Morris v State of New South Wales

[2005] NSWDC 10

CITATION:	Morris v State of New South Wales [2005] NSWDC 10
HEARING DATE(S):	10 October and 21 November 2005
JUDGMENT DATE:	24 November 2005
JURISDICTION:	Civil
JUDGMENT OF:	Rein SC DCJ
DECISION:	Motion dismissed.
CATCHWORDS:	Application for extension of time to bring proceedings - Whether plaintiff under a disability was substantially impeded in the management of his affairs by reason of incarceration
LEGISLATION CITED:	Felons (Civil Proceedings) Act 1981 Limitation Act 1969, ss 11, 52, 60C, 60E, 60I Police Act 1990, s 170
CASES CITED:	Adams v Kennedy (2000) 49 NSWLR 78 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Holt v Wynter (2000) 49 NSWLR 128 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Kotulski v Attard [1981] 1 NSWLR 115 Lackersteen v Jones (1988) 92 FLR 6 McLean v Sydney Water Corporation [2001] NSWCA 122 Parsons v Doukas (2001) 52 NSWLR 162 Peksen v A Buckle & Son Pty Ltd (unreported, 2 April 2004, DCt NSW) Salido v Nominal Defendant (1993) 32 NSWLR 524 Shortland Electricity v O’Connor [1999] NSWCA 87 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 State of NSW v Higgins [2005] NSWCA 244 Sydney City Council v Zegarac (1998) 43 NSWLR 195
PARTIES:	Robert John Morris (Applicant) State of New South Wales (Respondent)
FILE NUMBER(S):	3588/04
COUNSEL:	Campbell SC; Ms Gillies (Applicant) Temby QC; Mr Giagios (Respondent)
SOLICITORS:	Geoffrey Edwards & Co (Applicant) Crown Solicitor’s Office (Respondent)

JUDGMENT

1 The Applicant on the motion seeks an extension of time within which to bring proceedings against the Respondent, the State of New South Wales, in right of the NSW Police Service.

2 The proceedings which he seeks to bring concern a claim for assault upon him by three police officers and wrongful arrest and imprisonment at Castle Hill NSW. The relevant officers were originally proposed defendants but the Respondent accepts that it is vicariously liable for the conduct of the police officers, if it be established that they unlawfully assaulted the Applicant on the evening and morning of 18/19 December 1991 or otherwise acted unlawfully (which allegations are denied by the Respondent).

3 The application for extension is brought under s 60C of the Limitation Act 1969 (‘the Act’). Mr Campbell SC (who appears with Ms Gillies) eschewed reliance on s 60I of the Limitation Act.

4 The State, for whom Mr Temby QC with Mr Giagios appears, resists the application for extension of time on several grounds:

(1) that due to the lapse of time and related matters the Respondent will not have a fair trial;

(2) that the Applicant has not established that it is just and reasonable that time be extended;

(3) that even if the court were otherwise minded to extend time – the maximum five year extension permitted by s 60C(2) of the Act would not assist the Applicant.

5 The third issue is linked to a subsidiary point. The Applicant maintains that he was ‘under a disability’ within the meaning of s 52 of the Act because for significant periods (which I shall detail below) he was in prison in NSW and Queensland, in respect of various crimes of which he was convicted.

6 It is agreed that the Applicant was held in custody in NSW from 18 December 1991 to 10 February 1992; that he was on bail from 10 February 1992 to 4 August 1993; in custody from 4 August 1993 to 3 May 1994 (after being sentenced for crimes of theft and dishonesty); in custody in Queensland from 5 May 1994 to 29 June 1994; on bail from 30 June 1994 to 18 April 1995; in full time custody from 18 April 1995 to 22 October 1997 (for other crimes committed by him); released to a limited form of detention on 22 October 1997 with him residing at Maconochie House and he was released to parole on 2 February 1998 in Queensland.

7 Initially Mr Campbell sought to run an argument based on further periods of home detention as part of the disability period but he abandoned this in submissions. There is no practical significance in the difference between 22 October 1997, which I understand the Defendant to contend for on its alternative submissions, and 2 February 1998, and I shall proceed on the earlier date as the last date on which disability operated if at all.

8 The first question is for how long was the Applicant under a disability, and absent any application for extension, when did the limitation period expire?

9 It was agreed that the limitation period, absent any disability, would have expired on 19 December 1994.

10 The Respondent submitted that:

(1) incarceration was not in fact a disability within the meaning of the legislation;

(2) that even if it was a disability, that disability was not the cause of any delay in commencement of proceedings;

(3) that even if contrary to the Respondent’s position it was a disability and was the cause of delay, s 52(3) is to be read as permitting the period of disability to exclude the period of disability and not more.

11 Apart from Kotulski v Attard [1981] 1 NSWLR 115, counsel were not able to find cases on s 11(3) relevant to this matter, and they found only two on s 52 of the Act. Section 11(3)(b) provides that for the purposes of the Act a person is under a disability while the person is:

‘for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of :

(i) any disease or any impairment of his or her physical or mental condition,

(ii) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1958 ,

(iii) war or warlike operations, or

(iv) circumstances arising out of war or warlike operations.’ (my emphasis)

Only subparagraph (ii) is relied upon by the Applicant, and s 11(3)(a) of the Act was not relied upon.

12 Mr Temby sought (in relation to s 52 of the Act) an opportunity to rely on further written submissions and Mr Campbell to reply to those in writing. Mr Temby’s submissions were due on 18 October 2005, Mr Campbell’s on 26 October 2005 and submissions in reply on 29 October 2005. There was some controversy about the Respondent’s submissions in reply and I gave Mr Campbell until yesterday to respond to those further submissions, which he did by some further helpful submissions.

13 The first question which needs to be answered is whether the Applicant was substantially impeded in the management of his affairs in relation to the cause of action in respect of the limitation period by reason of him being lawfully restrained in custody. There was no dispute about the 28 day period being met.

14 By legislation in this State, convicted felons are expressly permitted to bring civil action and further to do so whilst in custody subject to leave of the court in which proceedings were brought: see Felons (Civil Proceedings) Act 1981. I accept Mr Campbell’s point that the fact that a felon in custody can bring proceedings does not automatically lead to the conclusion that he is not ‘substantially’ impeded in the management of his affairs in relation to the cause of action in respect of the limitation period.

15 There was dispute between the parties as to whether there was a need to show a causal nexus between the disability and the failure to bring the cause of action. Mr Temby argued that if the Applicant’s evidence that he knew of no requirement to bring proceedings was accepted, then his disability had no impact on the failure to bring proceedings. Mr Campbell argued that this introduced a dimension with which the Act was not concerned. I agree with Mr Campbell in that if disability is established it is not necessary to then examine the relationship between the disability and the failure to bring proceedings (the disability of children is an obvious example). However in the case of a s 11(3)(b) disability it is a question of fact as to whether the person was substantially impeded in the management of his affairs. ‘Substantial’ does not mean total impediment nor does it mean ‘trivial or minimal’ impediment: Kotulski (supra) at 117C per Slattery J and see p 118C. Whilst I accept that there may be difficulties in obtaining a detailed statement from a person in custody and enabling proper instructions to be given there is in this case evidence that by the end of 1991 a detailed statement had already been provided by the Applicant (see Annexure “A”; and see also Annexures “B” and “C” to the Applicant’s affidavit of 5 June 2004), and by 1993, I infer, his solicitor, Mr Marx, had access to the police documents and medical records relating to the examination of the Applicant (see Annexures “F” to “T” and see Annexure “E” p 4 of transcript of 4 August 1993 – no copies of Mr Marx’s letters referred to in the correspondence from the Ombudsman were produced), all of which was sufficient to mount a successful campaign with the Ombudsman. Although Mr Morris did give evidence of the limitations on phone access and checks on correspondence there is nothing to indicate that the proceedings before the Ombudsman were impeded by reason of his incarceration and no evidence that a step required for commencement of civil proceedings (for example a fresh medical examination) could not be arranged. An examination of the Plaintiff by a medical practitioner was carried out soon after the injuries were reported and a report was prepared. There is evidence (see p 4 of the transcript of 4 August 1993) that a psychiatric report had been subsequently obtained. Thus whilst I would not exclude the possibility of full time custody being a substantial impediment I am not persuaded that in this case it was. It follows therefore that the limitation period expires in October 1994 and the court by virtue of s 60C(2) has no power to extend the limitation period beyond October 1999. That conclusion disposes of the matter but against the possibility I am in error I shall deal with the other issues in the case on the basis that the limitation period was suspended to 22 October 1997 and ended on 22 October 2000.

16 There was another construction issue which focuses on s 52 of the Act. Mr Temby argued that if contrary to his primary submissions, the Applicant was under a disability, s 53(1)(d) and (e) should be construed so that the Applicant was under a disability for so long as he was in full time custody and that time did not run, but that once out of gaol the disability ended and the Applicant had an extension of time to the extent only of the days in custody. Mr Campbell argued that the effect of paragraph (e) was to require an extension of three years from the last period of disability.

17 Part of the problem with s 52 may be its use of cumulative subsections and possibly also the fact that many causes of action covered by the Act have limitation periods of six years rather than three. If ‘paragraph’ in the phrase ‘but for this paragraph’ is read as meaning paragraph (e), then the limitation period would be suspended for only that period that the Applicant was in gaol and the limitation period would expire before the lapse of three years after the date on which the Applicant last ceased to be under a disability, with the consequence that by virtue of paragraph (e) the limitation period is extended so as to expire three years after the date that he last ceased to be under a disability. That interpretation basically gives the Appellant three clear years following the cessation of the disability and is, I think, supported by the Court of Appeal’s decision in State of NSW v Higgins [2005] NSWCA 244. I do not think that it is inconsistent with the comments of Sheller JA in Shortland Electricity v O’Connor [1999] NSWCA 87 at [13] which were obiter.

18 It follows on the acceptance of the ‘substantial impediment’ argument that the Applicant had until October 2000 within which to commence proceedings, but he did not do so until July 2005.

19 There was a further argument put by the Defendant which was that the Court had no power to extend the time from October 2000 until 25 July 2005 because the Act in s 60C(2) says that the maximum period for which the limitation period can be extended is five years, and an extension to July 2005 is more than five years beyond the limitation of three years. This argument is either a reiteration of the argument to which I have earlier referred or if not, entails the notion that where a limitation period is suspended due to disability the person under the disability does not have the right to an extension of time if the period of disability is five years or more. I can see that extensive prejudice might arise to a defendant who has to face the prospect of a plaintiff who has had a disability (say as a child) for many years and then seeks an extension not based on disability but on other reasons, and I refer to this point below in consideration of s 60E(1)(b), but I do not think that the power to extend the limitation period in s 60C(2) is to be read down – there is a power to extend a three year limitation by a further five years – the disability if established prevents the limitation period from running.

20 The principles relevant to an application pursuant to s 60C and s 60E for an extension of the limitation period, and similar ameliorative provisions, have been the subject of extensive consideration by the courts.

21 In Peksen v A Buckle & Son Pty Ltd (unreported, 2 April 2004, DCt NSW) I attempted to draw together the principles derived from a number of cases dealing with s 60 and similar legislation. Mr Temby and Mr Campbell agreed that the principles are correctly stated in what follows drawn from Peksen, save that Mr Campbell expanded upon the issue of prejudice and also emphasised the actual terms of s 60E(1)(b) on prejudice, to which I shall return.

22 The principles to be applied are found in Salido v Nominal Defendant (1993) 32 NSWLR 524, as further expounded by Holt v Wynter (2000) 49 NSWLR 128 but excluding any statutory requirement of ‘full and satisfactory explanation’.

23 Salido and Holt v Wynter are both cases involving s 52(4) of the Motor Accidents Act. Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 is a decision of the NSW Court of Appeal dealing with s 151D, a similar provision of the Workers Compensation Act. Holt and Itek took into account the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 which, like this case, did not involve the MAA or the Workers Compensation Act.

24 In Holt v Wynter, Sheller JA, with whom Meagher JA, Handley JA and Brownie AJA agreed, drew a distinction between a situation where there has been a long and unexplained delay which has not resulted in significant prejudice to the potential defendant, and one where leave would result in significant prejudice to the potential defendant. In the latter circumstance, an applicant would not demonstrate that it was fair and just to grant leave: see [116].

25 In Salido, Gleeson CJ listed the guidelines which he said might be of assistance in obtaining consistency of approach in decision-making:

‘1. Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence.

2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the Applicant for leave has demonstrated that it is fair and just that leave should be granted.

3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.

4. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.

5. Leave under s 52(4) may be refused if it would be plainly futile to grant it, and in that connection an Applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material’ (at 532-3).

26 In Holt v Wynter, Priestley JA analysed these guidelines and those matters indicated as pertinent by Kirby P, and Powell J in Salido considered Brisbane South and expressed the view that the words ‘and whether there can be a fair trial’ probably needed to be added to proposition 2 of Gleeson CJ set out in [25] above. For a trial to be fair it is not required to be ideal: McLean v Sydney Water Corporation [2001] NSWCA 122. In judging whether there is significant prejudice the question needs to be considered not in a vacuum but in the context of the circumstances of the case: South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477. The phrase ‘fair and just’ appears to be synonymous with ‘just and reasonable’ as used in s 60C.

27 There are a number of other points which need to be considered and these are:

(1) that the relevant discretion is a discretion to grant leave not a discretion to refuse it: Sydney City Council v Zegarac (1998) 43 NSWLR 195. The onus remains on the Applicant to satisfy the Court that in all the circumstances of the case it is just and reasonable that an order be made;

(2) that the question is not a balancing exercise as to the relative prejudice that might have resulted to the plaintiff as compared to the defendant: see Mason P in Zegarac (supra);

(3) that even in the absence of proof of significant prejudice, the Court is not bound to grant leave to commence proceedings, for example where there has been long and unexplained delay: Parsons v Doukas (2001) 52 NSWLR 162;

(4) an earlier deliberate decision by an Applicant not to bring proceedings at common law may be sufficient to lead to refusal of the application: see Itek (supra);

(5) the legislation under which leave is sought may have specific provisions which alter the principles or approach required: Holt v Wynter at [99]-[100];

(6) the material date at which the question of prejudice is to be considered is the date of the application: Brisbane South at 548-9 per Toohey and Gummow JJ, and at 555-6 per McHugh J. The fact that the prejudice would have existed within the limitation period does not preclude the Respondent from relying upon it;

(7) s 60E requires the Court to have regard to all the circumstances of the case and specifically to have regard to the matters enumerated in (a)-(g) inclusive of the subsection.

28 So far as prejudice is concerned Mr Campbell drew attention to the words of Mason P in Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 200 questioning whether the reasoning of McHugh J in Brisbane South was applicable to s 60E(1)(b) given its different terms, a matter which the President left open. I proceed on the basis that the first matter which needs to be addressed is what the statute says. Section 60E(1) unlike s 31(2) of the Queensland Limitation Act does specifically deal with delay.

29 The Defendant argued that in ascertaining prejudice one had to have regard to the fact that although statements made to the Ombudsman or for the Ombudsman’s enquiry were available, regard ought to be had to the terms of s 170 of the Police Act which precludes documents being admissible in proceedings other than those referred to in s 170(1)(a) or where the witness is willing to produce it. The Applicant objected to reliance on this point because no objection was made when the documents were tendered, but also answers the point on a number of other bases. I do not think s 170(1)(a) assists the Applicant because of s 170(1)(b), but I accept the Plaintiff’s point that the refusal by a witness to allow the document to be produced, whilst a matter for the witness (and not the State), ought not be seen as a prejudice to the State which can be relied on by it in answer to the Plaintiff’s application to extend time. If their own witnesses will be assisted by the statements they can agree to their production – if they do not, that prejudice to the Defendant does not really arise out of the delay.

30 Mr Campbell took issue with the assertion of prejudice pointing out that the matters the subject of the complaint had been very thoroughly examined by the Ombudsman, and he submitted that the claim of prejudice was overblown. He also drew attention to the very specific requirements of s 60E(1)(b) – ie ‘the extent to which having regard to the delay there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available’.

31 Section 60E(1)(b) requires regard to be had to the prejudice to the Defendant arising by reason of that evidence that would have been available if the proceedings had been commenced ‘within the limitation period’ is no longer available.

32 This gives rise to the question of whether ‘within the limitation period’ means within the three year period or within the limitation period as extended by reason of disability. I have not found this an easy matter to determine because on the one hand the legislation clearly intended to suspend the running of the limitation period but ‘commenced within the limitation period’ seems as a matter of construction to refer to the limitation period as imposed in the Act. It does not say ‘the limitation period and or the period extended by this Act’. It seems unfair that in considering the impact of delay in commencement of proceedings on the Defendant an extensive lapse of time due to the suspension of the limitation period is not a matter which could be taken into account. Assume that a person was convicted of murder and sentenced to 20 years in maximum security, and assume that his confinement rendered him under a disability within the meaning of s 11 of the Act with consequent suspension of the period of limitation; on release the Defendant could face a further extension of up to five years and the loss of documents or witnesses would not be relevant to such an extension if the approach taken by the Applicant is correct. Mr Campbell submitted that the same argument would apply to an infant, and I accept that it would in relation to a disability of that kind as well. The legislation makes it clear that disability leads to suspension without regard to effect, but extensions of time are in a different category. Section 60C uses the phrase ‘the limitation period’ and clearly it there means the period as set out for the relevant cause of action in Part 2 Division 2.

33 I do not think the matter is free from doubt but having regard to the underlying principle of Limitation Acts as articulated by McHugh JA in Brisbane South, I would adopt an interpretation that permitted regard to be had to loss of documents and death or illness of witnesses after the expiry of the original limitation period, not the period as extended.

34 I think the position on prejudice is very evenly balanced. It is clear from the affidavits read by the Defendant that notebooks and records have been innocently destroyed and it does appear that one witness at least may be unfit to give evidence (I say ‘may be’ because unfortunately I cannot exclude the possibility that the potential witness was feigning a condition, there being no medical corroboration of him suffering illness) and others cannot be located and a period of almost 14 years has passed since the events that are the subject of the claim. On the other hand the matters that are the subject of the claim were extensively investigated by the Ombudsman and documents which would have been regarded as important are likely to have been viewed at that time. Notebooks of the policemen involved are less likely to be of assistance if they were not of assistance in exonerating them in the early 1990s. I recognise that the allegations against the police are serious in content and that is a relevant matter, but also relevant is the fact that an independent tribunal has determined that the allegations made by the Applicant were well founded. In my view, such prejudice as there is, is limited of itself and would not be a basis for precluding the grant of an extension, although I think the existence of some prejudice is relevant when considering the question of delay in bringing the proceedings which I deal with below.

35 So far as s 60E(1)(h) is concerned, there is evidence that the Applicant suffered physical injuries and psychological injuries as a result of what occurred in police custody. Without wishing to minimise the violence which on the Applicant’s case was meted out to him without any justification, there is no evidence of any long term physical injuries. The psychological injuries case is one which may well turn out to be problematic because of the very extensive and serious criminal conduct engaged in by the Applicant before incarceration, his incarceration and the evidence of what the Applicant himself has said about the impact of those crimes upon him (see Exhibit “J” p 2). Nevertheless the Defendant admits that there is sufficient evidence of injury to preclude any argument of futility on this basis. I think it is also relevant to take into account (although perhaps not strictly under this subparagraph) the serious wrong that the alleged police conduct entailed (if established) and the prospect that a significant amount could be awarded for aggravated and exemplary damages: see Adams v Kennedy (2000) 49 NSWLR 78; Lackersteen v Jones (1988) 92 FLR 6. I would not refuse leave on this ground.

36 So far as the matters identified in s 60E(1)(a), (c), (d) and (e), the Applicant knew immediately that he had suffered physical injury and the connection between his condition and the alleged assault and wrongful imprisonment.

37 If my conclusion that the Applicant was not under a disability up to October 1997 is erroneous and he was under a disability until his release from full time custody to Maconochie House on 22 October 1997, then any explanation for delay need cover only the period from 22 October 1997 to July 2005 when a statement of claim without leave was filed on his behalf. The Defendant accepts that it was notified in June 2004 about the claim by the solicitors for the Applicant and takes no point in relation to the delay from June 2004 to July 2005. Thus the focus is on the period October 1997 to June 2004.

38 In his affidavit the Applicant in paragraphs 70-77 gives an explanation for his failure to bring proceedings, namely that although he was receiving advice from Mr Marx, a solicitor, between 1991 and 1994 and Mr Marx drafted documents in relation to the complaint to the Ombudsman he was never told ‘of any potential right that I might have against the State of NSW other than the complaint that was made to the Ombudsman’: paragraph 71. He says that he was never told that there was a time limit on the making of such a claim and that he first became aware of a time limit at the end of 2003 when he saw his current solicitors.

39 He says he would have ensured that any time limit was met and he says:

‘At all times I have instructed those that represent me to pursue all remedies that I might have against the state in whatever form’. (See paragraph 73 and see also paragraph 76.)

He says that he ceased seeing Mr Marx shortly before he instructed his present solicitors (ie shortly before the end of 2003), and that Mr Marx told him he should see other solicitors if he wanted to ‘do something further about getting some money off the State’: paragraph 75.

40 There is no affidavit from Mr Marx (and he has had no opportunity to respond to the, at least, implicit criticisms of him) but without more it would appear that Mr Marx has given the Applicant no advice about the possibility of action in tort against the State and no warning about the loss of rights if action is not brought in time.

41 There are several difficulties with this however. First the last correspondence passing between Mr Marx and the Applicant in evidence is a letter of 29 November 1994 in which Mr Marx advises on the positive response from the Ombudsman and noting that the work done in that regard has been done without charge, but that:

‘we advise that at this point we must start to make some charge for our time directly to yourself or alternatively, we recommend that the Ombudsman’s office contacts you directly and bypasses this office.

Please advise what course of action you would like us to follow.’

42 No response to that letter or any subsequent correspondence is in evidence and there is evidence that the Applicant reported on 22 September 1998 to his Queensland parole officer that the Applicant:

‘intends to make arrangements for the trip to see his solicitors as a priority. He expects an offer which he believes will assist him to set up his computer business’.

43 This links to his statement in his application for release to work home detention on 28 October 1996 that:

‘One very important unresolved issue that I will be dealing with is the ongoing court action against the NSW Police for which I have had a solicitor engaged since 1991.

As of 8 March 1994 the Office of the Ombudsman recommended the Police Service consider payment of compensation to me for the pain and suffering sustained whilst in police custody.

Through counselling with Geoff Topping about this matter, I am of the opinion that I am proceeding in a responsible manner to finalise my legal actions against the NSW Police.’

44 In cross-examination the Applicant stated that his reference to Court action and legal actions were a reference to the Ombudsman. He denied that he had ever understood that he had a right to bring action against the Police or State directly. The Applicant did agree with the proposition that he had considered legal action against the Police for some years and even before 1994 because he considered the Police conduct as unacceptable behaviour, but he later in cross-examination denied that he knew he could sue the Police.

45 Accepting that the Applicant was referring to his pursuit of his rights through the Ombudsman, it was clear by October 1996 that those proceedings had produced no compensation and it is not surprising that by September 1997 the Applicant was determined to pursue the matter with his solicitor just as he told his parole officer he was. The trail however goes cold after that – the Applicant gives no evidence of any meetings or correspondence with Mr Marx or any other solicitor (other than in paragraph 75). None of the copies of letters sent by Mr Marx or by the Applicant to the Ombudsman are in evidence. The Applicant’s explanation for not having visited his solicitor (as he had indicated he intended) was that he was fearful that if he applied to visit NSW the NSW Police would be advised of this by Queensland Police and his whereabouts would be known. The Applicant had obtained permission from Queensland Parole Service to visit his sick uncle in Mudgee and he had done so. No mention was made in the affidavit of this impediment and no reason was advanced as to why he could not write to his solicitors in connection with the proceedings or could not have instructed Queensland solicitors, if he had wished, who could then liaise with the Sydney solicitors. I did not find the Applicant’s explanation in cross-examination for his failure to take action or seek advice from October 1997 to 2004 as convincing.

46 The Applicant had someone to contact well familiar with the circumstances from whom he could seek advice (assuming that none had been given on the question of civil proceedings prior to that date). The failure of the Applicant to take civil proceedings was quite consistent with an expectation initially that he could obtain a monetary payment through the Ombudsman’s office and or a perception that if he commenced civil proceedings he would not be likely to obtain any significant amount. I note that the statement of claim which was eventually filed on his behalf did not seek aggravated or exemplary damages. One can speculate as to what may have been the real reason for inaction from 1997 to 2004 but it is for the Applicant to fully explain the delay and in my view he has not done so in a persuasive fashion.

47 Chief Justice Gleeson’s enunciation of principles in Salido set out at [25] (supra) point to the importance of lack of diligence and the reason for delay in consideration of whether or not to grant an extension and the absence of any persuasive explanation is a significant matter: see Parsons v Doukas (2001) 52 NSWLR 162 at [1], [67] and [77]. Even alone I would regard this an impediment to the grant of an extension in this case but a further matter is the extensive nature of the delay and the existence of some prejudice to the Defendant by reason of the passage of time.

48 I conclude that were it otherwise open for the Court to do so, it is not just and reasonable to extend time.

49 It follows for the reasons I have given that the motion should be dismissed.

50 I will hear the parties on the issue of costs.

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