Bowden v State of NSW - [2014] NSWSC 87

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

On 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.

At the time of the commencement of proceedings, Mr Bowden was 72 years old, having been born late in 1939.

Factual Background

The 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.

When 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWSC 87
Decision Date: 28 February 2014

CaseChat Overview and Summary

In Bowden v State of NSW, the plaintiff sought to recover damages for personal injuries sustained in a motor vehicle accident. The dispute centred around the applicability and extension of statutory limitations on the plaintiff's right to bring a claim against the defendant, the State of New South Wales. The matter was heard by the Supreme Court of New South Wales, which was required to determine whether the plaintiff's claim was time-barred and, if so, whether an extension of time was warranted under the Civil Procedure Act 2005.

The court was tasked with deciding whether the question of whether to extend the limitation period should be considered separately from the determination of the merits of the case or if it should be decided concurrently. The court also needed to consider whether granting an extension of time would be just and reasonable under section 60gG of the Limitation Act 1969 (NSW) and whether it would best advance the overriding purpose of the Civil Procedure Act 2005.

The Supreme Court found that the issue of whether to extend the limitation period should be determined separately from the trial on the merits. The court concluded that an extension of time was just and reasonable in the circumstances, taking into account the plaintiff's lack of knowledge about the accident and the defendant's delay in providing information. The court emphasised that granting an extension would align with the overriding purpose of the Civil Procedure Act 2005, which is to ensure that cases are resolved justly and efficiently.

The court ordered that the plaintiff's claim was not time-barred and that the matter should proceed to trial. Additionally, the court allowed an extension of time for the plaintiff to bring the action, setting aside the limitation period that would otherwise have prevented the claim.

Orders