Rogers v Rogers [2005] NSWSC 807

New South Wales Supreme Court

CITATION : Rogers v Rogers [2005] NSWSC 807

HEARING DATE(S) : 5/8/05

JUDGMENT DATE : 5 August 2005

JUDGMENT OF : Bell J at 1

DECISION : Proceedings dismissed generally, pursuant to the provisions of Part 13 rule 5.

Limitation Act 1969 LEGISLATION CITED : Supreme Court Rules 1970

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 CASES CITED : Hahn v Conley (1971) 126 CLR 276 Hillbrand v Penrith Council [2000] NSWSC 1058

Grahame Andrew Rogers (Plaintiff) PARTIES : Edward-Barrington Rogers (Defendant)

FILE NUMBER(S) : SC 20343/04

In person (Plaintiff) COUNSEL : No appearance (Defendant)

In person (Plaintiff) SOLICITORS : Marsdens Law Group (Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Friday 5 August 2005

20343/04 Grahame Andrew Rogers v Edward-Barrington Rogers

JUDGMENT 1 BELL J: These proceedings were commenced by statement of claim forwarded by post and received in the Registry on 27 September 2004. By this claim, the plaintiff asserted that between 1957 and 1973 the defendant, who is his father, had physically and psychologically abused him and that, as a result of this abuse, he had become a criminal, rather than a law-abiding citizen. He claimed $250,000 in damages. 2 By motion filed on 24 May 2005 the defendant sought orders, including that the plaintiff's claim be summarily dismissed. The motion came on for hearing before Studdert J. His Honour struck out the statement of claim on 22 April 2005. His Honour observed, at paragraph 16: "Not without some hesitation I have concluded that the plaintiff should be given a further opportunity to replead his statement of claim and at the same time be given an opportunity to apply to the Court for an extension of time under the Limitation Act . Any such application would have to be supported by an affidavit addressing the gateway provisions to the grant of an extension of time. The plaintiff would have the extremely formidable task of establishing that this Court should now extend the time for bringing proceedings where the cause of action, if there be one, arose so many years ago." 3 The orders that his Honour made included that the plaintiff have leave to file a further statement of claim within a period of twenty-eight days from 22 April 2005 and that any application pursuant to the Limitation Act 1969 and supporting affidavits be filed and served within twenty-eight days from that date. The motion was adjourned to 3 June 2005. 4 On 10 May 2005 the plaintiff filed a statement of claim pursuant to the grant of leave to which I have referred. He also filed a document titled "Application pursuant to the Limitation Act". In an affidavit he requested leave to bring a claim against his father, as set out in his statement of claim. He stated: "It's true it has taken me some 30 years past the proper time for bringing my claim and I ask that the Court consider the circumstances set out here: