Gluszek v State of Queensland
[2012] NSWDC 164
•28 September 2012
District Court
New South Wales
Medium Neutral Citation: Gluszek v State of Queensland [2012] NSWDC 164 Hearing dates: 26 September 2012 Decision date: 28 September 2012 Before: Gibson DCJ Decision: (1) Pursuant to s 31(2) Limitation of Actions Act 1974 (Qld) the limitation period for the actions pleaded in paragraphs 5, 7, 8, 10, 11, 13 and 16 of the document entitled "Third Amended Statement of Claim" be extended to 28 days from today, namely 26 October 2012.
(2) The plaintiff be granted leave to file an amended Statement of Claim incorporating the causes of action set out in order 1, including particulars of the causes of action and of the claim for damages (including but not limited to the claim for punitive damages) by the date in order 1 above.
(3) Liberty to apply in relation to costs.
Catchwords: LIMITATION OF ACTIONS - extension of time - plaintiff commences proceedings within time and seeks leave to bring further claims out of time - Limitation of Actions Act 1974 (Qld) Legislation Cited: Limitation of Actions Act 1974 (Qld), ss 10, 11, 30 and 31 Cases Cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
Chouman v Margules (1993) 17 MVR 144
Dick v University of Queensland [2000] 2 Qd R 476
Ford v Nagle [2004] NSWCA 33
Marsden v Broadbent [2010] QSC 431
MCA v Queensland [2011] QSC 298
Newman v Queensland [2009] QSC 125
NF v State of Queensland [2005] QCA 110
Stephenson v Queensland [2004] QCA 483
Tiernan v Tiernan [1993] QSC 110
Whalan v Kogarah Municipal Council [2007] NSWCA 5Texts Cited: Halsbury's Laws of Australia (LexisNexis) Category: Interlocutory applications Parties: Plaintiff: Nigel Gluszek
Defendant: State of QueenslandRepresentation: Plaintiff:Mr S Longhurst
Defendant: Mr J Turnbull
Plaintiff: RMB Lawyers
Defendant: Ferguson Lawyers
File Number(s): 2011/169232 Publication restriction: None
Judgment
The plaintiff by amended notice of motion filed on 14 August 2012 seeks orders as follows:
(1) Pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) the limitation period for the actions pleaded in paragraphs 5, 7, 8, 10, 11, 13 and 16 of the Third Amended Statement of Claim be extended to the date of the filing of the Statement of Claim or such other date as the Court deems fit.
(2) The plaintiff be granted leave to file the Third Amended Statement of Claim pursuant to s 64(1)(b) and s 65 of the Civil Procedure Act 2005 (NSW) in respect of the actions pleaded in paragraphs 7, 8, 10, 11, 13 and 16 of the Third Amended Statement of Claim.
(3) The defendant be required to produce documents under subpoena dated 28 October 2011 and 25 June 2012 issued by the plaintiff upon the defendant.
(4) Costs.
(5) Such other order as this Honourable Court sees fit.
The application for leave under ss 64(1)(b) and 65 Civil Procedure Act 2005 (NSW) sought in order 2 was not proceeded with (Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676), nor was I asked to make orders concerning the defendant's failure to provide documentation in answer to subpoenae issued in October 2011 and June 2012.
The legislation
The limitation period in Queensland for actions in trespass, such as assault or false imprisonment, is the same as that for other actions in tort: Halsbury's Laws of Australia (LexisNexis) at [415-340]; ss 10 and 11 Limitation of Actions Act 1974 (Qld).
Sections 30 and 31 of Limitation of Actions Act 1974 (Qld) ("the Act") are as follows:
"30 Interpretation
(1) For the purposes of this section and sections 31, 32, 33 and 34 -
(a) the material facts relating to a right of action include the following -
(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
(ii) the identity of the person against whom the right of action lies;
(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
(iv) the nature and extent of the personal injury so caused;
(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing -
(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
(ii) that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action;
(c) a fact is not within the means of knowledge of a person at a particular time if, but only if -
(i) the person does not know the fact at that time; and
(ii) as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time.
(2) In this section - appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.
31 Ordinary actions
(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court -
(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
(3) This section applies to an action whether or not the period of limitation for the action has expired -
(a) before the commencement of this Act; or
(b) before an application is made under this section in respect of the right of action."
Both parties relied upon Marsden v Broadbent [2010] QSC 431 ("Marsden"), where Atkinson J helpfully summarised the authorities and history of this legislation as follows (at [5]-[9]):
"[5] The Act restricts the rights and liabilities of potential litigants and imposes strict obligations on those who seek remedies in court once the limitation period is past but is, regrettably, less than clear in its expression. In their joint judgment on the construction of this Act, Gummow, Hayne and Crennan JJ said in Queensland v Stephenson [2006] HCA 20 at [1]:
Of the British ancestor of Pt 3 [of the Act], Lord Reid observed that it had a strong claim to the distinction of being the worst drafted Act on the statute book.
[6] Kirby J observed, somewhat trenchantly, at [44]-[45]:
In Ditchburn v Seltsam Ltd, I suggested that an encounter with statutory provisions similar to those under consideration in this appeal was liable to confuse judges and lawyers causing them to emerge "on the other side dazed, bruised and not entirely certain of their whereabouts". The passage of 17 years, and many more cases struggling with the meaning of the statutory language, has not removed the sense of disorientation. In a competition involving many worthy candidates, Lord Reid's prize remains in place. This is so although, as Rehnquist J noted in Chardon v Fumoro Solo, "[f]ew laws stand in greater need of firmly defined, easily applied rules than does the subject of periods of limitation". This desirable goal has not been attained in Australia. This appeal affords the latest illustration of that fact.
In 1986, a law reform commission report was delivered proposing changes to the then template of Australian laws. It suggested a simplified approach to applications for extension of time for commencement of actions. However, amendments were not enacted in Queensland applicable to these proceedings, despite judicial endorsement elsewhere of the need for reform. The result is that, in the present cases, the Queensland courts were obliged to struggle with the complex and obscure statutory language borrowed originally from a deficient English model.(footnotes omitted).
[7] A similar comment had been made by the Queensland Court of Appeal in Carlowe v Frigmobile Pty Ltd [1999] QCA 527 at [9]:
That the extension provisions are complex and extremely technical and have been a fertile source of litigation has been adversely commented upon by the Queensland Law Reform Commission in their review of the Limitation of Actions Act 1974.
[8] In Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton [2001] QCA 335 at [62], I added:
The need for law reform is manifest and it has already been the subject of a Queensland Law Reform Commission Report.
[9] Nevertheless, the statute has not been amended and continues to be a fertile source of uncertainty and therefore litigation."
The evidence relied upon
The plaintiff sworn an affidavit on 11 September 2012 (upon which he was briefly cross-examined) and, in addition, relied upon three affidavits of his solicitor sworn on 4 May, 25 June and 11 September 2012.
The defendant relied upon two affidavits of Stephen John Ferguson, solicitor, sworn on 27 January and 18 May 2012.
The issues for determination
The plaintiff commenced proceedings within the limitation period. This application relates to new claims in relation to conduct by the police officer, Senior Constable Benjamin Price, on 24 May 2008, and a new claim for a prior assault by this police officer, on 19 April 2008.
The question to be determined is whether there was a material fact of a decisive character relating to the right of action which was not known to, or within the means of knowledge of the plaintiff, prior to expiry of the limitation period: Marsden at [17].
The question of "material fact" is governed by s 30(1)(a) of the Act and the question of what gives the material fact a "decisive character" is governed by s 30(1)(b) of the Act. Whether or not a material fact is of a decisive character is "within the means of knowledge of a person" is governed by s 30(1)(c) of the Act. The parties agreed that this test is subjective, in that it is not a question of "the reasonable man", but the means of knowledge which were reasonably available to the plaintiff (Dick v University of Queensland [2000] 2 Qd R 476 at 486-487; NF v State of Queensland [2005] QCA 110 at [29]).
These provisions confer jurisdiction on the court to extend a limitation period for no more than a year from the date on which, or by which, the applicant knew or had the means of knowing, a material fact of a decisive character, when that fact was not within its means of knowledge until a date after the commencement of the last year of the ordinary limitation period: Stephenson v Queensland [2004] QCA 483 at [107]. That date is asserted to be 25 May 2012 (plaintiff's outline of submissions, page 2) or alternatively 14 August 2012, when the plaintiff's solicitor received the report of Mr Stephen Dragutinovich, which enabled him to give competent legal advice to the plaintiff within the meaning of s 30(2) of the Act.
In order to determine whether the plaintiff can satisfy the court that there was a material fact of a decisive character not known to him, or within his means of knowledge, prior to the limitation period expiring, it is necessary for me to consider the factual circumstances, including not only the circumstances of the injuries alleged, but also the criminal proceedings and his subsequent consultation of medical practitioners and, in January 2011, of a solicitor.
The background to this application
It is not in dispute that the plaintiff was, whilst in police custody, was a witness to a violent and unprovoked assault upon his childhood friend, Mr David Steele on 24 May 2008. The CCTV footage of that assault is annexure AB to the affidavit of Mr Imran Khan of 11 September 2012. Criminal charges were laid against the police officer in question, Senior Constable Benjamin Price. A transcript of the plaintiff's evidence in the criminal proceedings against Price arising from this assault and the plaintiff's statement to police (taken on 1 July 2008) are annexures to the affidavit of Mr Ferguson of 30 January 2012.
Counsel for the plaintiff described the assault captured on CCTV as being horrific. At the request of the parties, I have viewed the CCTV footage, which lasted approximately 37 minutes. It shows Mr Steele (with the plaintiff being briefly viewed nearby, and then off-camera) being punched in the head, sprayed with water for at least 10 minutes, dragged along the floor, held down and pulled down from the waist continuously over a period of approximately 20 minutes, as well as undergoing what appears to be a body cavity search. Both the plaintiff and Mr Steele had been taken into custody following a complaint that they were seen fighting with each other at a public venue.
The plaintiff, who in his proposed amendments claims he was also assaulted on this occasion, states in his affidavit that after giving a statement to police investigating this assault (on 1 July 2008), he was so terrified by what he had seen happening to Mr Steele that he left Queensland. He consulted different doctors, but was fearful of disclosing the assault matter to them (paragraphs 51-54 of his affidavit).
The plaintiff was required to attend court to give evidence in the criminal proceedings against Senior Constable Benjamin Price in about July 2009. He was only required to give evidence about the events which occurred on 24 May 2008. There is no reference to the earlier assault in his statement.
In the course of oral submissions on 26 September, in response to an inquiry from me, both counsel told me that there was no evidence whatsoever, in the prosecution of Senior Constable Benjamin Price, about any prior incident of the plaintiff and Mr Steele being arrested or assaulted by Senior Constable Benjamin Price on an earlier occasion, or about the other new material the subject of the application for leave. Counsel for both parties assured me that they had checked the transcript of the criminal proceedings, as well as all exhibits.
The plaintiff does not refer to any such evidence being given in the affidavit he swore for these proceedings. He states (at paragraph 55) that the fact that this prior incident did not form part of these criminal proceedings "reinforced my mind that the most significant event was the one occurring on 24 May 2008". The transcript for what he said at the committal was not put to him in cross-examination.
The plaintiff's evidence principally described his life since the criminal proceedings in which he gave evidence. Although the plaintiff felt "happy" when he heard that Senior Constable Benjamin Price had been found guilty and sentenced to two years imprisonment, he remained fearful of police and very reluctant to discuss what had happened (paragraph 56). He consulted a solicitor in 11 January 2011 as a result of family pressure following his condition worsening. However, he only discussed the incident of 24 May 2008, as "I thought that was the incident that caused my psychological problems" (paragraph 57). This was in part because it was the subject of the criminal proceedings and in part because it was only after the second incident that he began having nightmares and flashbacks and became nervous.
The plaintiff commenced having psychological counselling. It did not occur to him to advise either his treating doctors, a medico-legal doctor or the counsel briefed in the matter that there had been an earlier incident involving the same police officer.
The plaintiff's evidence is that he did not know until he read Mr Simon Curnow's report in early December 2011 that the problems he was having had been diagnosed as post traumatic stress disorder (paragraph 63 of the plaintiff's affidavit). He did not raise with his solicitor and barrister until 25 May 2012 that there was an earlier incident. He did not appreciate until he read the report of Steven Dragutinovich dated 14 August 2012 that the incident on 19 April 2008 may also have contributed to his psychological injuries. In the interim, a notice of motion for leave to amend had been filed on 7 May 2012, in relation to the additional claims for assault during the 24 May 2008 incident.
This brings me to the circumstances of the plaintiff having in fact attempted to raise the earlier incident involving Price in the course of his cross-examination in the criminal proceedings, in circumstances where his evidence was treated as irrelevant not only by the counsel cross-examining but in re-examination by the crown prosecutor. That evidence is set out in paragraph 28 below.
While at first blush it may be hard to understand how such important evidence could be overlooked by the plaintiff's own legal advisers, the three affidavits of Mr Khan paint a sad picture of the many requests he has made to Queensland Police for documents relating to the assault since he was first consulted by the plaintiff in January 2011. The plaintiff is still seeking orders for the defendant to answer a subpoena he issued nearly one year ago (see order 3 above). The transcript of evidence of the plaintiff was not provided to the plaintiff's legal advisers until 20 December 2011, many months after Mr Khan first started seeking documents, and when it was provided, it was one of a very large number of documents sent just before Christmas (paragraph 4 of Mr Khan's affidavit of 4 May 2012). Moreover, reading the transcript would only have been the start. There was no date for this earlier incident given in the transcript, and given the nature of the allegations, it was necessary to make further inquiries to ascertain the date, whether the police involved really had included Senior Constable Benjamin Price, and what the others who were present said (plaintiff's additional written submissions, page 2)
The defendant's representatives had had access to this transcript for some time; transcript was provided to Dr Selwyn Smith in September or October 2011, and he provided a report dated 29 November 2011. His comment on page 2 in relation to "Transcript of Proceedings" does not refer to the April assault; clearly, he did not consider it to be of relevance. All he noted was that "Mr Gluszek reported that he had been stopped by police on and off" (report of 29 November 2011, page 3).
Neither counsel addressed me in relation to the transcript of the plaintiff's evidence in the criminal proceedings, either in the written outline they asked me to consider, or orally. Although counsel invited me to read the affidavits in the file before hearing this application, I had not appreciated that the affidavit of Mr Ferguson of 30 January, which long predates this application (and is attached to a notice of motion to set aside one of the many subpoenae issued in these proceedings) was to be relied upon, so I did not read it. I accepted the statements from counsel that the criminal proceedings transcript contained no reference to the April incident or indeed anything of relevance to this application, and reserved judgment so that I could read all of the material put before me on 26 September. I realised almost immediately that the information I had been given during the hearing of the application was either incomplete or wrong.
The question of what a judge should do when neither party has referred to essential evidence was answered by the NSW Court of Appeal in Chouman v Margules (1993) 17 MVR 144. In Chouman, neither the parties nor the trial judge noticed that a police report tendered in the hearing referred to a 18 metres skid mark, The court stated (at [150], per Kirby P) that having admitted the report into evidence, it was "essential" that the trial judge should deal with the matter and disposing of the case before him (see also Whalan v Kogarah Municipal Council [2007] NSWCA 5).
In accordance with my obligation to draw this material to the attention of both parties (Ford v Nagle [2004] NSWCA 33), I arranged for a scanned copy of the relevant pages of the plaintiff's cross-examination and re-examination to be forwarded to both parties and invited submissions in reply to be provided by the following day. I have received further written submissions from both counsel. Neither sought orders to reopen their case, or to lead further evidence.
The plaintiff's evidence in the criminal proceedings relating to the 24 May assault
The evidence the plaintiff gave about the first incident was as follows:
"When did it come back to you? - ? - I just had a little bit more time, you know, to think about things.
Well, quite obviously? - What really happened on that night.
But - ? - And because there was a couple of other altercations and occasions with the same arresting officer within a couple of - you know, probably two months.
Well - ? - You know, I just - I - I had the - I had to get - you know -
Okay. One thing at a time here? - I had to work out exactly what happened on what night, you know?
I understand. So one thing at a time? - And I had a lot going on too.
Sorry? - I had a lot going on too at that stage in my life and that.
All right? - Didn't know where I was living and all that sort of stuff and -
Well, let's try to deal with those issues. When did it come back to you that you had seen the punch that you've just told us about? - Probably about - about a month after it happened. Two weeks - two months after it happened.
All right? - After the incident occurred.
So, what, you were just doing nothing in particular one day and it -? - No, I just remember having a good think about it.
- popped into your mind? No, no, listen, don't talk over the top of me. We'll get nowhere? - Yeah. Well, if you want to listen -
It has to be recorded? - to what I've got to say, listen, mate.
Don't interrupt me. I'm asking you a question? - Yeah.
Just wait till I finish and I'll do the same for you? - Right.
It's got to be recorded? - Yeah.
I said, were you on the occasion -? - Yeah, doing anything? No.
Listen, do not interrupt me again.
BENCH: Mr Gluszek, please -? - Yeah.
Thank you.
MR ZILLMAN: Were you doing anything in particular when this popped into your memory? - No, wasn't doing anything in particular.
Good. And this was a month or two later? - Yes.
Did you go to the police and endeavour then to correct your statement? - Mate, I was travelling Australia. Like, you know, that was the last thing on me mind.
All right. Well, did you at any point bring it to the attention -? - No.
- of the police? - No.
Did you at any time bring it to the attention of the Prosecutor? - No.
Did you bring it to the attention at any time of anyone in - in any form of authority? - No, I just remember what I remember.
All right. Now, the other matter you raised was that there was some other issues with the same policeman. Is that what you said to me earlier? - Yeah.
Were you - well, you tell me about what you're referring to and when these things occur? - Well, one night a group of three of us are walking up the street and a police officer come over and just arrested one of us for no reason whatsoever. That was Pete Davis' brother. Took him away. Pete tried to get him - you know, tried to say "Mate, he's done nothing" -
Mmm? - then they arrested Pete too. I went over there to say - it was the same officer - same arresting officer. I went over there to say, "Mate, they've done nothing", and he arrested me too.
Okay? - And then when we were back at the cop shop, same thing, sat us all down in a circle, handcuffed us. He was standing on the little bit of chain on my handcuffs which was according -
Right? - the most pain I've ever had in my whole life. Felt like me hands were going to get popped off.
When did that occur? - That was - I can't remember whether it was before or after the actual incident.
Well, you said - told me before it was after? - Pretty sure it was before.
Okay. What were you -? - I'd have to look at me charge sheets.
What were you charged for? - I wasn't charged that night for anything.
I see? - Nothing.
But you were arrested, handcuffed, taken back but -? - Yeah, he -
- not charged with anything? - No, he just kept me till 6 in the morning and then didn't even charge me.
What about Davis' brother, what was he charged with? - I don't think anyone was charged for anything that I can remember. Maybe his brother was charged for something but -
Where were you taken? - Back to the watch-house.
To the watch-house? - Yeah.
Into the watch-house? - Yep.
Okay? - Couldn't go to work the next morning.
All right. Was there another incident I thought you were going to mention too? Was there? - What?
Was there another occasion or was that it? - There might've been another occasion.
Well, did you have one in mind or not? - Not that I can -
All right? - think of right now.
Now, if that happened before this - I think you say that's your memory, is it? - Yeah, I - I can't, you know, say for sure.
Well, what's the relevance of that that you've just told me as to why you didn't put in your statement that there - that you actually saw a blow, a punch? - What's the relevance of it?
Mmm? - There is no relevance." (See annexure to the affidavit of Stephen John Ferguson sworn 27 January 2012, transcript of evidence before the Magistrate Court at T 3-61 to 3-63)
The hostile response the plaintiff received when he raised what the cross-examiner called "some other issues with the same policeman" during cross-examination explains why he believed that these matters had no relevance. This would have been confirmed by the re-examination by the prosecutor (at T 3-65 lines 20-49):
"Now, Mr Gluszek, I just needed to ask you, this morning did you speak to me prior to coming to Court? - Yeah.
And were you asked if you'd read your statement? - Yeah.
And do you recall what it was that you said about your statement? - Yeah, I just - no, not really - I just said, "Yeah, I've read it", I guess.
Did you, at that time, indicate if you had anything to add to it? - No, I didn't, no. I didn't think - yeah.
Were you asked whether you had anything that you needed to add to your statement? - No, not - yeah, I'm not sure, was I?
That's all right. Do you recall that in the conference you were asked whether there was - whether firstly, you'd read your statement? - Yeah.
Secondly, whether it was accurate? - Mmm.
And if you needed to tell us anything having read it? - Yeah.
Including if there was anything to add to it; do you remember that? - No, I don't. No, sorry.
Do you remember saying that the ambiguities in your statement remained? - Yeah. Well, the - the statement that I've given is, you know, fairly accurate as far as I'm concerned."
This unsympathetic response to the plaintiff's attempt to raise the issue of the prior assault, in my view, explains why the plaintiff said in his evidence before me that he thought both the prior assault, and the later assault, were not relevant. The earlier assault, and what happened to the plaintiff on the night of Mr Steele's assault, were not issues in the criminal proceedings at all. The plaintiff thought that the matters the subject of the trial were the relevant facts, not events happening a month beforehand, or the additional particulars of assault he now wishes to give about how he (as opposed to Mr Steele) was treated on the night of 24 May 2008.
Material fact of a decisive character within the plaintiff's knowledge
The plaintiff must show that there was a material fact of a decisive character relating to the right of action which was not known to, or within his means of knowledge before the expiry of the limitation period.
In Marsden, the plaintiff was unaware prior to reading an article in The Australian that injuries she suffered were the result of negligence on the part of her medical practitioner. The plaintiff in those proceedings did not know prior to that date that her injuries were caused by his negligence. In answering the question as to whether the plaintiff had taken all reasonable steps to find out that fact, Atkinson J noted (at [67]) that the plaintiff believed what the defendant told her, that it was her body that was at fault, not the surgery she had undergone. Atkinson J noted that the plaintiff was "very vulnerable psychologically" and that this went some way in explaining the level of trust she gave to the medical practitioner.
The same is the case here. Based on the response to his attempt to raise this matter in court, the plaintiff had ample reason for believing that the earlier incident about which he had attempted to give evidence, despite it not being in his statement, was irrelevant. The fact that this assault was not referred to in his statement would have reinforced this view. His reluctance to raise the matter in discussions with his doctors or when he first met Mr Khan in January 2012 is understandable in this context.
Even when Mr Khan did hear about the April 2008 incident, it would have been premature for him to advise the plaintiff to commence proceedings. A claim that there was a prior arrest and assault by the same police officer, against the same persons, but which had not been the subject of criminal charges at the same time as the second assault, would be an extraordinary claim, requiring meticulous investigation.
I accept the submissions of the plaintiff's solicitor and counsel that the other persons asserted to be witnesses needed to be interviewed, and that further documentation was needed, not least because such inquiries would have been necessary to ascertain the precise date upon which the first incident occurred. In addition, medical evidence as to the impact of this first incident was necessary. This was not obtained until 14 August 2012.
The importance of a person not only knowing, but taking the advice of, competent persons qualified in the respective fields of medicine, law and other facts was emphasized in Marsden, supra, at [20]:
"[20] What gives material facts a "decisive character" is governed by s 30(1)(b) of the Act. That subsection looks to the response of a reasonable person to the knowledge of material facts. Material facts are taken to be of a decisive character if, but only if, a reasonable person knowing those facts, and having taken the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts, would regard those facts as showing:
· that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
· that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action."
Courts have been more liberal in the interpretation of this section where the person bringing the action out of time is a victim of crime rather than a victim of a motor vehicle accident: Tiernan v Tiernan [1993] QSC 110 (approved in Stephenson v Queensland, supra, at [50] and [106]); MCA v Queensland [2011] QSC 298 at [23]. As counsel for the plaintiff pointed out in his oral submissions, there is a significant difference between a plaintiff knowing he has injured his hand in an accident and a victim of crime knowing that he has suffered a psychological injury. Mr Gluszek thought the events the subject of the criminal proceedings were what caused his problems, because this was the main issue in the criminal proceedings, and because it was after those events that he began suffering the symptoms which drove him to see a solicitor in January 2011.
I note there is no claim of prejudice (Newman v Queensland [2009] QSC 125 at [45]).
Conclusion
I am satisfied that the plaintiff had shown there were material facts of decisive character relating to the right of action, both on 24 May and 19 April 2008, which were not known to him or within his means of knowledge prior to expiry of the limitation period.
The extension of time which can be granted is a period of one extra year. The period therefore expired on 19 April 2011, and an extension can be granted so that the period of limitation expires at the end of one year after that date, namely 19 April 2012. The applicant's legal representatives state they were not informed by the plaintiff of the assault on 19 April 2008 until 25 May 2012 (paragraph 5 and 6 of the affidavit of Mr Khan of 25 June 2012) and could not competently give him legal advice until 14 August 2012. I am of the view that 14 August 2012 is the relevant date, and that the orders sought by the plaintiff for an extension of time should reflect that date.
The statement of claim, in its present form, is infelicitously drafted. The reference to "particulars of negligence" makes no sense, as there are no particulars of negligence provided. Whether the claim is one of negligence as well as assault, or whether this is a poorly pleaded claim for false imprisonment, this should be articulated clearly in the revised pleading, as the plaintiff may be entitled to discovery for claims which are not based on personal injury, which may be a more effective way for the parties to proceed with this action rather than by a series of subpoenae which are not answered for lengthy periods of time. In addition, if there is to be a claim for punitive (and/or aggravated) damages, this should be properly particularised. I have accordingly allowed 28 days for the plaintiff to file and serve the amended pleading.
The orders sought identify the proposed new pleading as the Third Amended Statement of Claim. In fact it would appear that only one statement of claim has ever been filed. The other documents are drafts. It will lead to confusion if this name for the pleading is adopted, and accordingly I have simply granted the plaintiff leave to file an amended pleading which incorporates these claims. It would be wise for the plaintiff to consider including all matters relied upon in terms of particulars of damages (including but not limited to particulars of aggravated damages) or any cause of action requiring particulars.
The correct form of the order to make for extension was not the subject of submissions before me. Unlike the orders made in cases such as Marsden, where the whole of the proceedings were commenced after the limitation period and the orders extend time to the date of filing of the statement of claim, this is a case where the proceedings were commenced in time and there is an application for additional claims, to which the limitation period applies, has been granted. The appropriate course is to extend time to the date ordered (namely 28 days from today) for the proposed amendments to be incorporated in the amended pleading.
I have not been addressed as to the issue of costs and I have granted liberty to apply.
Orders
(1) Pursuant to s 31(2) Limitation of Actions Act 1974 (Qld) the limitation period for the actions pleaded in paragraphs 5, 7, 8, 10, 11, 13 and 16 of the document entitled "Third Amended Statement of Claim" be extended to 28 days from today, namely 26 October 2012.
(2) The plaintiff be granted leave to file an amended Statement of Claim incorporating the causes of action set out in order 1, including particulars of the causes of action and of the claim for damages (including but not limited to the claim for punitive damages) by the date in order 1 above.
(3) Liberty to apply in relation to costs.
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Decision last updated: 02 October 2012
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