Supreme Court New South Wales Medium Neutral Citation: Bowden v State of NSW [2014] NSWSC 87 Hearing dates: 03/05/2013 Decision date: 28 February 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) Order that the Notice of Motion filed 22 January 2013, seeking an extension of the limitation period be heard and determined at the same time as, and together with, the hearing of all other issues in the proceedings. (2) Order that the costs of the Motion be costs in the cause. (3) List the matter for directions on 14 March 2014 at 9am before the Registrar. Catchwords: PROCEDURE - civil - interlocutory issues - limitation of actions - extensions of time - Statute of Limitations 1623 (Imp) - Limitation Act 1969 (NSW) s 58, s 60gG - whether separate question or determination at trial - whether "just and reasonable" to extend time - whether separate determination would best advance the overriding purpose of the Civil Procedure Act 2005 Legislation Cited: Aborigines Protection Act 1909 Civil Liability Act 2002 Civil Procedure Act 2005 Limitation Act 1969 Statute of Limitations 1623 (Imp) Uniform Civil Procedure Rules 2005 Cases Cited: Crawley v Vero Insurance Ltd & Ors [2012] NSWSC 593 Locklier v State of NSW [2009] NSWSC 746 Southwell v Bennett [2010] NSWSC 1372 Thiering v Daly [2011] NSWSC 1345 Zhang v State NSW, Liao v State of NSW, [2012] NSWSC 606 Category: Procedural and other rulings Parties: Cecil Bowden (P) State of New South Wales (D) Representation: Counsel: A Stenmark SC / R Perla (P) J Agius SC / G Mahoney (D) Solicitors: Carroll & O'Dea (P) NSW Crown Solicitor (D) File Number(s): 2012/82874 Judgment 1On 14 March 2012, Cecil Bowden commenced proceedings in this Court by filing a Statement of Claim against the State of New South Wales. In that Statement of Claim, Mr Bowden claimed damages for personal injury, sustained as a consequence of being forcibly removed from his family as a child, for false imprisonment, and for the consequences of treatment he received whilst a resident of the Bomaderry Children's Home ("Bomaderry") and Kinchella Aboriginal Boy's Home ("Kinchella") between 1943 and 1958. 2At the time of the commencement of proceedings, Mr Bowden was 72 years old, having been born late in 1939. Factual Background 3The plaintiff's father, Cecil, was a member of the Australian Imperial Forces engaged on military service throughout World War II. Tragically, in 1941, when the plaintiff was about 19 months old, his mother died. Initially he was cared for by relatives and ultimately, at the start of 1942, his aunt, Edith Coe, who was his father's brother's wife, was granted custody of Mr Bowden and his sister Florence, by the Aborigines Welfare Board ("the Board"). He was very well cared for by Edith and her family. 4When the plaintiff was a little over 3 years old, as a consequence of a decision by the Acting Secretary of the Board, he was removed from Edith's care and that of her family, and taken to live at Bomaderry. There he remained until he was a little over 10 years of age. 5Although his father returned from war service in 1945, and attended at Bomaderry to seek the release of the plaintiff into his care, together with his brother, his father was not permitted to take him back into his care and custody. 6In 1950, when the plaintiff was about 10 years old, he was transferred from the Bomaderry to Kinchella. There he remained until 1958. When he was released from that Home, he apprenticed as a trainee plumber, and lived at a student hostel in Sydney. The Plaintiff's Claim 7The plaintiff alleges in his Statement of Claim, that during his time at Bomaderry and at Kinchella, he was not provided with adequate food, medical treatment when necessary, clothing and shoes, and was regularly excessively physically punished, not just by the staff of the institutions, but also by his fellow residents, who were acting under the instructions of the staff. 8As well, he alleges that he was lied to about his father because he was told that his father had died, when in fact his father was alive. He further claimed that his enforced separation from his father, his siblings, the family with whom he had lived and other members of his extended family, was a feature of his time as a resident of the institutions, and was unlawful and wrong. 9The plaintiff alleges that the decision to remove him from the custody of Edith's family was of such poor quality as to constitute a breach of statutory duty by the Board which, he alleges arises under the Aborigines Protection Act 1909 (as amended), and which constituted a breach of such a kind that he has an entitlement to damages. 10The plaintiff alleges that because the Board failed to make due enquiries, and satisfy itself that it was in his best interests to be removed from the care and custody of Edith's family, it and its members' conduct in deciding to remove him and then forcibly removing him, from Edith's family and committing him to institutional care, constituted misfeasance in public office, for the consequences of which he is entitled to damages. 11The plaintiff alleges that his residence between 1943 and 1958, first at Bomaderry and then at Kinchella, constituted false imprisonment by the State. As well, the plaintiff alleges that the conduct of the Board and its members constituted negligence. 12Insofar as the plaintiff alleges that his treatment and conditions of residence was wrongful, he alleges that the Board, for which the State is vicariously liable, was itself vicariously liable for the conduct of the managers and staff of the institutions at which he was resident. He alleges that the conduct of the managers and staff of those institutions constituted negligence, and a breach of duty owed to him. 13Finally, he alleges that to the extent that the conduct, particularly the physical punishment of him whilst he was at Kinchella, which consisted in part, so he alleges, of: (i)refusing to give him meals, instead giving him only bread and water; (ii)forcing him to kneel with his bare knees on a coal stack and hold a log above his head for hours at a time; (iii)forcing him to "walk the line" whereby the other residents were required to beat him as he walked past them; (iv)being stripped naked and flogged by a staff member; (v)locking him in a 4x4 metre shed for periods of up to several days, were intentional acts committed by employees of the State which constituted a trespass to his person, the State is vicariously liable, for all of that conduct. 14The plaintiff alleges that as a consequence of his treatment at these institutions, he has suffered loss and damage of a complex kind. He alleges that he has been disconnected from, and lost, his connection with his Aboriginal identity, heritage and culture; he alleges that he has been deprived of the care, love, companionship and affection of his family and, in particular, that he has been unable to develop a relationship with his father, who died only a few years after the plaintiff ceased to reside at Kinchella. 15He alleges that he has developed psychiatric injury by way of a post-traumatic stress disorder, alcohol dependence and anti-social personality traits, which have had complex consequences. The plaintiff acknowledges that he has spent a substantial proportion of the years between 1959 and 1976 in prison as a consequence of having engaged in various forms of criminal behaviour. He says, however, that this conduct and the consequences of his criminal conduct, were the result of the treatment which he received at the two institutions. 16A further claim which the plaintiff makes is that, as a consequence of his psychiatric injury and the uncontrollable anger and aggression which he developed as a result, combined with his distrust of the police which he developed as a consequence of his complex history, he committed a criminal offence in 1989 - namely the manslaughter of his daughter's de facto husband, for which he was imprisoned. He claims that but for his injury, this would not have occurred. 17The plaintiff's claim is ultimately, although expressed in a variety of ways for damages, calculated in accordance with provisions of the Civil Liability Act 2002. The State's Defence 18On 30 November 2012, the State of NSW filed a Defence. 19It is unnecessary for the purposes of this judgment to review the Defence in detail, it is sufficient to record that it makes various admissions about matters of fact and law, and puts in issue, either by non-admission or denial, various other matters of fact and law. In short, the State denies any liability to the plaintiff and denies that those organisations or individuals for whom the State is vicarious liable, engaged in conduct of the kind pleaded by the plaintiff. 20The final paragraph of the defence is in the following terms: "In further or alternative answer to the whole of the Statement of Claim, the defendant says: (a) these proceedings were commenced after the expiry of the limitation period for the cause of action of the plaintiff under the Statue of Limitations 1623 (imp) or the Limitation Act 1969 (NSW), and in consequence is not maintainable against it; (b) the cause of action of the plaintiff is further subject to the ultimate bar under s 51(1) of the Limitation Act 1969 (NSW)." Present Notice of Motion 21On 22 January 2013, the plaintiff filed a Notice of Motion which sought orders in the following terms: "1. The limitation period in respect of the plaintiff's claim in these proceedings be extended to 14 March 2012, pursuant to s 58 of the Limitation Act 1969 (NSW). 2. In the alternative, the limitation period in respect of the plaintiff's claim in these proceedings, be extended to 14 March 2012 pursuant to s 60G of the Limitation Act 1969 (NSW). 3. The costs of this Notice of Motion be costs in the cause." 22The parties are at issue as to the appropriate time for the hearing of the Notice of Motion, namely, whether the Notice of Motion seeking an extension of the limitation period should be heard separately and in advance of the final hearing as the State contended, or whether it should be heard at the same time, and together with, all evidence adduced on the final hearing, as the plaintiff contended. As a consequence of this issue, the Registrar of the Common Law Division referred the disputed issue for hearing. 23Counsel were asked at the hearing of the Motion about the estimated length of hearing of the Motion for extension and also the principal proceedings. The submissions of both counsel suggested that a separate hearing of the limitation issue could be heard and disposed of in a period of less than a week, probably around three days. Senior counsel for the defendant submitted that a full hearing of all issues would take about four weeks or so. Both counsel indicated that these were necessarily estimates and were not to be regarded by the Court as generally accurate. 24In making any order dealing with whether the limitation issue should be heard before the principal proceedings, the Court is exercising its powers of case management and giving case management directions. As well, a power to order the separate determination of the issue of extension of time is contained in Part 28 of the Uniform Civil Procedure Rules 2005. 25Section 56 of the Civil Procedure Act 2005, requires that the Court must seek to give effect to the overriding purpose of the Civil Procedure Act and the UCPR when it exercises any power, such as giving directions for the purpose of case management. 26The overriding purpose of the Civil Procedure Act and the UCPR in their application to civil proceedings: "... is to facilitate the just, quick and cheap resolution of the real issues in the proceedings." 27As well, s 57 of the Civil Procedure Act obliges the Court when engaged in case management to have regard to the objects which are there listed, namely: (a)the just determination of the proceedings; (b)the efficient disposal of the business of the Court; (c)the efficient use of available judicial and administrative resources; and (d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties. 28It is then necessary to turn to the submissions of the parties. The Plaintiff's Submissions 29The plaintiff submits that in the circumstances of this particular case, the applicable principles as to whether the limitation issue should be heard first, and before the final hearing of all other issues, are those contained in authorities dealing with r 28.2 of the UCPR. 30The plaintiff pointed to the principles set out in Thiering v Daly [2011] NSWSC 1345 at [19]-[27]; see also Crawley v Vero Insurance Ltd & Ors [2012] NSWSC 593 at [13]-[20] per Beech-Jones J; Southwell v Bennett [2010] NSWSC 1372 at [15] per Hallen AsJ (as his Honour then was). 31In short, the plaintiff' submitted that it was not in the interests of justice for the matters to be heard separately because of the following: (a)Mr Bowden's age and the undesirability of his giving evidence and being cross-examined on more than one occasion about matters which have caused, psychological injury and distress; (b)the fact that psychiatric evidence from the same psychiatrists will be necessary to be called at both hearings, because such evidence would be relevant to both a limitation question and to the substantive issues. Such psychiatric evidence would necessarily overlap between all questions and could not be neatly divided into separate issues; and (c)that the cost, expense and delay of having two hearings was not justified; 32The plaintiff also pointed to the general undesirability of hearing any issues separately. The Defendant's Submissions 33The defendant submitted that the appropriate time for the hearing of the application to extend the limitation period was separately from the principal proceedings and in advance of the principal proceedings. 34The defendant accepted that the authorities relating to r 28.2 of the UCPR, and the exercise by the Court of the powers set out in that rule, were the appropriate ones to apply. The defendant submitted that s 56 of Civil Procedure Act, is in these proceedings best achieved by the Court ordering the hearing of the plaintiff's limitation motion as a separate issue. 35The defendant's submission was based upon the proposition that having regard, in the particular circumstances of this case, to the length of period which has in fact passed since the events relied upon, the plaintiff's claim is clearly statute barred unless the plaintiff can establish that there is a proper basis for an extension of time. The defendant described this as a "threshold matter" and submitted that it should not be put to the cost and expense of preparation for a final trial, nor should the litigation be allowed to continue in the Court, unless and until the plaintiff had satisfied the Court with respect to such a "threshold matter". 36The defendant pointed to an extract of a decision of Davies J in Locklier v NSW [2009] NSWSC 746 at [43], as indicating the nature of the underlying evidentiary, factual and legal issues involved in an application for an extension. 37It is useful here to set out what his Honour there said: "43. On an application under s 60G it is generally accepted that there are three matters which must be proved to the satisfaction of the court by the applicant for an extension. The first of these is a compliance with what have been called the gateway provisions in s 60I(1). The second is evidence that the Plaintiff has a case to advance in relation to the cause of action sought to be brought. The third is the notion derived from the words "just and reasonable" in s 60G(2) which ordinarily involves the consideration of whether a fair trial is possible in the circumstances of the delay. This is sometimes discussed in terms of prejudice to the defendant from the delay but prejudice engendered by delay and fairness at trial were said not to be distinctly differing tests: BHP Steel (AIS) Pty Ltd v Lakovski [2000] NSWCA 334 at [9], Holt v Wynter (2000) 49 NSWLR 128 and Dow Corning Australia Pty Ltd v Paton (unreported, Court of Appeal, 24 April 1998)." 38Addressing these matters, the defendant submitted that in the substantive case the issues would travel beyond those encapsulated by the issues in the limitation question, and therefore the plaintiff should be required to address that question first. 39The defendant submitted that it would be obvious, having regard to the period which had transpired since the events in question took place, that many of the people involved in the decisions with respect to the removal of the plaintiff and his transfer either to Bomaderry or else from there to Kinchella, would be either deceased, or else at a very advanced age and unable to give evidence, and that it was thereby prejudiced. 40The defendant submitted that it would be very likely that any defence to the principal claim would be largely a documentary based case with limited (if any) defence witnesses available to give evidence orally. However, the defendant went on to point to this as a factor which weighed in its favour in the balance of hearing the limitation issue first. 41In particular, the defendant submitted that having regard to the age of the matter, and the nature of the allegations, it would be necessary for both parties to engage an expert, such as an anthropologist or an historian, to consider the culture and standards of the time, and the application of policy, and consideration of issues being undertaken at the appropriate time. The defendant submitted that this was not a matter required on a limitation motion. 42As well, the defendant contended that there were strong factors that would support that it was so prejudiced in the defence of the claim by the passage of time that the plaintiff's prospects of success in obtaining an extension of the limitation period, were weak. 43The defendant also contended that it was the practice of the Court to hear limitation questions separately. In that respect, the plaintiff pointed to what was said by Schmidt J in Zhang v State of NSW, Liao v State of NSW [2012] NSWSC 606 at [10], where Schmidt J said: "10. It is now common ground that it [limitation defences] ought to be decided prior to the hearing ... " 44Having carefully read the decision, it is appropriate to say that it is obvious that the statement made by Schmidt J was not a reference to a common practice in the Court, but was rather a reference to the common ground between the parties in that case with respect to that issue in that matter. 45It is not the common practice of the Court to hear limitation issues separately. The question of whether a limitation issue is heard separately and in advance of a final hearing, is a matter which depends upon all of the facts, matters and circumstances in each individual case, and the application of the principles of proper case management. Discernment 46In establishing that an extension of a limitation period should be permitted, a plaintiff must, amongst other things, establish that it would be just and reasonable to extend time, at least where s 60G of the Limitation Act 1969 is concerned. The phrase "just and reasonable" is one which is not susceptible of confinement to only one or two factors. 47It is apt to include at least the following: (a)the nature and extent of prejudice suffered by the defendant if it was required to prepare for and conduct a final hearing; (b)whether any trial of the substantive proceedings would be likely to be fair; (c)whether the applicant for an extension had demonstrated that there was material which, if proved, and accepted, would be sufficient to make out each of the causes of action; and (d)whether the nature, seriousness and importance of the issues raised in the principal claim, and the size of the claim made, was proportionate to exposing the defendant to a final hearing of the proceedings having regard to all relevant matters such as cost, prejudice and the like. 48As well, when considering whether the issues should be dealt with separately, the Court is entitled to have regard to the interests of justice. Again, it is not appropriate to regard this as a term of limitation but, rather, a question of what in the particular circumstances of the case, would be relevant in assessing those interests. 49It is unnecessary to recite the principles contained in the authorities referred to in [30] above, they are well-known. However, there are a number of matters in Southwell to which Hallen AsJ pointed which, if I may say with respect to his Honour's wisdom, I would think appropriate to be applied in this case. 50First, the order with respect to when issues should be heard, and if any issue should be heard separately, is a discretionary matter, which discretion must be exercised judicially but cannot, and is not, otherwise to be fettered. 51Secondly, as a general rule the discretionary power to order separate determination of a question should be approached with caution because generally all questions of fact and law should be determined at the one time. 52Thirdly, where there is likely to be significant overlap between the evidence adduced on the hearing of the separate question and at trial, possibly involving the calling of the same witnesses at both stages of the hearing of the proceedings, then that factor tells against the making of an order which would separate any issues. That is at least for the reason that there is always a risk of inconsistent findings arising from the determination of separate questions. 53Finally, one matter which may also be particularly relevant in this case, having regard to the plaintiff's age, is whether, if there is a separate hearing of the limitation issue, there is room for applications for leave to appeal against that decision, or of the exercise of rights of appeal against that decision which then have the consequence that the hearing is delayed for longer than it otherwise might be. 54I am satisfied that the overriding purpose of the Civil Procedure Act, and the interests of justice, are best fulfilled by ordering that all of the issues in the proceedings be heard together at the same time. 55Accordingly, I am not prepared to make the order sought by the defendant, namely, that the limitation issue be heard separately from, and in advance of, the final hearing of the proceedings. 56The matters which I regard as of relevance and importance to this decision include the following: (a)the advanced age of the plaintiff and the undesirability in his interests, having regard to the particular issues involved and the claims which he makes, of being cross-examined twice by the defendant on the same or closely related issues; (b)having regard to the nature of the injuries claimed by the plaintiff, namely, psychiatric and psychological injury, and the inability to clearly distinguish issues upon which psychiatric experts will need to give evidence between the limitation issue and the substantive issues, the psychiatric experts would need to give evidence twice on similar issues, and there is a risk that their evidence, particularly having regard to its complexity, would be the subject of different and perhaps conflicting findings; (c)a combined hearing of the extension of the limitation issue and the final hearing is likely to provide a more efficient use of judicial resources, than if the issues are heard separately; and (d)whilst it can be expected that the defendant will be prejudiced in the presentation of a defence of the claim by reason of the absence of witnesses, and perhaps documents, the time at which such prejudice can be best assessed is at the conclusion of a hearing of a trial. 57I make the following orders: (1)I order that the Notice of Motion filed 22 January 2013, seeking an extension of the limitation period be heard and determined at the same time as, and together with, the hearing of all other issues in the matter. (2)I order that the costs of the Motion be costs in the cause. (3)I list the matter for directions on 14 March 2014 at 9am before the Registrar. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 February 2014