State of New South Wales v Bennie [2005] NSWCA 172

New South Wales Court of Appeal

CITATION: State of New South Wales v Bennie [2005] NSWCA 172

HEARING DATE(S): 18/03/05

JUDGMENT DATE: 23 May 2005

JUDGMENT OF: Giles JA at 1; Bryson JA at 2; Campbell AJA at 3

DECISION: 1. Notice of Motion of 19 November 2002 amended by adding the words "wrongful arrest, wrongful imprisonmen and breach of statutory duty" before the word "negligence" in both paragraphs 1 and 2 thereof; 2. Note the agreement of the parties that the decision of Judge Phelan of 10 April 2004 is to be taken as a decision in relation to the Notice of Motion as so amended; 3. Leave to appeal against the order made under s 60G of the Limitation Act 1969 and the order reserving the costs of the Notice of Motion refused with costs; 4. Grant leave to the appellant to file a Notice of Grounds of Defence and the respondent to file a Reply in terms of the draft documents handed up in Court on 18 March 2005; 5. Order that the issue whether or not the respondent's action was statute barred be determined as a separate issue in the proceedings and in advance of the action; 6. Note the agreement of the parties that the decision of Judge Phelan of 15 April 2004 in respect of the application of s 52 of the Limitation Act 1969 be taken as a decision upon the separate issue in favour of the respondent; 7. Grant leave to appeal against the decision on the separate issue; 8. A Notice of Appeal to be filed within seven days; 9. Appeal dismissed with costs.

CATCHWORDS: Limitation Act 1969 - Finding of "person under a disability" - appeal dismissed - Extension of time - Leave to appeal refused - Practice and Procedure - Pleading of Limitation Act 1969 - Order for trial of separate issue.

LEGISLATION CITED: Limitation Act 1969

Kotulski v Attard (1981) 1 NSWLR 115 CASES CITED: "C" v CSIRO (Master Harrison 19 September 1997 unreported)