State of New South Wales v Steven Charles Radford [2010] NSWCA 276

New South Wales Court of Appeal

CITATION: State of New South Wales v Steven Charles Radford [2010] NSWCA 276 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16 August 2010

JUDGMENT DATE: 28 October 2010

JUDGMENT OF: Beazley JA at 1; Macfarlan JA at 2; Sackville AJA at 3

1. Leave to appeal granted. 2. Appeal allowed. 3. Orders 1 and 2 made by Levy DCJ on 30 October 2009 set aside. In lieu of these orders, the following orders should be made: DECISION: (1) The respondent's statement of claim filed on 26 April 2007 be struck out. (2) The respondent's amended motion filed 9 September 2009 be dismissed. 4. The respondent's application for leave to cross appeal be dismissed with costs. 5. The respondent to pay the State's costs of the application for leave to appeal and of the appeal. 6. The respondent, if otherwise qualified, to have a certificate under the Suitors Fund Act 1951 (NSW).

CATCHWORDS: LIMITATION OF ACTIONS – cause of action founded on an alleged assault by police officers – amendment of pleadings outside limitation period to allege cause of action founded on false imprisonment – whether new cause of action arises out of substantially the same facts for the purposes of s 65(2)(c) of the Civil Procedure Act 2005 (NSW) – adequacy of proposed pleading to enable question to be determined - LIMITATION OF ACTIONS – limitation period applicable to an action for damages for personal injury founded on false imprisonment - LIMITATION OF ACTIONS – claim for aggravated damages founded on alleged assault – whether claim is 'for damages for personal injury" within s 18A(2) of the Limitation Act 1969 (NSW) – whether limitation period is three years – whether claim for exemplary damages can be pursued independently of pleaded claim for aggravated damages