Jabbar v Gade (pseudonyms)

[2018] NSWSC 836

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Jabbar v Gade (pseudonyms) [2018] NSWSC 836
Hearing dates:	30 May 2018
Date of orders:	30 May 2018
Decision date:	30 May 2018
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(1) The notice of motion filed on 15 March 2018 is dismissed. (2) The defendant is to pay the plaintiff's costs of the notice of motion.
Catchwords:	CIVIL PROCEDURE – application to strike out statement of claim – limitation period – whether statement of claim brought after expiration of limitation period – whether proceedings brought outside of limitation period are statute barred – whether proceedings are an abuse of process because a defence exists – notice of motion dismissed
Legislation Cited:	Limitation Act 1969 ss 18A, 50A, 50C, 50D, 50F Uniform Civil Procedure Rules r 14.28
Cases Cited:	Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 State of New South Wales v Gillett [2012] NSWCA 83 Zaki v Better Buildings Constructions Pty Ltd [2017] NSWSC 1522
Category:	Procedural rulings
Parties:	Jabbar (a pseudonym) (Plaintiff) Gade (a pseudonym) (Defendant)
Representation:	Counsel: M Maconachie (Plaintiff) A Bithrey (Defendant)   Solicitors: Stewart & Associates (Plaintiff) NLS Law (Defendant)
File Number(s):	2017/203002

Judgment

1. A notice of motion was filed on 15 March 2018 by the defendant seeking orders to strike out certain paragraphs of the amended statement of claim which had been filed on 7 December 2017.

2. The amended statement of claim pleaded a series of physical and sexual assaults by the defendant upon the plaintiff leading to personal injury including both physical and psychological injury, economic loss, out of pocket expenses, incapacity for work and the need for ongoing medical and pharmaceutical treatment.

3. The basis of the defendant's application was expressed to be Uniform Civil Procedure Rule 14.28. The defendant relied upon an affidavit sworn by him which included in it the dates and places of the alleged assaults, noting that four out of five of those dates occurred more than three years before the filing of the initiating statement of claim in July 2017. That affidavit also confirmed in respect of the assault in 2014 that he had been charged and pleaded guilty.

4. The plaintiff filed no evidence.

5. Both parties provided written and oral submissions.

Applicant defendant’s submissions

6. The defendant's submissions addressed the assaults and batteries pleaded in the amended statement of claim, which identified as “Actions 1-5”, the first four having occurred in June 2007, December 2007, March 2013 and April 2014 respectively. Action 5 arose from an assault in July 2015 and is not the subject of this notice of motion.

7. Counsel for the defendant argued that s 18A of the Limitation Act 1969 applies because s 11 of that Act defines “breach of duty” as including trespass to the person, and actions in relation to that. It was argued that consequently, s 18A(2) applies to the plaintiff's first four alleged assaults to the effect that those actions are not maintainable because they were not brought within the three year limitation period, that period running from the date on which the cause of action first accrued to the plaintiff. Underpinning that argument is the assertion that the actions 1-4 first accrued to the plaintiff on the date on which each assault occurred.

8. The defendant also pleaded the limitation point in his Defence filed in February 2018.

9. The alternative argument made was that Division 6, if it is found to apply to the cause of action, would still extinguish Actions 1-4 of because s 50C provides for a limitation period of three years and that an action is “not maintainable” if brought after the expiration of the limitation period, which is three years from the date on which the cause of action is discoverable by the plaintiff.

10. “Discoverability” of the cause of action in respect of each of those four assaults occurred on the day of the assaults.

11. It was further argued that Actions 1 and 2, which were assaults that occurred in India over 10 years ago, have an abuse of process aspect to them by reason of the delay associated with the case being filed now, as well as the events having occurred overseas. These factors are so significant that a fair trial is not possible and would inflict an unnecessary injustice upon the defendant. In support of that submission counsel for the defendant relied upon the statements of the High Court in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [69]. This amounts to an abuse of process such as contemplated by Uniform Civil Procedure Rule 14.28(1)(c), and pursuant to that rule that this Court may, at any stage of the proceeding, order that the whole of or any part of a pleading be struck out.

12. Counsel for the defendant sought to illustrate this particular injustice by pointing out that medical records and/or witnesses would be likely to exist in India and this created an unfair prejudice to the defendant in defending these allegations that occurred over 10 years ago in a foreign country.

Submissions of the respondent plaintiff

13. In response, counsel for the plaintiff argued that s 18A of the Limitation Act does not apply because that section only applies to causes of action founded on negligence, nuisance or breach of duty.

14. I am not confident that argument is necessarily correct and I accept that the defendant's interpretation of s 18A is right in that it imports the definition from s 11 to include trespass to the person. However, s 18A(1)(c) of the Limitation Act makes it clear that s 18A does not apply to a cause of action to which Division 6 applies. Division 6, commencing as it does with s 50A, clearly includes a personal injury matter and provides that this Division applies to a cause of action for damages that relates to the death of or personal injury to a person regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise (emphasis added), provided subsection (2) is satisfied, that is that the act or omission occurred on or after the commencement of this Division, that is, on or after December 2002. Clearly all actions in the amended statement of claim occurred or arose after that time.

15. Counsel for the plaintiff correctly argued that therefore ss 50C, D and possibly s 50F would apply to provide the Court with a discretion to extend the limitation period, subject to evidence and the considerations set out in those sections.

16. Counsel for the plaintiff also correctly submitted that the proper way to view the limitation periods provided for by ss 50C and D is that they are in the nature of a defence, as opposed to a bar. In support of that submission reliance was placed on Zaki v Better Buildings Constructions Pty Ltd [2017] NSWSC 1522 at [21]-[30]. I accept that submission as correct.

17. It was also submitted that the defendant would bear the onus of proving that the cause of action was discoverable by the plaintiff, as stated in State of New South Wales v Gillett [2012] NSWCA 83 at [26]. It was also submitted that discharging that onus involved the defendant proving that the plaintiff knew, not only that she had sustained physical injuries by reason of the alleged assaults by the defendant, but also that she had sustained psychological injuries and that those injuries were legally actionable. In support of that submission Gillett at paragraphs [105]-[110] was cited. I accept those submissions.

18. It was submitted that for those reasons courts have frequently warned against seeking to have the question of limitation determined prior to final hearing, and that at this stage, the defendant cannot discharge the onus of demonstrating that those aspects are brought out of time, given those potential defences and the discretionary considerations pursuant to ss 50C and D that are yet to be argued and determined.

19. In response to the arguments regarding abuse of process, counsel for the plaintiff argued that there is no evidence that the plaintiff's cause of action has been invoked for an ulterior purpose and that there is no evidence before the Court demonstrating the difficulty in obtaining evidence from India or evidence capable of establishing such significant prejudice that the administration of justice would be called into disrepute.

20. Whilst there is power to summarily strike out a pleading, counsel for the plaintiff submitted that that should only be exercised where the lack of a cause of action can be clearly demonstrated, such as where it is so obviously untenable that it cannot possibly succeed or is manifestly groundless. In support of that submission, General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 was cited together with Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937. Counsel for the plaintiff submitted that it follows that the impugned pleading will be taken at its highest when referred to in any summary dismissal application.

21. I accept the plaintiff's submissions in respect of the application, or potential application, of Division 6 of the Limitation Act and that it amounts to a potential defence as opposed to a basis for dismissal or striking out of pleadings that arise from events more than three years ago.

22. I accept the plaintiff's submission that r 14.28 of the Uniform Civil Procedure Rules has not been made out.

23. I accept the plaintiff's submission that there has not been a demonstration by the defendant that the impugned aspects of the plaintiff's claim are manifestly groundless or an abuse of process.

24. I also accept that the defendant has not discharged an onus that any determination other than that the limitation defence, as with any other defence, should be left to be determined on its merits at the hearing.

25. Accordingly, I make orders as follows:

1. The notice of motion filed on 15 March 2018 is dismissed.

2. The defendant is to pay the plaintiff's costs of the notice of motion.

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Amendments

28 January 2022 - Names of parties pseudonymised, Family Court orders protecting the identities of the parties.

Decision last updated: 28 January 2022