New South Wales Supreme Court CITATION : Burgess v State of New South Wales [2004] NSWSC 241 HEARING DATE(S) : 29 March 2004 JUDGMENT DATE : 31 March 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : I extend the limitation period for the cause of action pleaded in the Statement of Claim up to and including 7 April 2003. The plaintiff is to pay the costs of the Summons. The exhibits may be returned. CATCHWORDS : Extension of limitation period - policeman - psychiatric disorder - delay, explanation for delay and presumptive prejudice. LEGISLATION CITED : Limitation Act 1969, s 60C, s 60E. CASES CITED : N/A Lee Burgess (Plaintiff) PARTIES : v State of New South Wales (Defendant) FILE NUMBER(S) : SC 20084 of 2003 COUNSEL : Mr F Tuscano (Plaintiff) V Hartstein (Defendant) SOLICITORS : Eddelbuttel Law (Plaintiff) I V Knight - Crown Solicitor (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Wednesday 31 March 2004 20084 of 2003 Lee Burgess v State of New South Wales JUDGMENT 1 MASTER: The plaintiff was a policeman. He was born on 28 February 1968 (now 36 years of age). 2 He joined the Police Service in March 1987 (he was then 19 years of age). He served at Taree, Nabiac (where he was the only officer) and Forster. During his service, he experienced a number of distressing situations (including the attending of suicides). This led to unfitness for his work. 3 He ceased working as a policeman in about March 2000. His employment came to an end on 8 February 2002 when he was given a medical discharge. 4 In March 2000, he forgot to return to work after being on leave. Upon returning to work, he had another experience involving a teenager and a suicide. He spoke to colleagues about his symptoms. He then saw a general practitioner (Dr Banks). He was put off work and referred to a psychiatrist (Dr Robertson). In January 2001, he was examined by a psychiatrist for the defendant (Dr Samuel). 5 In or about April/May 2001, he became aware that he had been diagnosed as suffering from post traumatic stress disorder and depressive disorder which was said to arise from the cumulative effect of trauma. 6 He first saw a solicitor on 25 January 2002. Later, he instructed that solicitor (Mr Eddelbuttel) to bring common law proceedings. This took place on 21 February 2003. He commenced these proceedings on 7 April 2003. 7 The proceedings have been brought outside the relevant limitation period. There is difficulty in identifying when it was that his cause of action accrued. Consequently, there is dispute between the parties as to when the limitation period expired. 8 He now seeks an extension of the limitation period. The Notice of Motion was filed on 14 November 2003. The contested application was heard on 29 March 2004. 9 He seeks relief under various provisions of the Limitation Act 1969 (the Act). The most approachable avenue is under s 60C. Under s 60C of the Act, the court may, if it decides that it is just and reasonable to do so, order that the limitation period be extended. Section 60E of the Act provides that in exercising the powers conferred by s 60C, a court is to have regard to all of the circumstances of the case (including to the extent that they are relevant, the circumstances enumerated therein). 10 The plaintiff has sworn an affidavit. He swore a subsequent affidavit which made certain corrections to his first affidavit. His solicitor Mr Eddelbuttel has sworn an affidavit. His solicitor has also sworn a further affidavit. It was corrected in supplementary oral evidence. Both deponents were briefly cross-examined. 11 It is not said that the plaintiff does not have a viable cause of action. In opposing the application, the defendant relies on delay, lack of explanation for the delay and presumptive prejudice. 12 There has been delay. The extent of that delay is somewhat contentious. 13 He was experiencing symptoms from about either the middle or the latter part of 1998. He was having significant symptoms by the end of 1999. There was an escalation in the problems during January – February 2000. It is in or about April/May of that year that the diagnosis of psychiatric disorder was given. 14 He first saw his solicitor in January 2002. The limitation period was then extant. He was given advice as to the limitation period which may have been erroneous or misleading (that he had until 14 March 2003 to commence proceedings – this being three years after the last day he had worked). 15 At that stage, Mr Eddelbuttel had not been retained to act on the plaintiff's behalf. Advice was received from counsel in March 2002 that the claim has some prospects. 16 Instructions were not in fact given until February 2003 (when it was thought that the limitation period was still extant). The evidence suggests that Mr Eddelbuttel may have attempted to actually commence the proceedings before 14 March 2003. Whatever happened, the proceedings were not in fact instituted until 7 April 2003. 17 It is true to say that there have been periods of inactivity preceding the commencement of the proceedings. However, the inactivity is explained. The claim came to be out of time because he acted on the advice that had been given to him by his solicitor. 18 There is no evidence of actual prejudice. It is not said by the defendant that there has been actual prejudice. It relies on presumptive prejudice. I accept that there will be presumptive prejudice. 19 The defendant now says that a fair trial is unlikely. Fairness is a matter of degree and the concept of a fair trial is a relative one. Each case will turn on its own particular circumstances. 20 In the circumstances of this case, I am not satisfied that a fair trial is now unlikely. 21 The plaintiff bears the onus of satisfying the court that the relief sought should be granted. In the circumstances of this case, I am satisfied that such onus has been discharged. 22 Accordingly, I have reached the decision that it is just and reasonable to make an order and that the order sought should be made in this case. 23 I extend the limitation period for the cause of action pleaded in the Statement of Claim up to and including 7 April 2003. The plaintiff is to pay the costs of the Summons. The exhibits may be returned. ********** Last Modified: 04/05/2004 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.