Bray v State of Victoria & Ors
[2024] VCC 138
•29 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-21-04810
| DAVID BRAY | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| and | |
| DAVID ERIC FARRELL | Second Defendant |
| and | |
| PAUL BELL | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2024 | |
DATE OF JUDGMENT: | 29 February 2024 | |
CASE MAY BE CITED AS: | Bray v State of Victoria & Ors | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 138 | |
REASONS FOR JUDGMENT
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Subject:LIMITATION OF ACTIONS
Catchwords: Police tort – dashcam footage – delay in making claim – delay of twelve and a half years - where reason for delay alleged harassment by police – drug abuse – marriage breakdown – family and community pressure - lack of legal advice on limitations period
Legislation Cited: Limitation of Actions Act 1958, s27D, s27K, s27L
Cases Cited:Holcombe v Hunt [2018] VSC 55; Tsiadis v Patterson (2001) 4 VR 114; Griffiths v Nillumbik Shire Council [2022] VSCA 212; Franghis v Salafia & Anor (Ruling) [2023] VCC 148; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Repco Corp Ltd v Scardamaglia [1996] 1 VR 7; Ford Motor Co (Aust) Ltd v Kulic [1988] VR 152
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Ryan SC with Mr D Seeman | Robinson Gill |
| For the First Defendant | Ms R Kaye KC with Ms J Ryan | TG Law |
| For the Second Defendant | No appearance | |
| For the Third Defendant | Mr N Dunstan | Mal Ryan & Glen |
HIS HONOUR:
Introduction
1On 2 May 2011, David Bray was detained by police just outside Mansfield, Victoria. Dashcam footage captures officers, David Farrell and Paul Bell, striking him on his hands and feet with their batons, while he is seated on the ground in their custody. Mr Bray began this proceeding in 2021, claiming common law damages as a result of Mr Farrell’s and Mr Bell’s actions of that night. This is well beyond the three-year statute of limitations period prescribed by s27D of the Limitation of Actions Act1958 (“the Act”). Mr Bray accepts that he must obtain an extension of time pursuant to s27K of the Act to enable him to pursue his common law action. The defendants’ opposition to Mr Bray’s application requires the Court to synthesise the matters elaborated on in s27L of the Act, to determine whether, in the Court’s discretion, Mr Bray should be granted leave to extend time.[1]
[1]Holcombe v Hunt [2018] VSC 55 at paragraphs [49[-[50]
2For the reasons which follow, I consider Mr Bray’s application should be granted and I will extend time.
Relevant facts
3Mr Bray was born in September 1978 and grew up in Lilydale. From about Year 7, he had substance-abuse problems involving alcohol, mushrooms, LSD and methamphetamine.[2] He did not enjoy school and at age fourteen left to begin a painting apprenticeship. He continued work as a painter and decorator throughout Melbourne thereafter.
[2]Joint Court Book (“JCB”) 328
4In 2008, Mr Bray began a relationship with Amy Sonnberg.[3] In 2009, Mr Bray moved with his young seven-year-old son to Mansfield and began living with Ms Sonnberg. They were married in October 2009. In mid-2010, they moved to another property in Bonnie Doon.[4] At this time, Mr Bray began to associate with his neighbour, Ryan Boyd.
[3]Affidavit of Amy Therese Sonnberg, sworn 1 December 2023 at JCB 456
[4](Ibid), JCB 457 at paragraph [7]
5Ms Sonnberg deposes that, prior to moving to Bonnie Doon, she was aware that Mr Bray would drink and take amphetamines from time to time. Ms Sonnberg deposes that, as Mr Bray’s relationship with Mr Boyd developed, they began to more constantly drink and to take drugs.[5] However, after moving to Bonnie Doon, his drinking, drug taking, the time he was spending with Mr Boyd, and his “generally irresponsible approach to marriage and family”,[6] led to a significant breakdown in their relationship. There is dispute as to actually how much work Mr Bray was doing at this time. He deposes to working consistently between 7.30am to 3.30pm. However, Ms Sonnberg suggests that his work ethic began to decrease after the move to Bonnie Doon.
[5](Ibid), JCB 457 at paragraph [12]
[6](Ibid), JCB 448 at paragraph [15].
The incident
6In any event, on 2 May 2011, in the evening, it is alleged that Mr Bray left the Delatite Hotel in Mansfield with Mr Boyd in the plaintiff’s vehicle. They proceeded to conduct burnouts outside the front of the Mansfield Police Station. As Mr Bray drove away from the police station, he turned down Howes Creek Road, where he was intercepted by a police officer. That officer instructed Mr Bray and Mr Boyd to exit their vehicle and sit down at the front of the police vehicle. At this point, Mr Farrell and Mr Bell attended. It is alleged that Mr Farrell kicked Mr Bray approximately three times in the torso and struck Mr Bray to the head three times with a baton. It is alleged that Mr Bell hit Mr Bray in the head with his hand twice and kicked him once.[7] These allegations are admitted by both the State of Victoria (“the State”) and Mr Bell. The dashcam footage also displays the incident clearly.[8]
[7]Plaintiff’s Amended Writ and Statement of Claim, 6 December 2022, JCB 15 at paragraphs [8]-[11]
[8]Exhibit P5, JCB 304
7Shortly thereafter, the Ethical Standards Division (“ESD”) of Victoria Police launched an investigation into the events shown on the dashcam footage. It led to charges being laid against both Mr Farrell and Mr Bell. Relevantly, in respect of Mr Bell, there were pleas of guilty entered in December 2011, to one charge of intentionally cause injury and one charge of assault.[9]
[9]plea hearing in the Wangaratta Court Magistrates’ Court, 14 December 2011 at JCB 206
8On 15 December 2011, Mr Bray attended upon a lawyer, Mr David Schier, at Dawes & Vary Riordan solicitors.[10] The heading of a file note refers to “police assault: damages: advice”. The plaintiff deposed that he had consulted with Mr Schier in order to get advice, as media were situated outside the family home and he wanted to get rid of them. I will return to the details of the file note in due course. There is no letter of advice from Mr Schier in respect of any potential claim for common law damages and, particularly, there is no advice in respect of limitations periods attaching to such common law rights.
[10]JCB 33 at paragraph [38] and JCB 445
9Skipping forward to when the ESD investigation concluded in April 2012.[11] Material from the investigation was tendered, including a statement from Mr Bell. It included details of the events of the night the incident occurred.
[11]JCB 216-236
10In the period from 2011 to 2013, it appears that Mr Bray was unable to work for a period of about one-and-a-half years.[12]
[12]Entry of treating Dr Daniela Friday, 23 June 2016, “allegedly assaulted by Police in 2011 hasn’t dealt with, lost his job for about 18/12” at JCB 328
11He deposed that, during this period, he had some contact with lawyers, but that there was “[n]ot one lawyer with whom I had contact told me about the statute of limitations”.[13]
[13]JCB 33 at paragraph [33]
12Then, on 9 July 2013, Mr Bray was called by Mr Schier. In his affidavit, Mr Bray deposes that he has no recollection of this phone call. The note seems to record that Mr Schier had received a call from Channel 9 on 9 July 2013 at about 15:25 hours.[14] Channel 9 sought information in respect of Mr Bray. Shortly thereafter, Mr Schier attempted to call out to Mr Bray at 15:30 hours. That call appears to have been unsuccessful, but Mr Schier left a message. Then, at about 16:20 hours, Mr Bray called Mr Schier. That conversation lasted some ten to fifteen minutes.[15] In that conversation, it is recorded that Mr Bray was seeking damages and Mr Schier enquired as to whether or not he wished to proceed. Some instructions are then taken in respect of the effect that the incident had on him. Once again, there is no letter of advice which follows this note advising of common law rights or limitation periods. I also record that the note makes no mention of limitation periods within it.
[14]JCB 444
[15]JCB 442
13It is alleged by Mr Bell that, in 2014, he had an interaction with Mr Bray at a supermarket, where Mr Bray is alleged to have said words to the effect: “I’m still going to take your house”.[16]
[16]JCB 447
14In 2015, Mr Bray deposed to discussing a potential common law claim with his criminal solicitor, Mr Martin Amad. Mr Amad advised that he would look into it and nothing further occurred. There is no letter of advice in respect of common law rights or limitation periods from Mr Amad in the material.
15Mr Bray deposes that, in around 2015 or 2016, he was contacted on Facebook with a link to the dashcam footage. In the interaction with the person via Facebook, he was told that there may be a seven-year limitation period and that the person would look into it. The exact text of the Facebook messaging is not before the Court. Mr Bray also advised that he had attempted to contact Maurice Blackburn/ Slater and Gordon, and Nicola Gobbo, to discuss his claim, but either Maurice Blackburn or Slater and Gordon indicated they might have a conflict and did not take on his case. Ms Gobbo did not respond to Mr Bray’s enquiry. In any event, no letter of advice regarding common law rights or the limitation periods was provided to him.
16During 2016, he was under the care of his treating doctor, Dr Daniela Friday, at the Central General Medical Practice. She recorded that he continued to use ice after the assault. In particular, she notes that he had a period of using ice daily, but that by 2016, this was down to one to two times per week. Shortly after, the practice nurse, Ms Rose Mogford, recorded that Mr Bray had a thirteen-year history of daily drug use and was regularly thinking about the assault and the harassment he experienced afterwards. She noted that his anxiety and stress had increased since the assault and that he was struggling to give a clear sequential history of events.[17]
[17]JCB 283
17In 2017, Mr Bray returned to Melbourne and, in his words, began to get “clean”.
18He began working as a self-employed painter and decorator. He met his current partner shortly thereafter and he remains with her. Since that time, he has continued to work and live in Melbourne. In about 2020, he began correcting his tax affairs by lodging past income tax returns, and has continued to lodge and pay tax as a required since that time. This information is relevant as the defendants submitted it showed Mr Bray was in a fit state to initiate a common law claim.
19To interpolate into the chronology at this stage, in 2021, Mr Bell deposes to destroying all notes that he had made in respect to the incident and its aftermath.[18] He made a submission that, as a result, he was prejudiced in the conduct of the trial.
[18]JCB 447 at paragraph [8]
20In October 2021, via Facebook, Mr Bray was put in touch with Mr Jeremy King of Robinson Gill lawyers.[19] On 10 November 2021, Mr Bray had a conference with Mr Nick Boag, a solicitor, of Robinson Gill.[20] On 11 November 2021, Mr Boag issued a generally-endorsed writ in this court.[21] On 12 November 2021, Robinson Gill wrote to the Victorian Government solicitors, indicating Mr Bray was investigating his common law rights, but that he was out of time and sought consent to bring a proceeding out of time. On 16 November 2021, Thomson Geer replied on behalf of the State, indicating that they would consider the request in due course.[22]
[19]JCB 34 at paragraph [49] and JCB 35 at paragraph [50]
[20]JCB 51 and JCB 68
[21]JCB 51
[22]JCB 51
21On 21 March 2022, Thomson Geer advised Mr Bray that they did not consent to the extension of time sought by him.
22On 19 September 2022, Mr Bray filed a statement of claim to accompany the generally-endorsed Writ.[23]
[23]JCB 307
23On 28 November 2022, a defence was filed, in which the State denied it was liable for the actions of Mr Bell and Mr Farrell, because they were acts of serious and wilful misconduct for which it was not liable.
24On 1 December 2022, Mr Bray sought the State’s consent to joining Mr Farrell and Mr Bell separately.
25On 5 December 2023, the State consented to that course. Without going into the exact details to avoid overburdening this judgment with unnecessary detail, I indicate that I accept the affidavit of Ms Estelle Petrie, which sets out the administrative course the proceedings took after that time. Broadly, it appears that Mr Farrell sought to evade service and ultimately orders for substituted service had to be obtained. To this day, Mr Farrell has not entered an appearance and has not defended the action. This process of attempting to locate and serve Mr Farrell occupied Mr Bray’s solicitors and I consider their attempts to do so were prudent.
The affidavits
26Ultimately, on 24 October 2023, a summons seeking an extension to bring Mr Bray’s common law action was filed.
27On 20 November 2023, an affidavit of Lynda Bray was affirmed. She is the mother of Mr Bray. In it, she deposed to telling Mr Bray, after the incident, to “get on with his life”.[24]
[24]JCB 44 at paragraph [5]
28On 21 November 2023, an affidavit of Melanie Greene, Mr Bray’s sister, was affirmed and filed.[25] In it, she deposed to the fact that the incident had led to a feeling of pressure on her within the community and also that she noted a downhill spiral in Mr Bray’s life. She deposed to having interactions with Mr Bell’s wife, Jenny Bell. In those conversations, she deposed that Jenny Bell said words to the effect that her brother ought to drop the charges and also that Mr Bell was a good man.
[25]JCB 46
29On 20 December 2023, Mr Bell affirmed and filed an affidavit.[26] In it, he deposed to having numerous interactions with Mr Bray after the incident, in which Mr Bray allegedly said to him words to the effect that “I’m going to take your house”.[27] He also deposed to the specific prejudice he suffered, being lost notes and lost documents from the police station, which he argues supported an argument that his actions were implicitly encouraged by his superiors, who wished to stamp out the type of behaviour that Mr Bray was involved in immediately prior to the incident.
[26]JCB 446
[27]JCB 447
30On 20 December 2023, an affidavit of Jenny Bell was affirmed and filed.[28] In the affidavit, she refuted the allegations made by Ms Greene that she had been spoken to by Ms Bell about her husband, or that she had asked Ms Greene to tell her brother to drop the charges.
[28]JCB 452
31She further deposed to removing her children from the local school to avoid any contact with members of the Bray family and also to minimise any future targeted harassment or bullying.
32On 20 December 2023, an affidavit of Mr Justin Crockett was sworn and filed. He is an acquaintance of Mr Bell. He recounts an incident in 2015 or 2016, when he witnessed Mr Bray shouting something along the lines of “I am going to take you for everything” and “you will pay” directed at Mr Bell.[29]
[29]JCB 454 at paragraph [5]
33On 21 December 2023, an affidavit of Ms Sonnberg was sworn and filed.[30] As will be recalled, she was the wife of Mr Bray from 2009, until they separated towards the end of 2011. She provides evidence in respect of his drug use, involvement with Mr Boyd, the reasons for their marital difficulties, and some evidence as to the impact the incident had on Mr Bray.
[30]JCB 456
34Mr Bray was called, adopted his affidavits and was cross-examined.
The relevant legislation
35Section 27K of the Act states:
“Extension of limitation periods
(1) A person claiming to have a cause of action to which this Part applies may apply to a court for an extension of a period of limitation applicable to the cause of action under Division 2.
(2) Subject to section 27L, the court—
(a) may hear any of the persons likely to be affected by the application as it sees fit; and
(b) may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.
(3) If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.”
36Section 27L of the Act states:
“Matters to be considered in determining applications for extension of limitation period
(1) In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e) the time within which the cause of action was discoverable;
(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
(2) To avoid doubt, the circumstances referred to in subsection (1) include the following—
(a) whether the passage of time has prejudiced a fair trial of the claim; and
(b) the nature and extent of the plaintiff's loss; and
(c) the nature of the defendant's conduct.
(3) In the application of this section to a cause of action that is a survivor action references in subsection (1) to the plaintiff include references to the deceased and the applicant, or any of them, as appropriate in the circumstances.
(4) In the application of this section to a cause of action that arises under Part III of the Wrongs Act 1958 , references in subsection (1) to the plaintiff include references to the deceased, the executor or administrator of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances.”
37As set out in Franghis v Salafia & Anor (Ruling):[31]
“The consideration of this application to extend the period of limitation is to be approached in the way set out by Buchanan JA in Tsiadis v Patterson,[32] as recently affirmed by the Court of Appeal in Griffiths v Nillumbik Shire Council,[33] but, for the avoidance of doubt, I acknowledge that the resolution of this application involves a synthesis of all relevant competing considerations, including but not limited to, those set out in s27L.”[34]
[31][2023] VCC 148
[32](2001) 4 VR 114
[33][2022] VSCA 212
[34]Franghis v Salafia & Anor (Ruling) [2023] VCC 148 (per his Honour Judge Purcell) at paragraph [25]
38The synthesis of all relevant competing considerations must be undertaken against the backdrop of the purpose of limitation periods, with the statement of principle as set out in the High Court in Brisbane South Regional Health Authority v Taylor,[35] and as described in Griffiths v Nillumbik Shire Council (“Griffiths”), as remaining the yardstick. As was said in Griffiths, a limitation period in a proceeding:
“… is not just some easily movable line in the sand. Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions.”[36]
[35](1996) 186 CLR 541
[36](Supra) at paragraph [66]
39In the course of this matter, both parties tendered a large amount of material. Particularly the affidavit material of those that I have referred to above.
Issues in dispute
40The parties are primarily in dispute over the length and reasons for delay. The defendants say, in particular, that the length of delay is long, that the reasons Mr Bray gives to explain the lengthy delay are weak and insufficient to justify delay of this length. In part, they draw in criticisms associated with Mr Bray’s credibility.
41Further, the defendants complain that they are subject, not only to general or presumptive prejudice occasioned by the lengthy delay, but there was also specific prejudice. The State contends that changes to the Victorian Police Act 2013 (“VPA”), introduced in December 2014, renders it potentially liable in a way it would not have been under s123 of the Police Regulation Act 1958, in a situation where officers are potentially engaged in serious and wilful misconduct.
42As to Mr Bell, he specifically argues that he is prejudiced in advancing his argument that there was pressure to behave in the way he did to achieve the aim of curtailing behaviour such as Mr Bray was engaged in, as he has burnt certain notes related to the events, there has been no discovery from police of “readouts”,[37] there are likely to have been retirements of senior officers in the area and he is unable to locate Mr Farrell.
[37]JCB 448 at paragraph [18]
Synthesis
Section 27L(1) length and reasons for delay
43Turning to an assessment of the individual factors set out in the Act. The parties accept a number of matters, beginning with the fact that the cause of action accrued on 2 May 2011 and expired on 2 May 2014. Further, it is accepted that the length of the delay is calculated from the accrual of the cause of action to the date the Summons seeking an extension of time was issued.[38] This date is 25 October 2023. Counsel for the State described the delay, then, as twelve-and-a-half years. Mr Bray did not quibble with that assessment and I accept that approximation as representing the period of delay in this case. Counsel for the State submitted this was an overly-lengthy period, relying on Ford Motor Co (Aust) Ltd v Kulic.[39] However, other cases in different circumstances have periods greater than those than in this case.[40] So, by itself, the length of twelve-and-a-half years is not definitive. It can also be seen that, though the Summons was only issued on 25 October 2023, Mr Bray’s lawyers had acted in November 2021, very promptly, upon receiving instructions to notify the State, issue proceedings and seek consent to the proceeding outside the limitation period. I accept the chronology detailing the interaction between the parties deposed to by Ms Petrie in her various affidavits and particularly that sworn 19 January 2024. Not only do I consider this provides evidence of the fact the defendants were aware of the proceedings and Mr Bray’s need for an extension of time, but it also provides very substantial reasons to explain the period of the delay from November 2021 to October 2023. These were the taking of very prudent steps by Mr Bray’s solicitors in this period. I will return to this point when I consider the reasons for the delay in chronological order. However, on the assessment of the length of the delay, while I accept the formulaic assessment of twelve-and-a-half years, the reality of the situation appears that the delay substantively ended in March 2022, when the defendants responded to Mr Bray’s request for an extension of time, after having considered the matter for some months and making a conscious decision to oppose the application.
[38]Repco Corp Ltd v Scardamaglia [1996] 1 VR 7 at [11]
[39](Supra) at transcript (“T”) 65, Lines (“L”) 23
[40]Holcombe v Hunt (supra)
Section 27L(1) reasons for delay
44This factor was the major battleground between the parties. In summary, Mr Bray raised four reasons for his delay:
(a) his worsening drug use from the day of injury until about 2016/2017, when he moved to Melbourne and began to get “clean”;
(b) harassment by the police;
(c) family pressure;
(d) he was an unsophisticated man, aware of his common law right to sue, but unaware of the limitation period in the Act.
45The State submitted, as to the reasons for delay:
(a) Mr Bray’s evidence lacked credibility because:
(i)he had not correctly deposed to the nature and extent of his drug use;
(ii)he had not accurately deposed as to why his marriage had broken down;
(iii)he had exaggerated the nature and extent of any police harassment and community pressure;
(iv)he had misled the Court about his knowledge of the right to sue, exemplified by the file notes produced to the Court from Mr Schier’s file;
(b) he particularly could not explain the delay from 2017, being the time he came to Melbourne to get “clean”, to the date when he began proceedings, given he had started working, partnered again and contained his drug-and-alcohol problems, when he knew he had a right to claim and was aware of the concept of the limitation period from the conversation through Facebook in 2015.
46Mr Bell joined with the State’s submissions on this point.
Consideration of s 27L(1) reasons for delay
(a) Mr Bray’s submission that his drug use worsened after the events of 2 May 2011 and this was the reason for the delay in instituting proceedings.
47In Mr Bray’s first affidavit, affirmed 24 July 2023, he deposed:
“After the incident I began abusing methamphetamines. However, I continued working as a painter decorator even during this time. I was working up until 2017 when I moved back to Melbourne. It was also around this time that I started to get clean.”[41]
[41]JCB 30 at paragraph [12]
48It was put to Mr Bray, in cross-examination, that he was attempting to say that:
“… it was only after the incident in May 2011 that you started using methamphetamines at all.”[42]
[42]T25, L9-10 and T27, L4-10
49Mr Bray denied this was what he was trying to convey in his affidavit. Under cross-examination, immediately thereafter he readily admitted that he had a history of drug use prior to the incident, but also that, in none of his affidavit material, had he deposed to that fact.[43] On Mr Bray’s case, much turns on the words “abusing methamphetamines” (emphasis added) used in his affidavit. He submits these words were intended to convey the fact he had a prior history of drug use which was somewhat controlled, and, then, after the incident, spiralled into “abuse”. He sought to clarify this in cross-examination, by saying, “I had a history of use with it but not daily”.[44] The defendants highlighted, however, that he had told a nurse at his local GP clinic in 2016 that he had, up to that point, a history of daily use of ice.[45] Evidence from Ms Sonnberg, his former partner, about his drug use, in the period 2008 to 2011, also suggests he had a significant drug-use habit prior to the incident.
[43]T25, L12-26 and T26, L16
[44]T28, L13-14
[45]T28, L15-26 and JCB 328
50This was accepted as accurate by Mr Bray.[46] It is also consistent with the notes of Dr Nicole Besley, a counsellor, in 2018. When looked at carefully, that note details drug use from Year 7 of speed, mushrooms, LSD and alcohol, and then records “not regularly”.[47] It records that, from 2010 to 2016, he was living in Bonnie Doon “doing meth”. In having regard to the GP practice notes and this counselling note, it is hard to view them as any more than small fragments of information that do not greatly advance the Court’s overall knowledge of the true position as to Mr Bray’s drug use pre and post the incident. This is because the notes are not contemporaneous, the maker did not provide an affidavit to explain the context of the notes and they are recorded many, many years after the pre-incident drug use. Furthermore, the note of 2016 occurs when Mr Bray, himself, gave evidence he was using drugs daily and this undoubtedly had an effect on his recall of the sequence of events. Ms Mogford specifically records this in her note of 2016.[48]
[46]T25, L26
[47]JCB 372
[48]JCB 328-329
51Ultimately, in cross-examination, it was wrung out of Mr Bray that he did at times use ice daily prior to the date of injury.[49] However, he clarified that this period of daily use was not for extended periods.[50]
[49]T30, L12-20
[50]Ibid
52In assessing this evidence overall as to the reality of the situation against Mr Bray’s affidavit, I find it difficult to make a definitive finding that Mr Bray has sought to mislead. In reading the affidavit, Mr Bray certainly left open, and unsaid, the issue of his previous drug use and its extent. I think this is important, because his claiming damages is ultimately about the impact the incident had on him. Part of that would always have been about the allegedly worsened state that he was in after the incident, as opposed to before it. Why, then, was there no mention of the prior drug use in his three affidavits, it might be asked? It is even more inexplicable, given Ms Sonnberg’s affidavit, which detailed Mr Bray’s prior drug use. Mr Bray provided a further affidavit after Ms Sonnberg’s affidavit, but he did not address the issue of his prior drug use. In the end, Mr Bray conceded a significant history of using a variety of drugs prior to the incident. He conceded that, at times prior to the day of injury, he used amphetamine daily.[51] The manner with which this evidence was wrung from him and his failure to detail his prior drug use in any of his previous affidavit material, leaves the strong impression that he was not being open and candid in his affidavit material. This tells against his reliability and credibility on this point of his drug use before and after the incident. Overall, I find the position is that, post the incident, he was a regular user of ice. To the extent he describes a spiral into worsening drug use, this cannot be accepted on the material currently before the Court, given his history to his treating doctor on 23 June 2016 of daily ice use after the assault, and, by 2016, one to two times per week.[52] So, while there may have been a period of daily use after the incident, it was for a limited period. There is no certain reliable evidence that such use was a reason to delay proceeding with his cause of action.
(b) Mr Bray’s submission that the incident was a cause of his marital breakdown and this was a reason for his delay in instituting proceedings
[51]T30, L15-20
[52]JCB 328
53Mr Bray’s affidavit states, “[t]he incident also affected my family. About a month afterward, my ex-wife and I separated”.[53]
[53]JCB 30 at paragraph [11]
54It was put that Mr Bray was “saying it was the incident which led to the separation on (sic) your marriage”.[54] Mr Bray immediately disagreed, stating, “[i]t had an effect, it wasn’t purely the incident”.[55] This echoed what he had deposed to in his second affidavit, affirmed 19 January 2024.[56] I find Mr Bray’s evidence on this point consistent and credible. I accept his evidence and I do not consider it impacts on his credibility. To the extent that the matter was not clarified until after Ms Sonnberg’s affidavit and his second affidavit, I do not consider this was of any moment because he was properly clarifying a matter and did so promptly. I am not of the view that the words bear the direct meaning the defendants seek to impart to them and I prefer Mr Bray’s evidence on this point.
(c) Mr Bray’s submission that police harassment, and family pressure and community pressure, was a reason for the delay in instituting proceedings
[54]T35, L18-19
[55]T35, L19
[56]JCB 38 at paragraph [9]
55Mr Bray deposed:
“After the incident occurred, I was repeatedly harassed by police. This went on for pretty much the whole time I lived in Bonnie Doon, from May 2011 until I left town. … .”[57]
[57]JCB 31 at paragraph [17]
56He gave details of this in the following manner, in his first affidavit:
“After the incident attracted media the police began stalking me at my property. … .
… I felt harassed and intimidated. They would do this consistently 2-3 times a week, sometimes sitting there and watching for a couple of hours. This went on for about 1.5 months.”[58]
[58]JCB 31 at paragraphs [18]-[19]
57While Mr Bray was briefly cross-examined about this evidence, he was not seriously challenged on it. His evidence of police remaining outside his property in the one-and-a-half months post the incident was not challenged and I accept it. I find his evidence on this point is largely intact,[59] and that, as a result of police actions post the incident, he felt an element of being targeted.
[59]JCB 31 at paragraphs [17]-[21]
58Overall, given the unchallenged evidence of Mr Bray, I consider his evidence supports a finding that there was a real reason why Mr Bray did not proceed with his claim in the time he was in Bonnie Doon/Mansfield.
59The second component to the defendants’ attack on this ground of exaggeration is that Mr Bray was under no pressure from his family to desist from bringing a claim. Mr Bray deposed:
“Every time that the incident was brought up, I knew that it caused embarrassment to the family. Both my sister and my parents were embarrassed by me. Any mention of the incident, whether I talked about it generally or if I mentioned suing police or doing something about it, provoked the same reaction. They wanted me to forget about it. They encouraged me to let it go and not cause any trouble around town and that sort of thing.”[60]
[60]JCB 32 at paragraph [26]
60The first point the State made was that such feeling of community pressure could only have existed until both Mr Bell and Mr Farrell pleaded guilty in December 2011. This was a period of about six months or so.[61]
[61]T73, L16-20
61The second point is that any harassment occurring between Melanie Greene and Jenny Bell was alleged to have occurred at school. However, Jenny Bell’s evidence is that her children were taken from the school in 2012. The State made the point that, as such, there was only very limited opportunity for interaction between the Bray/Greene family and the Bell family. The third point was that the supporting material from Mr Bray’s sister was, in part, disputed in the affidavit of Jenny Bell.[62] This factual dispute centred on whether Melanie Greene was told by Jenny Bell that the charges should be dropped and that Mr Bell was a good man. Jenny Bell denied that she had any conversations with Melanie Greene at all.[63] It is very difficult to resolve this factual dispute between the parties, given that neither Melanie Greene, nor Jenny Bell, were called to give evidence and be cross-examined. What is clear, however, from both affidavits, is that there was a real degree of stress and anxiety which Melanie Greene and Jenny Bell felt had arisen in the community as a result of the incident. This is seen in the affidavit of Jenny Bell, when she describes the time around the incident as being very stressful for her and her family. Of course, this is centred, in large part, around the fact that her husband was directly involved in the incident and had been charged. However, it extended to the fact that she felt very reluctant to contact Melanie Greene at all, so much so that she sought advice as to whether or not she should even speak to Melanie Greene, despite their children attending the same school. Such stress and anxiety surrounding the incident continued well into 2012 on Melanie Greene’s evidence, to such an extent that Jenny Bell removed her children from the school to “[m]inimise any potential future targeted harassment or bullying”.[64]
[62]T74
[63]JCB 453
[64]JCB 453 at paragraph [14]
62This suggests that there remained ongoing tension in the community well into 2012. This broadly supports Mr Bray’s submission that there was a degree of stress, anxiety and pressure in the community regarding the incident. The evidence of both Melanie Green and Lynda Bray supports the fact that they were suggesting to Mr Bray that he ought not proceed with any further action because of fear that it would exacerbate the stress and anxiety surrounding the incident in the community, and that it may particularly be targeted at their family. Mr Bray’s credit on this point was not seriously called into question during the course of cross-examination. My consideration of his affidavit evidence on this point is that it is to be accepted and, broadly, I find that his credibility was not affected by his evidence on this point. Overall, I consider that Mr Bray’s submissions on this point are made out, that the community and family pressures were such that he did not feel encouraged to proceed with any damages claim, and, in fact, felt pressure not to do so.
(d) Mr Bray’s submission that he was an unsophisticated man, aware of his common law rights to sue, but unaware of the limitations
63In Mr Bray’s affidavit, he deposed to seeing Mr Schier toward the end of 2011 for the purposes of how to deal with the media. He deposed:
“… I wasn’t trying to sue the police. I was only asking how to deal with the media as they were standing out the front of my sister and parents’ house. … .”[65]
[65]JCB 33 at paragraph [37]
64He deposed that Mr Schier told him that he would look into going forward with some sort of claim and that he was never told about the time limits for a claim after that meeting. Mr Bray deposed that he had never heard from Mr Schier thereafter. He then detailed attempting to contact Maurice Blackburn/ or Slater and Gordon between 2011 and 2013, but was told that the firm was conflicted. No advice, written or oral, was received by him as to a damages claim or limitation period. He had a conversation with his criminal lawyer, Mr Amad, sometime around late 2015, but was given no advice in respect of a common law claim, nor advice in respect of the limitation period. He also attempted to call a barrister named Nicola Gobbo sometime after 2015, but she never returned his call. In about 2015 or 2016, he was contacted through Facebook by someone who had some link to the Law Institute, but was not able to give him any immediate advice in respect of a common law claim or limitation periods.
65The evidence founds Mr Bray’s submission that, while he was broadly aware he had a potential claim, he was given no specific advice in relation to it and was given no advice in relation to limitation periods applicable to his circumstances.
66The defendants’ first point of attack was centred around file notes discovered from Mr Schier’s file. As set out above, these commenced in December 2011 and detail the first attendance Mr Bray made on him.[66] In cross-examination, Mr Bray accepted that, at the meeting with Mr Schier, he had briefly discussed the prospect of suing police for damages.[67] He went on to state, however, that this was not the reason why he attended, it being for advice regarding how to deal with the media, and that the discussion was only brief. Ms Kaye, Senior Counsel for the State, suggested that Mr Bray was not being truthful in his affidavit when he described his conversation with Mr Schier as involving the media and not relating to the issue of damages.
[66]File note of David Schier, dated 15 December 2011 at JCB 445
[67]T42, L3-5
67I do not accept that characterisation of his evidence. This is because, at the time Mr Bray swore his affidavit, he had no access to the relevant file note. He was attempting to recall an event which had occurred over ten years ago, during a time which was stressful to him, in which he has admitted he was using methamphetamine extensively. In cross-examination, he conceded that his memory of these events was not good. However, when the note was produced in court, he readily accepted that his memory might have been not good enough to remember all the details of the consultation. This concession, when confronted with the note, was made quickly and appropriately. Common experience tells that people often go to lawyers seeking specific advice and the lawyer, with far greater knowledge of legal matters, indicates that there are other issues, or other courses of action, that also need to be investigated and progressed. That being the case, I do not consider it can be inferred that Mr Bray went to see Mr Schier to discuss common law damages or to activate his rights in this regard. It is likely that Mr Schier gave some advice or discussed the possibility for common law action with him, but there is no letter of advice, or further file note, in respect of the 2011 consultation, which illuminates this question. I would not accept the defendants’ characterisation of Mr Bray’s evidence on this point.
68Next, turning to the 2013 interaction that Mr Bray had with Mr Schier. In sequence, the file notes show that there was no communication between Mr Bray and Mr Schier from December 2011 to about 9 July 2013. Then, on 9 July 2013, Mr Schier received a telephone call from “Laura” at Channel 9, enquiring about Mr Bray and whether or not he had begun a civil claim. The note then reads “still in process”. Mr Schier attempted to make a telephone call to Mr Bray at 15:30. It was accepted that there was no answer to Mr Shier’s attempt, and a message was left on Mr Bray’s phone.[68] At 16:20, Mr Bray called Mr Schier back. The note reads that Mr Bray was seeking damages and that Mr Schier enquired as to whether or not he was going ahead. Some instructions appear to have been taken about his work status and how his health and personal relationships were going.[69] Mr Bray gave evidence that he had no recollection of the conversation of 9 July 2013.[70]
[68]JCB 444
[69]JCB 442
[70]T44, L1-2
69The defendants seek to argue that, by 2013, Mr Bray was in the process of bringing a common law damages claim, but had made a deliberate decision not to go ahead with that claim. I do not accept that submission. This is because the file notes contained in the file of Mr Shier clearly indicate that, from 2011 to 9 July 2013, nothing had happened on the file. There was no letter advising that such a claim was commencing, nor that even investigations for such a claim were commencing. No request for documents from the police had been made and no fee and retainer agreement was signed. At best, in 2011, Mr Schier had indicated he was going to look into the possibility of such a claim. Then, from December 2011 to July 2013, nothing occurred. The notation in the July 2013 file note that a claim was “still in process” seems more likely to be a note that Mr Schier made to record that he was in the process of getting advice to Mr Bray. Following this conversation, there is no letter of advice in which Mr Bray is advised of his common law rights and limitation period. The note of 16:20,[71] notes that Mr Shier asked if Mr Bray was going to proceed. There is no note as to the answer to that query, but instructions as to the impact on Mr Bray are taken. It is unlikely that Mr Schier would have taken these notes as to pain and suffering consequences if Mr Bray had said he was not proceeding. It is very difficult to make inferences from the file note, given it is some eleven years old and Mr Schier was not called. But, doing the best the Court can, I infer that Mr Bray did not specifically tell Mr Schier not to proceed. Rather, the possibility of a claim was still being contemplated.
[71]JCB 442
70Having made that finding, and combining it with the accepted evidence that Mr Bray actively sought out advice on his common law rights from Mr Amad, Maurice Blackburn/Slater and Gordon, Nicola Gobbo and, then, via Facebook when contacted in 2015, I find that Mr Bray was aware of his potential common law rights from at least 2013. This is also consistent with the evidence of Mr Bell and Mr Crockett, as to being shouted at by Mr Bray. However, not much turns on this corroborating evidence, given my finding based on the notes of Mr Schier. I cannot accept the State’s submission that there was a deliberate decision not to act on those rights. I come to this finding because, firstly, Mr Schier’s notes do not record such instructions, but, rather, take instructions to be used in a prospective claim which are unnecessary, if, in fact, Mr Bray had decided not to pursue such a claim; and, secondly, there is an indication that such a claim was “still in process” by Mr Schier in his conversation with Channel 9; and thirdly, when there is no progress after December 2011 and, again, in July 2013, by Mr Shier, Mr Bray attempted to obtain advice from Maurice Blackburn/Slater and Gordon, Nicola Gobbo and Mr Amad. This indicates a positive intention to progress his rights. It is also relevant to recognise that such events occurred when Mr Bray was chronically addicted to methamphetamine. As his progress notes from Ms Mogford record’s in mid-2016, he was having real difficulty with sleeping and eating properly, and had depressive symptoms. These are factors which, in part, explain why he did not progress his common law rights. I accept this.
71The defendants submits that Mr Bray considered the incident “a joke” and was not minded to proceed with any claim until “the matter effectively fell in his lap with the Facebook notification”,[72] after which he changed his mind. I do not accept this, given the steps that Mr Bray took, set out above, in respect of seeking advice about his claim.
[72]T77, L11-12
72It was next suggested that, while Mr Bray may have a reasonable explanation as to why he did not advance his common law rights up to 2017, when he moved to Melbourne, there are no such reasons in play after 2017. On the defendants’ case, after 2017, Mr Bray began to get “clean”, moved to Melbourne, successfully re-partnered in a long term relationship, worked full time and put his tax affairs in order. The defendants submit that, if he was able to put all these matters in order, he had the capacity to advance his common law rights and ought to have done so. Mr Bray’s Senior Counsel did not suggest there were the same reasons in play for the period after 2017 to support specific reasons for delay.
73I accept the defendants’ submission in part. I accept that Mr Bray was in a fundamentally better physical and psychological position than he was prior to 2017. In that state, he had the ability to order his life. This suggests he had a capacity to advance his common law rights. He did not. However, it must be remembered that Mr Bray had a long history of drug use going back to Year 7 at school. He had a limited education, leaving school at age fourteen. He was undoubtedly an unsophisticated man. This is consistent with my observations of him in the witness box. He was generally honest and straightforward, but had moments of unreliability – as perhaps can be expected from someone with his history of chronic drug use. I consider that his lack of education and general unsophistication are reasons behind this period of delay, rather than any deliberate decision not to advance his common law rights.
74I also find that, in the period from the date of injury until the time he consulted with Robinson Gill, he had no knowledge of the limitation period. That is because there is no letter of advice to that effect forwarded to him in that period by a solicitor. There is also no record in evidence that indicates such advice was given to him orally. Lastly, Mr Bray does not depose to having received such advice in any form. The defendant submitted that the Facebook advice he received in 2015, of a limitation period of seven years, constituted advice of limitation periods which he should have heeded.
75I do not accept that submission. This is because there is no definitive evidence this advice was given by a lawyer. Such advice, if given by a lawyer, would be considered decisive, authoritative and imposed a legally-enforceable deadline. The evidence cannot support a finding that such advice was given by a lawyer, and, as such, there is no reason to suspect that Mr Bray considered this was advice he ought to follow. Furthermore, the advice was vague. Mr Bray was not cross-examined about what he thought the advice meant. On his evidence, then, it is equally open that he considered the advice as being that he had seven years from 2015 to act, or, alternatively, that he had seven years from the date of injury to act. Both versions are wrong. The evidence of this event in 2015 is so vague as to be worthless in considering whether Mr Bray knew of common law limitation periods.
76This further supports the finding that he did not deliberately decide not to advance his common law rights. This is because, in the period from 2011 to 2021, he did not act in a way which contradicted any legal advice he was given.
77To conclude, I find that the Mr Bray was a credible witness, whose evidence was at times unreliable.
Prejudice
78The defendants both claimed that they suffered from general or presumptive prejudice, caused by the overall period of delay of twelve-and-a-half years.
79I have touched on this above briefly in the discussion of Kulic. The parties all accept the relevant principle as explained in Brisbane South. I do not need to set those principles out again. In the present case, I do not find that there is much force in this point because of the material which has been produced contemporaneously with the incident. It is voluminous, the dashcam footage being particularly important, detailing the central allegation. There is, then, the brief of the evidence brought against Mr Farrell and Mr Bell, and the ESD investigation documents. Finally, there is the admission as to the conduct complained of in the filed Defences. As to damages, there appear to be voluminous medical notes, which permit the commissioning of medical reports to opine on the alleged physical and mental injury sustained. This is not a case where the fading of memories will cause the quality of justice to deteriorate.
Specific prejudice – The State of Victoria
80The State submitted it suffered from specific prejudice. This was because, at the time of this incident on 2 May 2011 and to the expiry of the limitation period on 2 May 2014, Mr Bray’s cause of action was governed by s123 of the Police Regulation Act 1958 (“PRA”). The PRA provided that, so long as a police member acts in good faith in the conduct of their duties, liability will attach to the State. Where they act otherwise, liability attaches to them individually and will not attach to the State. However, after 2 May 2014, the PRA was succeeded by the VPA, which particularly replaced s123 of the PRA, and was applicable to the cause of action pleaded by Mr Bray. Specifically, the VPA made the State liable for the actions of police members where they acted in the course of their duties. Where they acted in a manner determined as serious and wilful misconduct, then liability attached to the individual officer. To this point, both the PRA and the VPA were similar. However, s79 of the VPA introduced a new concept which was that, if a police officer acts in a manner determined as wilful misconduct, but the Minister is satisfied the claimant is unlikely to recover the amount from the individual police officer, then the Minister may pay an amount to the claimant.[73]
[73]Section 79 of the VPA
81That change was said to visit specific prejudice on the State, because it now faced a potential liability it did not face if proceedings had been issued before 2 May 2014.
82I do not accept the State’s submission on this point. This is because the operation of s79 is largely speculative and contingent on the exercise of a discretionary power of a Minister. It is speculative because, at this stage, there is no evidence that Mr Bray is “unlikely to recover the amount from the officer who committed the police tort”.[74] There is no evidence what, if any, amount Mr Bray will be awarded, and whether or not Mr Farrell or Mr Bell could pay that amount. At present, while Mr Farrell has been served, he has not appeared or put on any evidence about his alleged impecuniosity. The State’s solicitor deposes to property searches which suggest that Mr Farrell has limited real property, but that does not deal with his other assets or bank accounts.[75] Mr Bell has not submitted any such evidence about his financial state, but, importantly, he intends to run an argument that he did not act in a way which could be determined as serious and wilful misconduct. These matters would have to be determined to a much greater degree of certainty for me to consider s79 may have operation. Furthermore, there is no indication that the Minister would exercise the power reposed in s79. For these reasons, I do not consider the State can make out its ground of alleged specific prejudice.
Specific prejudice – Mr Bell[76]
[74]Section 79(2)(a)
[75]T88, L18-28; affidavit of Cameron Roberts, sworn 14 December at JCB 306
[76]Counsel for Mr Bell did not categorise his submissions as relying on specific prejudice grounds. However, for the purposes of the judgment I have considered them under this heading.
83Mr Bell appears to allege that:
(a) his fragile mental state was not adequately addressed by his employer;[77]
(b) senior management was concerned to bring “hoon” driving in the local area under control;[78]
(c) he was “acting on instructions from higher command to apprehend the perpetrators of the repeated instances of hoon driving and doing burnouts”[79] and that as such was not engaged in wilful misconduct;
(d) that in order to make good his argument, he needed access to “the daily statement from management for the period leading up to the incident,”[80] but that these documents, known as “readouts” had not been discovered and he fears they have been lost with the passage of time. Similarly he had burnt notes which may have been relevant – in what way, he did not say;
(e) the inability to call Mr Farrell, and potentially other officers present at the station, to support his argument.
[77]Affidavit of Bell JCB 438 at paragraph [14]
[78](Ibid) at paragraphs [16]-[17]
[79](Ibid) at paragraph [17]
[80](Ibid) at paragraph [18]
84I will deal with each of these matters in turn. As to the issue of Mr Bell’s mental health at paragraph 82(a) above, there is no evidence that his medical files (possessed by Victoria Police or his own medical practitioners) have been lost or destroyed. I do not consider there is any specific prejudice occasioned to him if he wishes to mount an argument based on his mental state in 2011.
85As to the argument at paragraphs 83(b), (c) and (d), set out above, regarding the instructions/desire from senior managers to apprehend “hoon” drivers in 2011, there is no evidence that he has made a request for such discovery, from the State, of documents that relate to this argument. Further, while his defence does take issue with whether or not s74(1) of the VPA is applicable to him, it does not particularise in what way. From the Court file, it can be seen that the State filed an affidavit of documents, sworn 7 December 2023. It contains, what appears to be, a large volume of material which appears to have a significant number of documents contemporaneous and predating the incident. No application has been made as to any alleged insufficiency of the affidavit of documents. No evidence was put before the Court by Mr Bell of attempts he had made to obtain the “readouts”. In those circumstances, it seems somewhat speculative to state that the “readouts” are unavailable. It may well be that, given that his pleading is so broad as to the applicability of s74(1), to him, the “readout” documents did not fall within the scope of the discoverable documents. Without more detail, I am not prepared to find that the “readout” documents have been lost, in circumstances where so much other contemporaneous material held by police can be found – this indicates good recordkeeping and increases the likelihood the “readouts” were retained, and, also, the lack of specific evidence of attempts to obtain the “readouts” by Mr Bell.
86As to the argument about the loss of access to Mr Farrell and other officers, there is no evidence before the Court of attempts made by Mr Bell to contact any other officers. The same applies to the submission that the burnt notes are no longer in existence. It was not specified in what way they may be relevant. There is no evidence to support this submission and I put it to one side.
87Having assessed those matters said to go to specific prejudice, I do not accept that Mr Bell has made good his point that he will suffer specific prejudice if an extension of time were granted.
88Having regard to factors in s27L(1)(c) of the Act, as to the steps the defendants took to make facts available to Mr Bray, this matter does not arise.
89As to s27L(1)(d), the duration of disability or incapacity of Mr Bray, this does not arise beyond what I have set out in relation to the reasons for delay above.
90As to s27L(1)(e), as to the time when the cause of action was discoverable, this matter was agreed between the parties as being on the date of the incident as at 2 May 2011.
91As to s27L(1)(f), the extent to which Mr Bray acted promptly and reasonably once aware of his rights, I have set out above that Mr Bray first became cognizant of his rights when he consulted with Mr Boag in November 2021. Thereafter, his solicitor acted with real alacrity. He issued a proceeding the next day and then informed the State of the claim and the need for an extension of time the day after that. For the reasons set out above, I accept that issues to do with the service of Mr Farrell absorbed Mr Bray and delayed the issuing of the Summons for the extension of time. However, overall, I consider Mr Bray and his solicitors acted promptly and reasonably in the period after November 2021.
92As to s27L(1)(g), which requires a consideration of the steps taken by Mr Bray to obtain medical, legal or other expert advice. To a degree, I have considered this above, in the discussion regarding his consultations with other lawyers. However, this factor concentrates more on matters since November 2021. It appears, from the limited dispute between the parties on this point, that there is no real concern about the steps taken since Mr Bray instructed solicitors – save for the delay in issuing the Summons. There is no relevant delay caused by the need to obtain medical material, for example. Such material, as I have described above, seems able to be gathered.
93Section 27L(2) also requires consideration of three matters said to be encompassed in s27L(1). These are:
“(a)whether the passage of time has prejudiced a fair trial of the claim; and
(b) the nature and extent of the plaintiff's loss; and
(c) the nature of the defendant's conduct.”
94I have already dealt with the matters raised by 27L(2)(a) and (b). As to 27L(2)(c), I consider that the defendants’ conduct must also be called into the factors for synthesis. Here, there is clear video footage of two sworn officers apprehending two citizens at night, and then hitting them. This is a matter of some significance in the community. It is a factor which I consider supports a submission that an extension of time ought be granted. I put this into the synthesis of factors to be considered.
Conclusion as to the overall synthesis
95I come, now, to a synthesis of the matters required in such applications. I do so, understanding that the limitation period is not some easily moved line in the sand. As was put by Counsel for Mr Bell, the extension of the time would oppress an individual, such as Mr Bell, because he had “put it behind him a long time ago”. I also take that into account. In this case, however, I will extend the time to bring proceedings. This is for the following reasons:
(a) there is no dispute over the incident. The evidence regarding its occurrence is captured clearly on the dashcam. The contemporaneous witness evidence is contained in the brief of evidence and in the ESD materials. There is only slight general prejudice that can be made out. I do not accept that there is any specific prejudice to any of the defendants. I consider the parties can undoubtedly have a fair trial, given the plethora of material;
(b) the period of delay is explainable, to a large extent, by Mr Bray’s chronic drug addiction, police, family and community pressure. It is also understandable, given his lack of general education. I do not accept that he made a specific decision not to act on his rights. First, while it can be accepted that he had knowledge that he had a potential common law claim, I do not find that he ever had specific advice as to those rights until November 2021, when he consulted Robinson Gill. I do not consider that the decision of Arisoy v Yoogalu Pty Ltd[81] relied upon by Mr Bell is particularly relevant, as this Court was informed, in some detail, of the length and reason for delay. I further find that he did not have knowledge of his limitation rights at all until that time. While he attempted to obtain such knowledge from various sources, such as Mr Schier, Maurice Blackburn/Slater and Gordon, Mr Amad and Facebook, I do not find that any such advice was forthcoming. His reasons for not pursuing such advice with greater vigour are understandable and I accept them: his drug addiction, police, family and community pressure, his lack of education, and his general lack of sophistication. This is not a case such as Griffiths, where there was written authoritative legal advice as to common law rights and limitations periods, which were ignored. Much is different here, as there was no authoritative advice as to common law rights and no advice as to limitation periods, which could have been ignored;
(c) the medical material in existence allows Mr Bray and the defendants to equally put their cases fairly;
(d) to the extent that Mr Bell relies on his arguments as to acting in accordance with police instructions, I am not convinced he has lost the ability to pursue the documents and witnesses he seeks to support his case. This is because there is no evidence that such material cannot be obtained;
(e) I accept that the institution of proceedings after a period of twelve-and-half years has a degree of oppression. The period of delay is lengthy. However, this is only one factor that has to be called into account and synthesised overall.
[81][2012] VSC 631
96Performing that task results in my decision to permit Mr Bray an extension of time within which to bring his proceedings. I will give the parties seven days to formulate orders to give effect to this decision. If agreement cannot be reached, this matter can be called on for mention.
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