STATE OF NSW v MULCAHY [2006] NSWCA 303

New South Wales Court of Appeal

CITATION: STATE OF NSW v MULCAHY [2006] NSWCA 303 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12/07/2006

JUDGMENT DATE: 3 November 2006

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 2; Bryson JA at 3

DECISION: See para [32]

CATCHWORDS: PRACTICE and PROCEDURE - amendment - plaintiff sued State for assault, false imprisonment and other claims after being arrested charged tried and acquitted for armed robbery - plaintiff did not sue until some of police admitted fabrication in Police Integrity Commission about 11 years after arrest - claims were time-barred and he wishes to rely on Limitation Act s.55 (fraudulent concealment) - after complex events in litigation, District Court allowed amendment of Statement of Claim to restore some counts earlier abandoned - State sought leave to appeal on grounds which included that it is beyond argument that the plaintiff could not succeed, because of the time bar - the Court of Appeal was of opinion that plaintiff's proposed Reply to time bar relying on s.55 and or estoppel was not unarguable, required redrafting of the Statement of Claim but refused leave to appeal. Consideration of claims of prejudice and other grounds for opposing amendment. Consideration of Queensland v J L Holdings and amendment under Civil Procedure Act 2005

Law Reform (Vicarious Liability) Act 1983 (NSW) District Court Rules 1973 (NSW) Pt.9 r.9(2) Uniform Civil Procedure Rules 2005 (NSW) District Court Act 1973 (NSW) s.44(1) LEGISLATION CITED: Law Reform (Law and Equity) Act 1972 (NSW) ss. 5 and 6 Supreme Court Act 1970 (NSW) s.51(2) Civil Procedure Act 2005 (NSW) ss.56, 57, 58, 64(2) Federal Court Rules Order 13 r.2 Limitation Act 1969 (NSW) ss.14, 18A, 55, 60G