Azshion v North Coast Area Health Service

[2006] NSWSC 769

CITATION:	Azshion v North Coast Area Health Service [2006] NSWSC 769
HEARING DATE(S):	6/07/06
JUDGMENT DATE :	14 August 2006
JURISDICTION:	Common Law Division Professional Negligence List
JUDGMENT OF:	Kirby J
DECISION:	(1) That the plaintiff be given an extension of time in respect of the remaining causes of action until 1 January 2004; (2) That the name of the defendant be amended from Northern Rivers Area Health Service to North Coast Area Health Service; (3) That the defendant be given leave to file an Amended Defence raising justification (and providing appropriate particulars); (4) That costs be reserved.
CATCHWORDS:	Applications re limitations and extension of time - action for false imprisonment - whether action for breach of duty s18A Limitation Act - 3 year limitation - application to extend time - plaintiff under disability for part of period - previous refusal to extend time for another cause of action (negligence).
LEGISLATION CITED:	Limitation Act 1969 Mental Health Act 1990 Property (Relationships) Act 1984 Limitation of Actions Act 1958 (Vic) Limitation Amendment Act 1990 Compensation to Relatives Act 1897
CASES CITED:	O'Neill v Foster (2004) 61 NSWLR 499 Stingel v Clark [2006] HCA 37 Kotulski v Attard [1981] 1 NSWLR 115 Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497 Carnegie v The State of Victoria & Ors (unreported, 14.9.89)
PARTIES:	Craig Azshion (Pl) North Coast Area Health Service (Def)
FILE NUMBER(S):	SC 20047/04
COUNSEL:	In Person (Pl) M Windsor (Def)
SOLICITORS:	In Person (Pl) F Allpress (Def)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

DAVID KIRBY J

Monday 14 August 2006

20047/04 CRAIG AZSHION v NORTH COAST AREA HEALTH SERVICE

JUDGMENT (on applications re limitations and extension of time)

1 KIRBY J: I have before me two Notices of Motion relating to an action by Mr Craig Azshion (plaintiff) against the North Coast Area Health Service (the defendant) ("the Health Service"). The first Notice, issued by the defendant, seeks orders that may be summarised as follows:

· First, an order that the name of the defendant be changed from "Northern Rivers Area Health Service" (being a previous name of the defendant) to "North Coast Area Health Service".

· Secondly, that the plaintiff's claim be struck out as statute barred by reason of s18A of the Limitation Act 1969.

· Thirdly, that the plaintiff pay the defendant's costs.

2 There is obviously no controversy concerning the first order. The Notice of Motion, as originally framed, also sought orders under Pt12 r12.7 (dismissal of proceedings for want of prosecution) and Pt14 r14.28 (striking out pleadings where they disclosed no reasonable cause of action). However, the defendant did not press either claim.

3 The second Notice of Motion was filed by the plaintiff. It is contingent upon the defendant's success in the first. Were the Court to accept that the action is statute barred, the plaintiff seeks an extension of time, relying upon s52(1) and s60C of the Limitation Act 1969.

4 The matter has a long history. It may be an advantage, before dealing with the issues, to describe that history. I will assemble the evidence following a broad chronology, drawing upon material filed by either the plaintiff or the defendant. The defendant relied upon the hospital notes of the Richmond Clinic, a psychiatric unit attached to the Lismore Base Hospital (Exhibit 1). Mr Azshion asserted that these notes were, in many respects, false. I have not, on this application, investigated that issue.

Background.

5 Mr Azshion was born in May 1964, so that in 1997 he was 33 years old. He lived with his parents in Mullumbimby. At approximately 10.30 am on 7 December 1997, he was arrested by two police officers. He was forcibly taken to the Richmond Clinic. The hospital notes include a request under s24 of the Mental Health Act 1990, signed by Sgt Denis Schagen of Brunswick Heads Police. The request is for the admission of an allegedly mentally disturbed person to a psychiatric hospital. It is a printed form in which Sgt Schagen asked the Richmond Clinic to admit the plaintiff in that he:

"is mentally disturbed, and FURTHER that I have reason to believe when apprehended he

* was committing or had recently committed an offence, and would benefit from being dealt with under the Mental Health Act, rather than otherwise in accordance with law."

6 Mr Azshion alleges that, once at hospital, the following took place, as described in the Statement of Claim:

"... the 2 Nurses instructed assistance from the 2 NSW Police Officers and all four forcibly restrained to the floor of a seclusion room of Richmond Clinic and I.M. injected the Plaintiff with 2 neuroleptic drugs in name and quantity of: 100mg Cloxipol Acuphase and 10mg Hypnovel. This was done without conducting a doctor's examination; without obtaining the Plaintiff's consent, and against the verbal and physical response by the Plaintiff."
After I.M. injecting the Plaintiff; the 2 male Nurses and 2 NSW Police Officers departed and locked the Plaintiff in the seclusion room. In a reckless act of endangerment to the Plaintiffs life there was no check to the Plaintiffs condition for a time of a further 4 hours 30 minutes."

7 Nursing notes, said to have been made on the day of admission, incorporated the following history, disputed by Mr Azshion:

"Brought to unit by police (Section 24) after they had been called to his parents' residence where Craig abodes following a call of assistance by C's parents. C had altercation, physical + verbal with his father Carl after parents had tried to encourage him to seek help for what they considered a 'mental' problem that C was suffering from. They had been in contact with Warren Shaw on ? Friday or Saturday seeking help for their son and when they confronted Craig about this on Saturday he became aggressive towards his father culminating in physical aggressive outburst today 7/12. Fearing for their safety they called the police."

8 According to the same notes and again, no doubt, disputed by Mr Azshion, Mr Azshion's parents provided nursing staff with a history that their son had, for about four years, acted in a grandiose manner, believing he deserved to be in Government or on Government boards. They said that he was very paranoid and suspicious, such that if you disagreed with him, you were immediately said to be part of a conspiracy against him. However, they acknowledged that their son had never previously been admitted to a psychiatric clinic.

9 The same notes included findings said to have been made by the nursing staff when they examined Mr Azshion. He asserted that they were breaking the law, an assertion which he still maintains. According to the same notes, he is alleged to have made grandiose statements suggesting that he was President of the Republic.

10 The hospital notes also include a medical report of Dr Lipscomb of 8 December 1997. The history recorded by Dr Lipscomb is similar to that set out above. His report also included the following observations:

"Totally insightless. Aggressive and argumentative. Suspicious & uncooperative."

11 Dr Lipscomb reached the following conclusion:

"Escalating paranoia in a man who has probably been delusional for some years. Requires urgent assessment and stabilisation of his psychotic condition."

12 Mr Azshion, in the Statement of Claim, asserted that, following an intramuscular injection on 8 December 1997, he suffered a "dystonic reaction of which symptoms were of a Aphasia TIA Stroke". He said that the symptoms from that stroke and his treatment at the clinic continued until the first part of 1999. The symptoms included confusion, lethargy and various other mental problems.

13 Returning to the notes of the Richmond Clinic, they included a certificate of Dr Glen Fuller, a psychiatrist, dated 12 December 1997. The certificate was in these terms:

"This man has been mentally ill for many years with a well systematized persecutory and grandiose delusion which involves government, the ABC and others. Prior to this admission he became threatening and aggressive to his parents. He has no insight at this stage but is starting to respond to medication.
A psychotic man who requires a Community Treatment Order on discharge."

14 The same notes included many references by nursing staff to delusions that Mr Azshion continued to entertain during his time at the clinic.

15 By 13 December 1997, Mr Azshion was reported as "settled" and "medication compliant". Plans were made for his discharge under a community treatment order ("CTO"). Later the same day the notes recorded the following:

"No insight, fixed delusional beliefs. Still wants to expose tape on ABC. Pleasant and appropriate otherwise."

16 Mr Azshion was discharged on 16 December 1997. His emotional state was described as "settled". His mental state was said to involve "fixed delusions". The diagnosis was chronic schizophrenia. The case manager added the following comment:

"First admission on 6/12 CTO - depart co-operative, but persistent fixed beliefs + will attempt to prove these ideas."

17 According to Mr Azshion, his release from hospital was contingent upon his agreeing to submit to a community treatment order. Such an order can only be made upon application to a Magistrate under Division 2, Part 2, Chapter 4 of the Mental Health Act 1990. An application was prepared by Dr Fuller, psychiatrist. Dr Fuller sought the order "to treat chronic psychoses; aid to insight", there being "as yet no insight". Mr Azshion was reported as having agreed to such an order. The hospital notes incorporated a form signed by a Magistrate, who apparently came to the hospital and conducted some form of hearing where Mr Azshion appeared. The Magistrate then authorised Mr Azshion's discharge from hospital, subject to a community treatment order. The order was expressed to run for six months.

18 Mr Azshion regarded the community treatment order as the price he had to pay to secure his release from hospital. Under its terms he was required to accept treatment whilst ever it was current, including medication. He believes such treatment adversely affected him. The treatment continued until mid 1998.

19 On 3 August 1998, Mr Azshion wrote to solicitors (Firths) in Surfers Paradise. The solicitors responded on 5 August 1998 stating that they were not able to assist him. It may be inferred that, as at August 1998, Mr Azshion believed that he had been falsely imprisoned by the Richmond Clinic and assaulted by staff in administering injections and otherwise. He also believed, no doubt, that the assaults continued during the currency of the community treatment order.

20 On 25 February 1999, Mr Azshion spoke to a solicitor with the Legal Aid Commission. He was told that the Commission required the clinical notes of the Richmond Clinic before providing advice. He wrote on the same day to the Richmond Clinic seeking a copy of the hospital and clinical notes under the Freedom of Information Act 1989.

21 One gathers from the documentation annexed to Mr Azshion's affidavit that the Richmond Clinic provided what was described as "an Advice Sheet". He was told by the solicitor at the Commission that it was not sufficient. The notes were required. He was told to press his claim under the Freedom of Information Act. Again, he wrote to the Richmond Clinic. On 28 June 1999, the person in charge of Medical Records wrote to Mr Azshion in these terms:

"We refer to your recent request for copies of your medical records.
Dr Fuller has indicated that he would like to go through the records with you personally at a time to be arranged. Could you please contact his office at Community Mental Health to arrange a suitable time.
We enclose your money order for $30. If you have any further concerns please do not hesitate to contact us at Lismore Base Hospital."

22 Dr Fuller, the treating psychiatrist, wrote a letter to the Medical Records Librarian on 6 July 1999 which was in these terms:

"Re Request For Medical Records.
This man suffers from a paranoid (psychotic) illness - according to the local CMHT Craig is currently not taking necessary medication. Access to his records should be delayed until he is once more in treatment and well."

23 On 20 August 1999, Mr Azshion saw Dr Taylor. Dr Taylor reported back to the Richmond Clinic in terms which were recorded as follows:

"P/C from Dr Taylor saw Craig 18.8.99 at Medical Centre. Craig has accessed his file from LBH through Freedom of Information. Dr Taylor was sent the notes & requested to read them to Craig & attempt to hold on to them. Craig became quite forceful & Dr Taylor had to hand over the notes. Dr Taylor has informed Lismore of same. Currently Craig remains quite unwell and grandiose. Believes he will be the new President of Aust Republic & he will get lots of money for suing the Health Service."

24 Having obtained the notes, the Legal Aid Commission invited Mr Azshion to complete an application for aid so that his claim could be assessed. On 20 September 1999 it wrote to Mr Azshion in these terms:

"Aid is not available for this type of matter unless the applicant is a person 'at special disadvantage' as defined in the policy document.
Please provide full submissions to show that:-
(i) the applicant is a person with a substantial psychiatric condition, developmental disability, intellectual impairment or physical disability; and that
(ii) as a result of such condition, impairment or disability they have substantial difficulty in dealing with the legal system.
You should provide appropriate medical evidence but this is NOT an authorisation to incur expenditure at the Commission's expense for that purpose."

25 Mr Azshion, however, insisted that he was not a person with "a substantial psychiatric condition". Indeed, he believed that he had never suffered from a psychiatric condition, and had therefore been wrongly incarcerated and treated as though he were psychiatrically disturbed. That, essentially, is the foundation of his complaint. On 17 February 2000, the Legal Aid Commission wrote to Mr Azshion stating that, in the circumstances, it could not assist.

26 On 19 January 2001, Mr Azshion wrote to the Law Society seeking its assistance in prosecuting his claim. On 25 January 2001, the Law Society responded that its pro bono scheme did not extend to professional negligence and personal injury matters. It therefore could not provide assistance. Mr Azshion also approached many legal firms, including Abbott Tout, Allen Allen & Hemsley (as they were once known) and Marsdens. Again, he was unable to obtain assistance.

27 It was in these circumstances that Mr Azshion attempted to draft the Statement of Claim himself. It was ultimately filed on 18 December 2003, six years and nine days after his arrest and admission to the Richmond Clinic.

Court Applications.

28 Unsurprisingly, the Statement of Claim did not conform with the Supreme Court Rules. The defendant applied, on Notice of Motion, to have it struck out. The application, as it happened, came before me on 6 August 2003. Mr Azshion represented himself. He identified, with some precision, his complaints against the defendant. He was ultimately given a further opportunity to incorporate these allegations into an acceptable pleading.

29 Mr Azshion approached the Bar Association in the hope that, under its pro bono scheme, he may be provided with assistance in formulating the Statement of Claim. However, again, he did not fit within the guidelines of their particular scheme. He therefore prepared a further draft himself.

30 The Amended Statement of Claim identified four causes of action. The first was for false imprisonment, the second in trespass (being assault), the third negligence and, finally, he alleged breaches of statutory duty under the Mental Health Act. The defendant filed its Defence on 14 April 2005 asserting that the causes of action (if any) accrued on 7 December 1997 and were statute barred under the Limitation Act 1969. On 20 April 2005, Mr Azshion responded by filing a Notice of Motion seeking an extension of time.

31 The Notice of Motion came before Bell J on 3 June 2005. Mr Azshion represented himself. The defendant was represented by counsel. In the course of the hearing, counsel for the defendant made a concession which her Honour recorded in the judgment she gave later that day. Her Honour said this: (p2)

"The causes of action in false imprisonment, trespass and breach of statutory duty each have a limitation period of six years. On one view these causes of action were barred some 11 days before the present proceedings were commenced. The defendant does not take any point with respect to the limitation period for these causes of action. In this respect, although there is no evidence as to the applicant's mental state as at 7 and 8 December 1997, the defendant acknowledges that it would be appropriate for the Court to approach the matter upon the basis that the applicant was under a disability, at least during the period in which he was detained pursuant to the provisions of the Mental Health Act 1900 as an involuntary patient and it may be for a little time thereafter."

32 Mr Azshion's application for an extension was therefore directed to his claim in negligence, in respect of which there was a three year limitation period under s18A of the Limitation Act. In the course of argument, her Honour invited Mr Azshion to respond to the arguments put on behalf of the defendant, which she helpfully summarised in these terms: (T10)

"Mr Azshion, courts are reluctant to make orders precluding persons from litigating a cause of action if there are any reasonable prospects of the matter succeeding. I think Miss Burke very fairly has drawn my attention to the fact that you have put on some material to show that you have made endeavours to obtain legal representation. The matter that troubles me is this. To the extent that you are bringing an action against the defendant in negligence, I think you do understand that it would be necessary in order to succeed in such a claim to lead some expert evidence. Material of the sort that you rely on, publicly available material produced by the Therapeutic Goods Administration or elsewhere relating to the pharmacological properties of various drugs, does not assist a court to determine issues that require expert medical evidence about whether the administration of particular drugs was in all the circumstances appropriate or fell below the standard of care to be expected of a medical practitioner. Just as it is important for the court to ensure fairness to you, Mr Azshion, equally the court has to consider fairness to the defendant.
As I understand it, you have both come here today, this matter having been listed for hearing. The point taken principally against you with respect to the negligence claim is that even if I were persuaded that the reasons that you are out of time could be explained, I still would not consider it just and reasonable to make an order extending time after some three years have passed beyond the limitation period when I am not satisfied that you have a case that is even arguable on the material that you have put before the court."

33 Under the Act, her Honour was specifically enjoined under s60C(2) to consider a number of matters when determining whether it was just and reasonable to extend time, including the following:

"s60E(1)(g) The steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received."

34 Her Honour gave judgment extempore. She refused the plaintiff's application to extend time. She said this: (p6)

"The defendant opposes the extension noting that proceedings in medical negligence are the subject of the requirements of Part 14C of the Supreme Court Rules 1970. Rule 6(1) requires that at the time of instituting a claim in medical negligence expert reports, including opinions supporting breach of duty, the nature and extent of the damage alleged, and causation be filed and served."

35 Her Honour continued: (p7)

"Ms Burke submits that in considering whether it is just and reasonable to make an order extending time, it is appropriate that I have regard to the claim that is made against the background of the failure to provide any expert report suggestive of the applicant having a case that is arguably open.
I am satisfied that the applicant has, at least since April 2004, been aware of the need to obtain some expert opinion evidence supportive of his case with respect to breach of duty of care, causation and damage.
It falls to the applicant to make out a case that it is just and reasonable to extend the limitation period. In all the circumstances I am not persuaded that he has done so and for these reasons I decline to make an order pursuant to section 60C of the Limitation Act extending the period for his cause of action in negligence."

36 At the end of her judgment, her Honour explained the effect of her ruling to Mr Azshion. The following exchange is recorded in the transcript: (T13)

"HER HONOUR: Mr Azshion, you understand your proceedings are still on foot?
AZSHION: Yes.
HER HONOUR: Your proceedings for false imprisonment, trespass and breach of statutory duty are all on foot?
AZSHION: Yes.
HER HONOUR: What I have done is refused you an extension of time in which to bring the negligence claim. I think in light of that really your notice of motion filed on 26 April has ..."

37 On 27 July 2005, the plaintiff filed a Further Amended Statement of Claim reflecting her Honour's rulings. The document simply excluded the count relying on negligence.

38 On 23 November 2005, the defendant filed a further Notice of Motion, being the first Notice of Motion before me. It withdrew the concession made before Bell J. The defendant's written submissions included the following:

"21. The Service now takes the point with respect to the limitation period for the [false imprisonment, trespass, assault and breach of statutory duty] causes of action.
22. For the purposes of the application the Service accepts the events pleaded in the Further Amended Statement of Claim occurred on the dates asserted in the Further Amended Statement of Claim.
23. The Service says that the plaintiff has made no application to extend the time in which to institute proceedings against the Service and that those causes of action are not maintainable."

39 The assertion in para 23, however, was not accurate. The defence which was filed on 14 April 2005 was in the following terms, making no reference to negligence:

"9. In the circumstances set out in paragraph 8 of this Defence, the Plaintiff is precluded by reason of the Limitation Act 1969, from maintaining these proceedings against the Defendant."

40 Mr Azshion's application for an extension, filed on 20 April 2005, was likewise general. It was later confined to the negligence count when argued before Bell J because of the concessions made by the defendant. As set out above, the altered stance of the defendant, prompted a further application for an extension by Mr Azshion, being the second Notice of Motion before me.

Are the Claims Statute Barred?

41 The defendant asserted that the limitation relevant to the plaintiff's causes of action for false imprisonment, assault and breach of statutory duty was defined by s18A of the Limitation Act. That section is in these terms:

"s18A Personal Injury
(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to [three exceptions not presently relevant].
(2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of three years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims."

42 The Act includes in s11(1) very broad definitions of the terms "breach of duty" and "personal injury". The definitions are as follows:

"s11(1) In this Act, unless the context or subject matter otherwise indicates or requires ...
'Breach of duty' when used in relation to a cause of action for damages for personal injury, extends to the breach of any duty (whether arising by statute, contract or otherwise) and includes trespass to the person ...
'Personal injury' includes any disease and any impairment of the physical or mental condition of a person."

43 Section 14(1) provides a six year limitation period in respect of the following:

"s14(1)(b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty, "

44 The causes of action relied upon by the plaintiff are causes of action in tort or breach of statutory duty. However, the Act contemplates a situation where a cause of action may be classified under two heads, and makes the following provision:

"s13 More than one bar
Where, under each of two or more provisions of this Part, an action is not maintainable if brought after a specified time, the action is not maintainable if brought after the earlier or earliest of those times."

45 The plaintiff, in the Statement of Claim, alleges that, as a consequence of the defendant's actions, he suffered injury, at least in the short term (para 8). The issue is whether, in these circumstances, his causes of action can be characterised as being "founded on ... a breach of duty" (as defined by s11(1)) "for damages for personal injury" (as defined). Section 18A, therefore, requires the conjunction of two things. First, it must be an action founded upon one of the identified causes of action, relevantly "breach of duty" (as defined) and, secondly, it must be capable of being characterised as an action "for damages for personal injury".

46 The construction of s18A of the Limitation Act 1969 (NSW) was considered by Campbell J in O'Neill v Foster (2004) 61 NSWLR 499, in the context of an action for assault and battery, that is an intentional trespass to the person. The issue arose under the Property (Relationships) Act 1984 where his Honour accepted the following argument: (at 502)

"8. Limitation period for actions of battery and assault.
An argument put by Mr Cullen, for the appellant, is that the cause of action for battery and assault is an action for damages for personal injury, is also an action for trespass to the person ( Williams v Milotin (1957) 97 CLR 465 at 471), hence is an action for 'breach of duty' in the extended sense required by s11(1) of the Limitation Act 1969, hence falls within s18A of that Act, and hence has a three-year limitation period. In my view that simple submission is right. It is right as a matter of construing and applying the words of the statute, on its face."

47 The meaning of the phrase "breach of duty", in the context of the Limitation of Actions Act 1958 (Vic), was recently considered by the High Court in Stingel v Clark [2006] HCA 37. The Court, by majority, determined that a trespass to the person (an alleged rape) is an action for "breach of duty". Gleeson CJ, Callinan, Heydon and Crennan JJ (who with Hayne J formed the majority), identified the reasons which supported that conclusion in these terms:

" [17] This Court should uphold the decision in Mason v Mason , which was followed by the Court of Appeal of Victoria in the present case. There are three reasons for this. First, as a matter of principle, for the reasons given by the English Court of Appeal in Letang v Cooper , the words "breach of duty" are capable of covering intentional trespass. In view of the difference of opinion between Diplock LJ in Letang v Cooper and Lord Griffiths in Stubbings v Webb , it is clear that eminent judges may disagree about whether, upon jurisprudential analysis, the expression "breach of duty" is apt in the case of trespass, but statutes of limitation are more concerned with practical justice than with jurisprudential analysis, and, at the very least, the language is ambiguous. Secondly, the legislative history in Victoria is significant, and in some respects different from that in the United Kingdom. The House of Lords, in Stubbings v Webb , considering the same expression in the Law Reform (Limitation of Actions, &c) Act 1954 (UK), attached significance to some remarks in the Report of the Tucker Committee, but in his evidence to the Committee of the Victorian Parliament, Mr Justice O'Bryan had earlier glossed those remarks differently in a manner consistent with the approach that later prevailed in Victoria. More significantly, ss 23A and 5(1A), both of which were the product of reviews of the existing law by expert committees, adopted language which, at the time of its adoption, had been construed judicially in a certain fashion. That history of judicial construction was part of the context in which the provisions are to be understood. It would certainly have been known to the committees advising on changes to the Act. We are dealing here with a matter of "lawyers' law"; and considerations of judicial precedent would have been to the forefront of matters taken into account. Thirdly, the alternative construction preferred in Stubbings v Webb results in anomalies; it attributes to Parliament an intention to draw a distinction which defeats, rather than advances, the purpose of the legislation. The evident purpose of both s 23A and s 5(1A) is to relieve the position of victims of tort: the former by giving a court a discretionary power to extend the time bar; the latter by providing for an automatic extension in cases of injuries of delayed onset. There is no discernible difference, in point of legislative policy, between victims of intentional and unintentional torts. No legislative purpose is served by putting the perpetrators of intentional torts in a better position than the perpetrators of unintentional torts. There being, as the Supreme Court of Ireland said, two constructions reasonably open, that should be preferred which produces a fair result that promotes the purpose of the legislation. The construction of the words "breach of duty" in the Victorian legislation accepted in Mason v Mason accords with legislative history, context and purpose. It is, therefore, to be preferred to that advanced by the respondent."

48 The third reason was also identified by Campbell J in O'Neill v Foster (supra), in the context of s18A of the New South Wales Act, as a reason for the construction which he preferred.

49 However, the legislative history in New South Wales is somewhat different from that in Victoria, and the terms of s18A also differ from the terms of the Victorian statute. The Victorian statute (and its English equivalent) included the following provision:

"s5(6) No action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any such provision), where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to any person, shall be brought after the expiration of three years after the cause of action accrued."
(emphasis added)

50 The words emphasised do not appear in s18A of the New South Wales Act. As mentioned, under the New South Wales statute, the action must be capable of being characterised as "an action founded on ... breach of duty, for damages for personal injury". A claim for false imprisonment, which happens to incorporate an allegation of personal injury, is arguably not an action for damages for personal injury.

51 Section18A was inserted by the Limitation Amendment Act 1990. The Second Reading Speech by the Attorney General, when introducing that Act, included the following statement: (1989, Vol 210, Hansard p12246)

"These reforms are based on the recommendation of the Law Reform Commission in its report entitled 'Limitation of Actions for Personal Injury Claims'."

52 The Law Reform Commission report (LRC 50) was introduced by a chapter which identified the perceived problems in respect of limitations in "the law in personal injury claims" (p4). They were problems which related to "accident cases", including actions under the Compensation to Relatives Act 1897, and actions where the injury was in the nature of disease where the symptoms were not immediate (accidental exposure to noxious or carcinogenic substances). The report makes no reference to intentional torts (apart from the suggested definition of breach of duty which included trespass to the person). Specifically, there was no reference to false imprisonment or assault. The report canvassed the law in other jurisdictions, including England and Victoria. The Draft Bill, incorporated in the report, included s18A in the terms in which it was ultimately enacted. It did not include the broader words which appear in the English and Victorian equivalent provisions, where the inclusion of a claim of personal injury in the statement of claim is enough to make the claim one for breach of duty.

53 Nonetheless, in the light of Stingel v Clark, the issue should be decided by applying O'Neill v Foster. I will assume a three year limitation period in respect of an action for false imprisonment.

Was the Plaintiff Suffering from a Disability?

54 The plaintiff asserted that, at least for a time, he was, by reason of treatment administered at the Richmond Clinic and the stroke he suffered, suffering from a disability. He argued that, whilst disabled, the running of the limitation period should be suspended. He relied upon s52 of the Limitation Act, which is in these terms:

"s52 Disability
(1) ... where:
(a) a person has a cause of action,
(b) the limitation period fixed by this Act for the cause of action has commenced to run, and
(c) the person is under a disability,
in that case:
(d) the running of the limitation period is suspended for the duration of the disability, and
(e) if, but for this paragraph, the limitation period would expire before the lapse of three years after:
(i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or
(ii) ...
(whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates."

55 The definition section includes the following definition of "disability":

"s11(3) For the purposes of this Act a person is under a disability:
(a) ...
(b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:
(i) any disease or any impairment of his or her physical or mental condition, ..."

56 Slattery J, in Kotulski v Attard [1981] 1 NSWLR 115, said this concerning the definition of "disability": (at 117/8)

"Section 11(3)(b) is concerned with two classes of person:
'One who is incapable' (which conveys the concept of total inability) and the other 'substantially impeded in the management of his affairs in relation to the cause of action ... by reason of disease or impairment or physical or mental condition.'
According to the Shorter Oxford Dictionary to 'impede' means to obstruct in progress or action; to hinder or to stand in the way of. 'Substantially', in my view, does not mean trivial or minimal, neither does it mean total: see R v Lloyd [1967] 1 QB 175. 'Mental condition' which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings.
It seems to me that the expression 'mental condition' is meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment."

57 The defendant submitted that, applying these provisions, it was reasonable to suspend the limitation period whilst Mr Azshion was an involuntary patient at the Richmond Clinic between 7 December 1997 and 16 December 1997, but not otherwise.

58 The medical evidence is far from complete. However, it provides support for Mr Azshion's claim that he was confused, and indeed regarded by certain doctors as psychotic, as late as August 1999. On the other hand, he approached solicitors in August 1998, although without success. Doing the best I can, on limited material, I believe it is probable that before 1 December 1999 Mr Azshion was, by reason of his mental state, substantially impeded in the management of his affairs, including his ability to make rational judgments.

59 Indeed, the defendant, in submissions filed in respect of this application, responsibly and reasonably, raised the following issue which it invited the Court to address:

" Appointment of tutor
33. Rule 7.18 Uniform Procedure Rules provides that the Court may appoint a tutor in any proceedings in which a party is or becomes a person under a disability.
34. On the face of the plaintiff's application he is, at the time of making this application for an extension of time, under a disability."

60 Without disrespect to the plaintiff, aspects of his presentation and submissions were unusual. Yet he showed an intelligent appreciation of the issues, when representing himself, such that I do not, at this point, see the need for the Court to appoint a tutor. Nonetheless, it should be noted that Mr Azshion, towards the end of his submissions, did encapsulate the case which he intended ultimately to make in these terms: (T37/38)

"I have my defence well and truly prepared and I have great strength in my case that I am going to bring forward, if this goes forward, where I was classified as schizophrenic and mentally ill, I prove what I alleged against the Australian Government and what I alleged against people in the small town community where I was taken out of and into the hospital of that small town community - I have evidence that proves why they called me a schizophrenic - I proved that what I was alleging is very much fact. They call me schizophrenic because I allege that I was spied upon. I have made correspondence, which is not before the court yet, that provides evidence that my accusations is very very fully standed and there is proof to say that I was, in fact, spied upon by surveillance camera in the place where I was at. They call me schizophrenic because I held an allegation that that happened. They didn't even - so once again I am saying there is much more depth in this false imprisonment than I would imagine the standard false imprisonment to be."

61 Suspending the limitation period until 1 December 1999 does not render Mr Azshion's action within time. He was arrested on 7 December 1997. Postponing the commencement of the three year limitation period to 1 December 1999 (to take account of disability), the Statement of Claim should have been issued no later than 30 November 2002. It was in fact issued more than a year later (18 December 2003). To succeed he must therefore rely upon certain additional provisions in the Limitation Act.

Application to Extend.

62 Mr Azshion also sought an extension under s60C of the Limitation Act, which is in these terms:

"s60C Ordinary action (including surviving action)
(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.
(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines."

63 In determining whether it is just and reasonable to extend time, the Court is obliged to have regard to a number of matters, as set out in s60E:

"s60E Matters to be considered by court
(1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extend that they are relevant to the circumstances of the case, to have regard to the following:
(a) the length of and reasons for the delay,
(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,
(c) the time at which the injury became known to the plaintiff,
(d) the time at which the nature and extent of the injury became known to the plaintiff,
(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission,
(f) any conduct of the defendant which induced the plaintiff to delay bringing the action,
(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,
(h) the extent of the plaintiff's injury or loss."

64 The defendant did not suggest actual prejudice. It was submitted that there is, nonetheless, presumptive prejudice where the action is not brought within time. It would not, according to the defendant, be appropriate to take account of the change in attitude of the defendant in withdrawing the concession made before Bell J. Although the change may be "conduct of the defendant" it was not conduct which induced the plaintiff to delay bringing the action, and therefore is not relevant to s60E(1)(f).

65 It was also submitted that the Court should, on this application, as a matter of comity, make the same finding as made by Bell J in respect of the application under the same section, namely, s60C. Her Honour found, in the context of an application to extend time in respect of the cause of action of negligence, that it would not be just and reasonable to extend time.

66 The plaintiff, responding to these submissions, asserted that justice required an examination of the circumstances leading to his arrest and incarceration at the Richmond Clinic. No such investigation had yet been made. The hospital notes were false or unreliable. He had never previously suffered from a psychiatric disability, and had never been admitted to a psychiatric clinic. The matters said to be delusional and symptoms of mental illness, in fact occurred. He will seek to demonstrate that by evidence, and thereby explode the false assumptions which underpinned the treatment given at the Clinic and pursuant to the community service order.

67 Secondly, Mr Azshion said that the concession made by the defendant before Bell J (confining the argument to negligence), altered the way in which he presented his case. It also altered, in his perception, the approach of her Honour. Bell J, as he recalled accurately, emphasised in her remarks after the judgement, that other causes of action (for false imprisonment, assault and breach of duty) were still on foot. He would have his day in court. In his perception, Bell J would have decided the matter differently had the defendant pressed its claims that all causes of action were statute barred.

68 Before dealing with the competing arguments, I should address the issues raised by the subparagraphs of s60E(1). Mr Azshion was aware of the injury (that is to say, the wrong done to him) upon arrest on 7 December 1997 (s60E(1)(c)). He claims to have been given treatment for a condition he did not have and to have suffered adverse effects. He was aware of those effects when they occurred. They continued to create problems for him until early 1999 (s60E(1)(d)). He was immediately aware of the connection between these difficulties and the conduct of the defendant (s60E(1)(e)).

69 The plaintiff tried valiantly to obtain legal advice, without success (s60E(1)(g)). So far as medical evidence is concerned, the plaintiff is wary of doctors. He has attempted to heal himself. As I understand his submissions, he has been largely successful (s60E(1)(h)). He has no supporting medical expert opinion (s60E(1)(g)). As an unrepresented litigant with limited resources, that is perhaps not surprising. He has, however, obtained from various medical encyclopaedias and other sources, literature concerning the drugs and treatment provided by the Clinic (s60E(1)(g)).

70 The defendant, for reasons no doubt which it regards as sound and well intentioned, delayed access to the medical records which were obviously important to the plaintiff obtaining advice (s60E(1)(f)). That delay, however, occurred at a time when Mr Azshion was disabled and the limitation period suspended. The defendant's conduct, therefore, cannot be said to have further delayed the bringing of the action. As mentioned, the defendant claims no actual prejudice (s60E(1)(b)). The length of the delay, making allowance for disability, was approximately 13 months (s60E(1)(a)).

71 What was the reason for the delay (s60E(1)(a))? The plaintiff is, and has been throughout, unrepresented. He is not a lawyer. His first attempts at drafting a pleading were inadequate. The pleading betrayed his limited understanding. There is no evidence that he knew that the limitation period was three years. Indeed, given the defendant did not know that it was three years when they appeared before Bell J in June 2005, it would be surprising if the plaintiff knew. I infer that he did not.

72 The application before me is very different from that before Bell J. First, Bell J, as mentioned, was concerned with the cause of action in negligence. I am concerned with false imprisonment and assault. The plaintiff also relies upon breach of statutory duty, identifying a number of alleged breaches of the Mental Health Act 1990. It may be doubted that these sections give rise to a private cause of action. That issue need not be resolved on this application. I will approach the alleged breaches of statutory duty as particulars relevant to false imprisonment, and possibly causes of action.

73 In the action for false imprisonment, Mr Azshion was unquestionably imprisoned. He was held against his will by the Clinic. The issue is whether his detention was lawful. In respect of that issue, the onus is upon the defendant to establish lawful justification (Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497, per Kirby P at 512/3). In Carnegie v The State of Victoria & Ors (unreported, 14.9.89) the Full Court (Crockett, O'Bryan and Gray JJ) made the following comment upon a Judge's charge to the jury in a trial involving an allegation of false imprisonment. The Court said this:

"But the real vice in the charge is the repeated suggestion that the appellant was required to prove that he was falsely imprisoned. That is just what he did not have to prove. He had to establish only that he was imprisoned. If he did so it was for the respondents to satisfy the jury that they did not falsely imprison i.e. that their act of imprisonment was legally justified."

74 The defence filed by the first defendant does not plead justification, nor the basis upon which it asserts that the detention was lawfully justified. It should do so. The defendant acknowledged, in the course of argument, that in respect of false imprisonment, the plaintiff had a prima facie case. Bell J, in dismissing Mr Azshion's application for an extension in respect of negligence (where the onus was upon the plaintiff), was concerned that, in the absence of medical evidence supporting his claim, there was no arguable claim.

75 The second difference between the application before me and that before Bell J is that a refusal to extend time on this application, unlike that before Bell J, would extinguish Mr Azshion's claim. In my view, it is relevant in determining whether it is just and reasonable under s60C(2) to extend time, to take account of the defendant's conduct in making and then withdrawing a concession in respect of the limitation period relating to the remaining causes of action. The introductory words to s60E allow the Court to have regard to "all the circumstances of the case", including the subparagraphs of that section, to the extent that they are relevant. I accept that Mr Azshion may have presented his argument differently had the survival of his entire action been at stake.

76 I believe, in the circumstances, that it is just and reasonable to extend the limitation period to 1 January 2004 in respect of the remaining causes of action, so that the action before this Court may be regarded as within time.

77 I should advert to one other issue. I invited the parties to comment upon the suggestion that, having regard, to the confined nature of the claim in respect of injuries, the matter should now be transferred to the District Court. Both parties opposed that course, although for different reasons. The defendant pointed out that the matter had a long and troubled history. It had reached this point partly because of the management afforded by the Professional Negligence list. Such progress, in the defendant's submission, may be jeopardised were the matter transferred to the District Court at this stage.

78 In the circumstances I am persuaded that, notwithstanding the limited damages that the plaintiff appears likely to recover, were he to succeed, that the matter should remain in this Court.

Orders.

79 I make the following orders:

1. That the plaintiff be given an extension of time in respect of the remaining causes of action until 1 January 2004.

2. That the name of the defendant be amended from Northern Rivers Area Health Service to North Coast Area Health Service.

3. That the defendant be given leave to file an Amended Defence, raising justification (and providing appropriate particulars).

4. That costs be reserved.

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