Olive v Johnstone

Case [2006] NSWCA 21

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Olive & Anor v Johnstone   [2006]  NSWCA 21

FILE NUMBER(S):
40145/05

HEARING DATE(S):               31 October 2005

DECISION DATE:     21/02/2006

PARTIES:
Dion Leonard OLIVE  (First Claimant) 
STATE OF NEW SOUTH WALES  (Second Claimant)  
Adam Christopher JOHNSTONE  (Opponent) 

JUDGMENT OF:       Handley JA Santow JA Tobias JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 3844/03

LOWER COURT JUDICIAL OFFICER:     Curtis DCJ

COUNSEL:
G GAIGOS  (Claimants) 
A C JOHNSTONE (in Person) 

SOLICITORS:
I V Knight, Crown Solicitor (Claimants) 
A C Johnstone (Opponent) 

CATCHWORDS:
PRACTICE AND PROCEDURE – Whether relevant limitation period suspended – Limitation Act 1969 (NSW) s11 and s18A - Whether evidence absent that relevant disease or impairment of opponent’s mental condition existed for a continuous period of 28 days or upwards having regard, inter alia, to his close involvement in litigation - whether nature of disability sufficient to suspend limitation period - Whether evidence sufficient in relation to physical disability to satisfy s11(3). 

LEGISLATION CITED:
Limitation Act 1969 (NSW) s11; s14; s18A; s52; s60
Supreme Court Act 1970 (NSW) s75A(7)

DECISION:
See para [65]: 
(1)  Leave to appeal granted from the decision of Curtis DCJ of 8 February 2005. 
(2)  That the appeal be upheld. 
(3)  That the opponent’s Notices of Motion filed 15 and 29 December 2004 be dismissed. 
(4)  That the respondent pay the claimants’ costs of the appeal and the notices of motion, but grant to the respondent a certificate under the Suitors’ Fund Act, if otherwise qualified. 

JUDGMENT:

-

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40145/05
DC 3844/03

HANDLEY JA
SANTOW JA
TOBIAS JA

21 FEBRUARY 2006

Dion Leonard OLIVE & Anor v Adam Christopher JOHNSTONE

Judgment

  1. HANDLEY JA:  I agree with Santow JA. 

  2. SANTOW JA: 

    INTRODUCTION 

    Leave to appeal is sought and if granted a concurrent hearing on the application of  (a)  the first claimant and first defendant in the proceedings, Dion Leonard Olive, and  (b)  the second claimant and second defendant in the proceedings, State of New South Wales (on behalf of four police officers in the service of the State of New South Wales).  The opponent and plaintiff is Adam Christopher Johnstone. 

  3. Curtis DCJ on the application of Mr Johnstone held that the limitation period on his claimed cause of action in tort had been suspended for three years pursuant to s52 of the Limitation Act 1969 (NSW) (“the Act”). He did so on the basis of a finding that Mr Johnstone was “a person under a disability” within the meaning of s11(3) of the Act. He found that Mr Johnstone suffered from a mental disorder whereby he had a mental impairment which enured substantially since 8 (should read “18”) August 1997 being the date of the alleged assault of which Mr Johnstone complains. He further found that Mr Johnstone was “substantially impeded in the management of his … affairs” during the limitation period, this being in relation to the cause of action…

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Details
AGLC
Olive v Johnstone [2006] NSWCA 21
Case
[2006] NSWCA 21
Decision Date

CaseChat Overview and Summary

This case involved an appeal by the claimants, Olive and the State of New South Wales, against orders made by Curtis DCJ in proceedings commenced by the opponent, Adam Johnstone. Johnstone claimed damages for wrongful arrest, false imprisonment, and assault, alleging these torts occurred on 18 and 19 August 1997. The claimants contended that the proceedings were not maintainable due to the expiry of the relevant limitation periods. Johnstone had sought extensions of time to bring his claims, including an extension for an action founded in tort under section 14(1)(b) of the Limitation Act 1969 (NSW) and, alternatively, under the personal injury provisions of section 60G of the Act.

The central legal issues before the court were whether the running of the limitation period for Johnstone's claims had been suspended, and if so, on what grounds. Specifically, the court had to determine if there was sufficient evidence to satisfy section 11(3) of the Limitation Act regarding physical disability, and whether Johnstone's mental condition, or his close involvement in litigation, prevented him from managing his affairs such that the limitation period should be suspended under sections 11 and 18A of the Act. The court also considered whether Johnstone's applications for extensions of time constituted an abuse of process.

The court found that the primary judge erred in concluding that Johnstone had been substantially impeded in managing his affairs. The reasoning focused on Johnstone's demonstrated capacity to understand and give instructions regarding his cause of action, and his evident appreciation of the effect of limitation periods, despite a disordered life. The court noted that there was no evidence that Johnstone was unable to reason normally about his legal matters, nor had a tutor been appointed. The court applied the principles that the suspension of a limitation period requires evidence of a substantial impediment to the management of one's affairs, and that a party's demonstrated ability to conduct litigation weighs against such a finding.

Consequently, the appeal was upheld. The opponent's Notices of Motion filed on 15 and 29 December 2004 were dismissed. The respondent was ordered to pay the claimants' costs of the appeal and the notices of motion, with a certificate granted under the Suitors’ Fund Act if otherwise qualified.

Orders

Orders of the court

See para [65]:

(1) Leave to appeal granted from the decision of Curtis DCJ of 8 February 2005.

(2) That the appeal be upheld.

(3) That the opponent’s Notices of Motion filed 15 and 29 December 2004 be dismissed.

(4) That the respondent pay the claimants’ costs of the appeal and the notices of motion, but grant to the respondent a certificate under the Suitors’ Fund Act, if otherwise qualified.

Background

Background to the litigation

To the extent that the opponent seeks to rely upon physical disability, the issues are similar, namely whether there was evidence sufficient to base the decision in favour of the opponent in relation to physical disability so as to satisfy s11(3) of the Act. SALIENT FACTS These can be stated in uncontroversial fashion as follows: In proceedings commenced in the District Court on 21 August 2003, the opponent, Adam Johnstone, claimed damages in respect of the torts of wrongful arrest, false imprisonment and assault. As to those alleged torts, they are said to have been committed on 18 (and 19) August 1997. The six-year limitation period for the intentional torts which did not cause “personal injury” therefore expired on 18 August 2003 (three days before he filed his statement of claim); see s14(1)(b) of the Act. The opponent alleged that four police officers in the service of the second claimant, the State of NSW, wrongfully arrested him and thereafter falsely imprisoned him. The opponent alleged that the first claimant, Dion Olive, assaulted him. The claimants contended in the first instance that the proceedings were not maintainable because of s18A of the Act. It lays down, as I have said, a three-year limitation period for a cause of action (relevantly) “for damages for personal injury” (the latter defined very widely in s11(1) of the Act as “any … impairment of the physical or mental condition of a person”). By notice of motion filed on 3 September 2004, the opponent sought an extension of the limitation period, pursuant to s60C of the Act, relevantly applicable to damages for personal injury. In the course of the hearing of the Notice of Motion on 1 and 2 December 2004 (then before Quirk DCJ), the opponent conceded that the Notice of Motion was not brought under the correct section of the Act and consented to its dismissal. Quirk DCJ refused the claimants’ application to dismiss the proceedings and instead granted the opponent leave to file another Notice of Motion to extend the limitation period. By Notice of Motion filed on 15 December 2004, the opponent sought an extension of the six year limitation period for “an action founded in tort” under the Act (s14(1)(b)) and under Pt3 r2 DCR. By amended Notice of Motion filed 23 December 2004, the opponent sought a further order that, in the event that his application to extend the limitation period for an action founded in tort was unsuccessful, the limitation period be extended pursuant to the personal injury provisions in s60G of the Act. That application was disallowed by Curtis DCJ (as being an abuse of process, on the basis that Mr Johnstone had expressly waived such reliance before Quirk DCJ). The appeal relates to orders made by Curtis DCJ in relation to the 15 and 23 December 2004 Notices of Motion, finding that the running of the limitation period had been suspended between 18 August 1997 and 18 August 2000 and ordering that costs of the motion be costs in the cause. RELEVANT LEGISLATION

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The opponent gave evidence before Quirk DCJ that he was able to understand and consider advice and give instructions about his cause of action (WB, 68-69). There was no evidence before the primary judge that the opponent was not able to reason normally about matters relevant to his cause of action. Neither in these proceedings nor in the other proceedings has a tutor been appointed. OVERALL CONCLUSION AND ORDERS In light of all the evidence, I conclude that the primary judge erred in finding that the opponent had been substantially impeded in the management of his affairs in respect of these causes of action. With respect, he failed to give proper weight to the capacity Mr Johnstone had demonstrated in conducting his litigious affairs and his evident appreciation of the effect of a limitation period. The opponent has in fact demonstrated considerable ability in the management of his legal affairs, despite his disordered and itinerant life. Accordingly, I would propose orders as follows: (1)Leave to appeal granted from the decision of Curtis DCJ of 8 February 2005. (2)That the appeal be upheld. (3)That the opponent’s Notices of Motion filed 15 and 29 December 2004 be dismissed. (4)That the respondent pay the claimants’ costs of the appeal and the notices of motion, but grant to the respondent a certificate under the Suitors’ Fund Act, if otherwise qualified. TOBIAS JA: I agree with Santow JA.

Ratio Decidendi

Legal Principle Established

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