Johnson v State of New South Wales; Jones v State of New South Wales; Fitzgerald v State of New South Wales

[2017] NSWSC 1613

Supreme Court

New South Wales

Medium Neutral Citation:

Johnson v State of New South Wales; Jones v State of New South Wales; Fitzgerald v State of New South Wales [2017] NSWSC 1613

Hearing dates:

22 November 2017

Date of orders:

22 November 2017

Decision date:

22 November 2017

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

Costs of the Defendant’s Notice of Motion reserved in each matter.

Catchwords:

COSTS - applications by Defendant that Plaintiffs make separate applications for extension of limitation periods - Plaintiffs required to file Notices of Motion to bring on limitation applications - costs of Defendant’s Notices of Motion reserved

Legislation Cited:

Civil Procedure Act 2005
Limitation Act 1969
Uniform Civil Procedure Rules 2005

Cases Cited:

Johnson v State of New South Wales [2017] NSWSC 1591
Jones v State of New South Wales [2017] NSWSC 1601

Fitzgerald v State of New South Wales [2017] NSWSC 1602

Texts Cited:

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Category:

Procedural and other rulings

Parties:

2016/104277

 

Russell Leigh Johnson (Plaintiff)
State of New South Wales (Defendant)

 

2015/264460

 

Andrew Graham Jones (Plaintiff)
State of New South Wales (Defendant)

 

2015/349923

  Bede Gregory Fitzgerald (Plaintiff)
State of New South Wales (Defendant)

Representation:

2016/104277 (Johnson) and 2015/264460 (Jones)

 

Counsel:
Mr K W Andrews (Plaintiff)
Mr M Hutchings (Defendant)

 

Solicitors:
Fitzpatrick Solicitors Pty Limited (Plaintiff)
Henry Davis York (Defendant)

 

2015/349923 (Fitzgerald)

 

Counsel:
Mr K W Andrews (Plaintiff)
Mr M Hutchings (Defendant)

  Solicitors:
de Luca-Leonard (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s):

2016/104277; 2015/264460; 2015/349923

Publication restriction:

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Judgment

1. JOHNSON J: Yesterday, the Court heard Notices of Motion brought by the Defendant, the State of New South Wales, in separate proceedings brought by Russell Leigh Johnson as Plaintiff (2016/104277) and Andrew Graham Jones as Plaintiff (2015/264460). Listed for hearing today was a separate Notice of Motion brought by the Defendant, the State of New South Wales, with respect to another Plaintiff, Bede Gregory Fitzgerald (2015/349923).

2. The three sets of proceedings are not related in the sense that the Plaintiffs bring their own separate claims seeking damages from the Defendant. It is not said that the three Plaintiffs are linked in a manner which would ordinarily see consolidation of proceedings. However, each claim has similarities in that the Plaintiff was a serving member of the New South Wales Police Service (as it then was) in periods in the 1980s and the 1990s, ending in the early 2000s. Each Plaintiff alleges that he was exposed to traumatic incidents in the course of his duty which have caused psychiatric injury to him. The claim in each case alleges that the Defendant is liable to the Plaintiff for certain deficiencies (failure to provide a safe system of work) which have given rise to injury.

3. Limitation issues were raised in either the Statement of Claim or the Defence, or both, with respect to each Plaintiff. The Defendant, in each case, urged the Plaintiff to bring on a separate application for extension of time with respect to any limitation period under the Limitation Act 1969. In each case, the Plaintiff declined to do so indicating that those were issues for consideration and determination at the final hearing of the substantive claim in each case.

4. Ultimately, the Defendant filed Notices of Motion in each case seeking orders which essentially sought the separate and early determination of the limitation issues in each case, whether that was to be done by way of separate determination of those issues under Rule 28.2 Uniform Civil Procedure Rules 2005 or a summary judgment application.

5. Yesterday, I gave judgment in the proceedings involving Mr Johnson as Plaintiff: Johnson v State of New South Wales [2017] NSWSC 1591. I have heard submissions and considered the material with respect to the other Plaintiffs as well. I have reached the position where I have announced that the outcome with respect to Mr Jones and Mr Fitzgerald will be the same as the outcome with respect to Mr Johnson. I have indicated that I will deliver separate reasons in each case later today. This will allow those reasons to be conveniently available with respect to each set of proceedings given that they are likely, at some time in the future, to travel separately in the course of their resolution in this Court. (The Court has since delivered reasons in those matters - Jones v State of New South Wales [2017] NSWSC 1601 and Fitzgerald v State of New South Wales [2017] NSWSC 1602).

6. Following my judgment in Johnson v State of New South Wales, the parties have given some thought overnight to the orders which should be made in light of the Court's ruling. Draft short minutes have been prepared in each case on the basis that the decision in the cases of Mr Jones and Mr Fitzgerald will be the same as that in Mr Johnson.

7. The effect of the orders will be that the Plaintiff will file a Notice of Motion and serve evidence. The Defendant will have an opportunity to consider that material. If the matters are to proceed to a contested hearing, then the Defendant will serve its evidence and the matters will come back before me initially for mention on 27 April 2018 but ultimately for directions on 5 July 2018 by which time all the evidence ought be on. The Notices of Motion in each case, which I heard yesterday and today, will all be stood over to 5 July 2018.

8. The way forward, I trust, will involve the matters remaining with me (for the next phase at least) so that the work that the Court has undertaken in familiarising itself with the materials in each case may be utilised at that stage as well.

9. It must be said that the Defendant, in bringing these motions, has achieved a measure of success given the positions adopted by each side before yesterday's hearing. In broad terms, I have accepted the Defendant’s arguments - the Court has accepted that the limitation issues in each case should go forward and be identified in a manner which has not been achieved so far in the proceedings in each case.

10. It must be said, as well, that the positions of the parties have been modified to an extent. Although the Defendant's Notices of Motion sought orders for separate determination and other alternative orders, it was accepted yesterday that what ought in fact happen was that the Court should form a general view as the best way forward, but not move to resolve the separate determination application. It was accepted, in effect, that that would be premature because there was very limited information known about these aspects of the proceedings.

11. Likewise, there was some movement on the part of the Plaintiffs in each case. In correspondence prior to the hearing, there had been a fairly clear position that all these matters should await the final hearing and not be the subject of any earlier determination. Yesterday, it was accepted by Mr Andrews, counsel for the Plaintiff in each case, that there was an expectation that the limitation issues would be considered first, not necessarily well in advance of the hearing, but certainly as a first step.

12. There are still some aspects of these applications which remain outstanding. The reality is that the Defendant’s Notices of Motion are not being resolved to finality today. They are being adjourned, and the parties on each side are to take further steps to progress the litigation with the letter and spirit of s.56 Civil Procedure Act 2005 no doubt being prominent in everyone's minds.

13. On the face of it, the Defendant can point to a measure of success in these arguments. At the same time, there are some unresolved aspects.

14. In the end, it seems to me that the appropriate position for the Court to adopt concerning costs is that the relevant “event” (for the purpose of the costs following the event rule) is not necessarily complete at this time.

15. I propose to reserve the question of costs in each matter. What will be available for the future, of course, is the separate judgment that I would have (by the end of today) delivered in each matter, together with the present judgment I am delivering which deals with costs in each matter. In the particular circumstances of these cases, I am satisfied that this is the appropriate order to be made. That, of course, does not foreclose in any way the question of costs for the future. Indeed, it leaves it open for determination at an appropriate time (most likely by me).

16. Accordingly, the costs orders which I will make formally with respect to the matters of Mr Johnson and Mr Jones will be that the costs of the Notices of Motion heard on 21 November 2017 are reserved. With respect to Mr Fitzgerald, the order will be that the costs of the Notice of Motion heard on 22 November 2017 are reserved.

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Decision last updated: 29 November 2017