Harlum v State of NSW [2006] NSWSC 443

New South Wales Supreme Court

CITATION : Harlum v State of NSW [2006] NSWSC 443

HEARING DATE(S) : 11/05/06

JUDGMENT DATE : 18 May 2006

JURISDICTION : Common Law Division

JUDGMENT OF : Kirby J

DECISION : 1. The plaintiff suffered from a disability such that the causes of action are not statute barred; 2. The costs should be plaintiff's costs in the cause.

CATCHWORDS : Limitation Act 1969 - extension of time - person under a disability - limitation period for wrongful arrest and malicious prosecution.

LEGISLATION CITED : Limitation Act 1969 Compensation to Relatives Act 1897

Olive & Anor v Johnstone [2006] NSWCA 21 CASES CITED : Kotulski v Attard [1981] 1 NSWLR 115 State of New South Wales v Bennie [2005] NSWCA 172

PARTIES : John Harlum (Plaintiff) The State of New South Wales (Defendant)

FILE NUMBER(S) : SC 2002/20003

COUNSEL : K Andrews (Plaintiff) I D Temby QC/C A Webster (Defendant)

SOLICITORS : W H Parsons & Assocs (Plaintiff) I V Knight, Crown Sol (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUSTICE DAVID KIRBY

Thursday 18 May 2006

2002/20003 JOHN HARLUM v THE STATE OF NEW SOUTH WALES

JUDGMENT 1 KIRBY J: Roy Lawrence Thurgar was a well known criminal. On 20 May 1991, whilst seated in his car, he was shot in the head at point blank range with a high powered shotgun. His murder had the appearance of an execution. 2 On 24 July 1991, the house of Dallas John Harlum (the plaintiff) was surrounded by thirty police. A helicopter was overhead. Mr Harlum was then arrested. On the same day and in the same manner, Mr Garry Nye was also arrested. Both were taken to the Police Centre of Surry Hills. After three days both were charged with the murder of Roy Thurgar and a number of drug offences. 3 In September 1992, the trial of Mr Harlum and Mr Nye began at Katoomba before Justice Wood and a jury. Justice Wood directed a verdict of acquittal in respect of one of the drug charges. On 10 November 1992, both accused were acquitted of murder and the remaining drug charge. 4 On 2 January 2002, a Statement of Claim was issued on behalf of the plaintiff against the State of New South Wales. Damages were claimed for wrongful arrest and false imprisonment, as well as malicious prosecution. The State of New South Wales is responsible, by statute, for the actions of the New South Wales Police Service and the Director of Public Prosecutions. 5 The Crown Solicitor, on behalf of the State, objected that the causes of action were out of time. A Notice of Motion was then filed seeking an extension of time under s52 of the Limitation Act 1969. A companion action by Mr Nye against the State of New South Wales was brought within time. On 16 December 2003, Justice O'Keefe awarded substantial damages to Mr Nye.