1 HANDLEY JA: The opponent Paul Judd (the plaintiff) claims that he was assaulted by a police officer on 25 April 1996 and suffered a broken jaw and a broken tooth. The police officer was charged with assault occasioning grievous bodily harm or in the alternative assault occasioning actual bodily harm and on 1 September 1997 he was committed for trial. He was later acquitted but the date of his trial and the date of his acquittal were not proved. He has since left the police force. 2 The primary limitation period for an action against either the policeman or the State was three years pursuant to s.18A(2) of the Limitation Act, but under s.60C this period could be extended by the Court. 3 On 10 July 2001 the plaintiff applied by notice of motion for an extension of time to enable proceedings to be brought against the former policeman and the State. The motion was heard by Nicholson SC DCJ and in a reserved judgment delivered on 7 February 2003 he ordered that the limitation period for the cause of action set out in a draft statement of claim be extended until 31 March 2003. The former police officer was not served and there was no order for substituted service. That part of the order was made in breach of a fundamental requirement of natural justice, and must be set aside. 4 The State applied for leave to appeal from the decision and the summons has been fully heard so that the proceedings can be disposed of without a further hearing. 5 The plaintiff consulted his present solicitors (the firm) in July 1996, following surgery and a period in hospital. Mr Hasson assigned him to a Mr Joe Weller. The plaintiff stated in his affidavit of 22 November 2001 that he understood from Mr Weller's advice "that it would be necessary to wait until the criminal proceedings were over before making any claim in relation to my injuries". The plaintiff does not recall receiving any advice in relation to limitation periods from Mr Weller. 6 In early 1997 the plaintiff became aware that Mr Weller had left the firm and taken his file. The plaintiff spoke to Mr Weller and asked him to continue to act as his solicitor. After the police officer had been acquitted the plaintiff was advised by Detective Inspector Ferguson to make a victim's compensation claim. He spoke to Mr Weller and believed that such a claim had been made. 7 The plaintiff had made such a claim before for an assault by a taxi driver and had received compensation. He had also made a successful claim for damages arising from a motor vehicle accident and a successful claim for workers' compensation. Nevertheless he said in his affidavit of 22 November 2001 that in 1997 and 1998 he was not aware of any rights arising from the assault other than his victim's compensation claim. 8 In 1999 he became concerned that Mr Weller was not doing anything about his victim's compensation claim and he found out through an acquaintance that no such claim had been made. In October he instructed Mr Hasson who obtained the file from Mr Weller. Mr Hasson obtained advice from counsel and had a conference with the plaintiff and sought further information. He did not receive this and his efforts to communicate with the plaintiff in 2000 were unsuccessful. 9 In January 2000 the plaintiff's teenage daughter by his de-facto partner Donna Hare, discovered her mother in bed with another man and told her father. The plaintiff said he was devastated by the news and the parties separated. The plaintiff became depressed and "at that time, any court case relating to my assault was the last thing from my mind". 10 He was away from work for a few weeks but after that remained depressed, did not go out socially, and drank to excess at home. He recovered somewhat and was able to attend the Rugby League World Cup in England in November. He continued to feel depressed until March 2001. 11 The plaintiff and Donna were reconciled in June 2001 and she moved back into the home. He felt better and again turned his mind to making a claim for the injuries he received in the assault. He spoke to Mr Hasson who filed the application for an extension on 10 July. 12 The judge found these facts on the affidavit and oral evidence of the plaintiff and the affidavit evidence of Mr Hasson. He said that there had been no challenge to most of that evidence and Mr Hasson had not been required for cross-examination. 13 His Honour said (para 18) that in December 1999 Mr Hasson may have told the plaintiff about ss.58 and 60C of the Limitation Act. He said that in considering the plaintiff's explanation for the delay "a matter appropriate for me to have regard to in the exercise of my discretion is whether there was a material fact of a decisive character relating to the right of action that was not within the knowledge of [the plaintiff] until after the limitation period had expired" (para 27). 14 This was a reference to s.58(2)(a) but it only applies to causes of action accruing before 1 September 1990. 15 Mr King SC for the plaintiff submitted that the judge's remarks in para 27 were directed to issues under s.60E and his Honour was not referring to s.58 but this submission must be rejected. His Honour used language found only in s.58 and he had referred to s.58 in para 18. He dealt with the s.60E issues in paras 34-8 which he headed "s.60E issues". 16 The judge found that there were two explanations for the delay, the legal advice the plaintiff obtained from Mr Weller [para 5], and the adjustment disorder diagnosed by Dr Nielssen that existed between January 2000 and March 2001. He said that "on [the plaintiff's] case it is the [policeman] who is responsible for some or perhaps most anxiety as contributed to [the plaintiff's] psychiatric condition". 17 The judge was satisfied that Mr Weller obtained two medical reports in 1998 for an application for victim's compensation if the policeman was convicted. He said that Mr Weller had acted for the plaintiff on his previous application for victim's compensation but Mr Hasson did (T 8/11/02 p 15). 18 Neither party proved when the police officer was acquitted. This was highly relevant because, on the affidavit evidence, the plaintiff's only explanation for delay during the three year limitation period was Mr Weller's advice. His Honour inferred that the criminal trial concluded between July and October 1999 (para 39). 19 Mr Hasson said that after he was consulted by the plaintiff in October 1999 he obtained counsel's advice and then saw the plaintiff in December and sought further information. The legal vacation and the break down of the plaintiff's relationship with his de-facto wife followed and contributed to the further delay until he fully recovered from his depression in March 2001. 20 The State applied for leave to file further evidence in this Court to prove that the criminal trial concluded on 2 September 1998. This was neither fresh evidence nor evidence of events which had occurred since the original hearing. It was highly relevant but this is the problem. Both parties elected to conduct the proceedings at first instance without proving this fact although it was a matter of public record which the State in particular could easily have ascertained and proved. Both sides took their chance and the judge inferred that the trial concluded one year later than it did. 21 The relevance of this fact was apparent from the plaintiff's affidavit of 22 November 2001 filed nearly a year before the hearing. He said he was advised to wait until the conclusion of the criminal trial before bringing any claim for compensation. In the light of this explanation one would have expected the plaintiff to consult his solicitor as soon as the trial was over. 22 The plaintiff did not explain the delay of about a year after the true date of the trial and was not asked to do so. He may or may not have had a good explanation. The Court could not admit the evidence without giving the plaintiff an opportunity to explain this delay but that would involve a re-hearing of the motion. The State would be entitled to cross-examine the plaintiff generally, and legal professional privilege having been waived, it could have subpoenaed Mr Weller, obtained access to his file, and cross-examined Mr Hasson. 23 Evidence which is not technically fresh may more readily be admitted on an interlocutory appeal. See Wickstead v Browne (1992) 30 NSWLR 1 and compare Nominal Defendant v Manning (2000) 50 NSWLR 139. Such evidence will more readily be admitted where the appellate court can fairly deal with it without ordering a new trial. The court will be reluctant to admit additional evidence which is not technically fresh where this would require a new trial, and that is this case. 24 The parties, and in particular the State, having elected to conduct the hearing at first instance without attempting to prove this fact will not be permitted to make that hearing a waste of time and money by proving that fact on appeal and obtaining a new trial. Accordingly we rejected the additional evidence and announced that our full reasons would be incorporated in the judgment or judgments disposing of the summons. 25 On the findings and evidence before the judge there is some explanation for the whole delay. Following his recovery from his depression in March 2001 the plaintiff focussed on re-establishing his relationship with his de-facto wife. Once this had been achieved he consulted Mr Hasson and the notice of motion was promptly filed. 26 The judge found that the assault and resulting injuries contributed to the plaintiff's anxiety, basing this on Dr Nielssen's report. The connection, so far as the acts of the police officer was concerned, was obvious but the judge found that the plaintiff did not become aware of the connection between his injury and the acts or omissions of the State until after he consulted Mr Hasson in October 1999 (s.60E(1)(e)). This followed, the judge thought, because, without proper legal advice, the plaintiff would not have known that the State was vicariously liable. 27 However the vicarious liability, by statute, of the State for the torts of its police officers is not based on its own acts or omissions. It depends on legal principles which make it liable for the tortious acts or omissions of police officers committed in the course of their duties (Fleming "The Law of Torts" 9th Ed 1998 p 412). Thus in the claim against the State the act referred to in s.60E(1)(e) is that of the police officer. 28 Awareness of the connection between the injury and the defendant's act or omission only requires knowledge of the facts. The plaintiff need not be aware of the legal significance of the facts. See Dedousis v Water Board (1994) 181 CLR 171, 181; and Drayton Coal Pty Ltd v Drain (CA, unreported, 22 August 1995) per Gleeson CJ at 5, decisions on the equivalent provision in s.60I(1)(a)(iii). 29 The judge also erred in finding (paras 33, 39, 40) that there was a connection between the plaintiff's depression and the acts of the police officer for which the State was responsible. Dr Nielssen said in his report of 6 August 2001 that for some time after the assault the plaintiff "was quite anxious about retaliation by the police" (p 2). He said (p 5) that the plaintiff reported anxiety symptoms associated with the fear of retaliation by the police but these were not disabling and decreased over time. However he was severely affected by the separation from his de-facto wife and "became significantly depressed. This affected his ability to manage his affairs, both as a result of the symptoms produced by the illness, which included anxiety … and also [by] the extra duties required to meet the mortgage payments and care for his children". 30 Dr Nielssen's report does not support the judge's finding that the anxiety experienced by the plaintiff in 1996 and possibly 1997 had any effect on the anxiety and depression he experienced in and after January 2000. The judge's finding that there was a causal relationship with these events of 1996 cannot be supported. 31 The judge held that the plaintiff should not be penalised for accepting the advice from Mr Weller (paras 46, 55). He said (para 48) that "there is a real public interest in having a case of this nature argued against the alleged tortfeasors responsible for the Applicant's injury". 32 With respect, any public interest in the curial investigation of these events was satisfied by the criminal proceedings. A civil action for damages against the State would not further promote the public interest. 33 Counsel for the State conceded below that the State would not relevantly be prejudiced by having to defend the plaintiff's action on the merits (para 53). Since there could be a fair trial, despite the delay, the judge considered that it would be fair and just, for the reasons he had already given, to grant the extension. 34 The judge's errors [paras 13-15, 17, 26-30, 31-2] vitiated his exercise of the discretion and this Court must re-exercise the discretion. 35 Section 60E(1) requires the Court to have regard to all the circumstances of the case, including the matters mentioned in its paragraphs. These include the length and reasons for the delay, any prejudice to the defendant, when the injury, its extent and its connection with the defendant's act or omission became known to the plaintiff, any conduct of the defendant which induced the plaintiff to delay bringing the action, the steps taken by the plaintiff to obtain advice, the nature of that advice, and the extent of the plaintiff's loss and damage. 36 The evidence and the judge's findings establish that within a very short time the plaintiff had full knowledge of his injuries, their extent, and their relationship with the assault (s.60E(1)(c), (d) and (e)). The State did nothing to induce the plaintiff to delay bringing his action (para (f)). The reasons for and length of the delay are known (para (a)), and there would be no prejudice occasioned by an extension (para (b)). The plaintiff sustained significant injuries (para (h)), and promptly sought legal advice (para (g)). 37 A number of issues, other than the date of the criminal trial and the acquittal, which one would have expected to be explored by the State were not. These included the plaintiff's purpose in promptly consulting solicitors after the assault, the whole of the advice then received from Mr Hasson and Mr Weller, the nature of the claim or claims for compensation that the plaintiff then believed were available to him, when he first consulted Mr Weller after the trial, the advice he then received, whether he knew, before of after the event, that Mr Weller obtained medical reports in 1998 and the communications he had with Mr Weller before he changed solicitors. 38 The plaintiff waived legal professional privilege by giving evidence about the advice he received from Mr Weller and Mr Hasson and the State could have obtained access to the solicitor's file or files at least until and including his consultations with Mr Hasson in 1999 (Evidence Act s.122(2) and compare Thomason v Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347). 39 Counsel appearing for the State below, who did not appear on the appeal, formulated four issues raised by the State in opposition to the extension. These were the plaintiff's awareness of the existence, nature and extent of the injury and its connection with the defendant's act or omission and whether, as a matter of discretion, the extension should be granted (T 8/11/02 pp 7-8). 40 The matters in s.60E(1) established by the evidence which supported an exercise of the discretion in favour of the plaintiff were the absence of prejudice (para (b)), his prompt action in seeking legal advice (para (g)), and the extent of his injuries (para (h)). On the other hand he was nearly two years and three months out of time when the application for an extension was made. 41 Section 60C(2) enables the Court to grant an extension if it is "just and reasonable to do so". On the artificial basis on which the hearing was conducted the plaintiff, acting not unreasonably on legal advice, waited until the criminal trial concluded before attempting to bring a claim for compensation. The judge inferred that the trial ended between July and October 1999 [para 18]. On that basis the plaintiff got out of time before the criminal trial ended, not because of any lack of diligence on his part, but because of poor legal advice. 42 The concession made below that the State would not be prejudiced if an extension were granted was properly made. The circumstances surrounding this assault were fully investigated before and during the criminal trial. The plaintiff's injuries are objectively established and there has been no claim for any resulting psychiatric disorder or functional overlay. There is every reason for concluding that a fair trial is possible. 43 It should not be thought that bad legal advice or lack of diligence by a plaintiff's solicitors provides an easy road to an extension under s.60C(2) or its equivalent. Ignorance of relevant facts will support an extension, ignorance of their legal significance will not. Lack of legal knowledge is a misfortune, and not a privilege, as McHugh J said in Gallo v Dawson (1990) 64 ALJR 458, 459. Litigants are expected to be diligent in their own interests. 44 In my judgment the critical factor which distinguishes this from a normal case where a plaintiff has been let down by his solicitor, is that a complaint was promptly made on behalf of the plaintiff which led to criminal proceedings against the police officer. The complaint, the plaintiff's willingness to give evidence in the criminal proceedings, and the extent and objective nature of his injuries must have indicated to the Police Department that a civil claim would be made. Such an action would have been expected. In these special circumstances I am prepared, on a re-exercise of the discretion, to extend the limitation period as against the State to permit the filing, against the State only, of the draft statement of claim annexed to the affidavit of Mr Hasson of 24 August 2001. However the extension should be limited to the injuries referred to in the reports of Dr Brian Austin of 23 June and of Dr Ravi of 18 August 1998. Accordingly para 8(c) of the draft statement of claim will be struck out and para (d) limited to the shock experienced in and shortly after the assault and the anxiety felt by the plaintiff referred to on p 2 of the report of Dr Nielssen of 6 August 2001. The following orders should be made: (1) Leave to appeal granted. (2) Notice of appeal to be filed within fourteen days. (3) Order 4 in the District Court set aside and in lieu thereof substitute an order extending the limitation period only for the cause of action against the State of New South Wales pleaded in the draft statement of claim annexed to the affidavit of Mr Hasson of 24 August 2001 subject to the deletion of para 8(c) and to para 8(d) being limited to the shock experienced in and shortly after the assault and the anxiety felt by the plaintiff referred to on p 2 of the report of Dr Nielssen of 6 August 2001. (4) Direct that a statement of claim amended in accordance with Order 3 be filed and served within 28 days. (5) Appeal otherwise dismissed. (6) Appellant to pay the respondent's costs. 45 SANTOW JA: I agree with Handley JA. 46 IPP JA: I agree with Handley JA. 47 I would add that, at the hearing before Nicholson SC DCJ, counsel then appearing for the State formulated what he submitted were the four issues that the application raised for determination. See [39] above. None of these issues raised the reasonableness of the plaintiff's conduct and his explanation for the delay. No submission was made to Nicholson SC DCJ to the effect that leave should not be given because the plaintiff had not prosecuted his case with due diligence or that he made a deliberate decision not to proceed with his claim. As these issues were not investigated below, they could not be used to support an argument on appeal. ********** Last Modified: 12/11/2003 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.