State of New South Wales v Harlum - [2007] NSWCA 120

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: State of New South Wales v Harlum [2007] NSWCA 120

HEARING DATE(S): 23 March 2007

JUDGMENT DATE:
25 May 2007

JUDGMENT OF: Beazley JA at 1; Tobias JA at 100; Basten JA at 109

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed with costs.

CATCHWORDS: STATUTE OF LIMITATIONS – extension of limitation period – suspension of limitation period as a result of disability under s 52 of the Limitation Act 1969 (NSW) – respondent substantially impaired in management of affairs in relation to cause of action by reason of mental condition – respondent suffering from major depressive illness - respondent unable to reason normally about various aspects involved in bringing a claim

LEGISLATION CITED: Crown Proceedings Act 1988 (NSW)
Law Reform (Vicarious Liability) Act 1983 (NSW)
Limitation Act 1969 (NSW) ss 11(3)(b), 13, 14(1)(b), 18A, 52
Suitors’ Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW) ss 75A, 101
Uniform Civil Procedure Rules 2005 (NSW) Pt 28

CASES CITED: Azshion v North Coast Area Health Service [2006] NSWSC 769
Harnett v Fisher [1927] AC 573
Hawkins v Clayton (1988) 164 CLR 539
Kotulski v Attard [1981] 1 NSWLR 115
Olive v Johnstone [2006] NSWCA 21
State of New South Wales v Julianne Higgins bht David Benedict O'Shea; Barnardos Australia v Julianne Higgins [2005] NSWCA 244
State of New South Wales v Mulcahy [2006] NSWCA 303
Stingel v Clark (2006) 80 ALJR 1339
Stubbings v Webb [1993] AC 498
The State of New South Wales v Bennie [2005] NSWCA 172
Walsmley v Cosentino [2001] NSWCA 403

PARTIES: State of New South Wales (Appellant)
John Harlum (Respondent)

FILE NUMBER(S): CA 40346/06

COUNSEL: JE Marshall SC; PM Sibtain (Appellant)
K Andrews (Respondent)

SOLICITORS: IV Knight Crown Solicitor (Appellant)
WH Parsons & Associates (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20003 of 2002

LOWER COURT JUDICIAL OFFICER: Kirby J

LOWER COURT DATE OF DECISION: 18 May 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Harlum v State of NSW [2006] NSWSC 443

- 58 -

CA 40346/06

BEAZLEY JA
TOBIAS JA
BASTEN JA
25 May 2007

State of New South Wales v John Harlum

Headnote

Facts

On 24 July 1991, the respondent was arrested and charged with the murder of a well-known criminal and with a number of drug offences. He was kept in custody until his trial in September 1992. On 10 November 1992, a jury acquitted the respondent of the murder and the remaining drug offence (Justice Wood having already directed a verdict of acquittal in respect of one of the drug offences).

Shortly after being released the respondent received threatening telephone calls from, persons he believed to be the police. He left Sydney out of fear for his safety and the safety of his family. The respondent returned to Sydney in 1999 and subsequently was seen by a number of psychiatrists. He was diagnosed with a major depressive illness of moderate to severe intensity.

The respondent commenced proceedings against the State of New South Wales by Statement of Claim filed on 2 January 2002, claiming damages for wrongful arrest, false imprisonment and malicious prosecution.

The limitation period for the causes of action alleged by the respondent was six years: s 14(1)(b) of the Limitation Act 1969 (NSW) (the Limitation Act). The proceedings were thus commenced after the expiration of the limitation period. Subsequently, the respondent filed a Notice of Motion under s 52 of the Limitation Act. Section 52 provides that where a person has a cause of action and the limitation period has commenced to run, the limitation period will be suspended where the person is under a “disability”.

A person is under a “disability” for the purposes of the Limitation Act where the person is “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 any disease or any impairment of his or her physical or mental condition”: s 11(3)(b)

At trial on the Notice of Motion, Kirby J, held the respondent had suffered from a mental condition which constituted a disability within the meaning of s 11(3)(b) until 1 January 2000 and therefore, the limitation period had been suspended until 1 January 2000. As a result, the Statement of Claim was filed within the limitation period. The State appealed from his Honour’s decision.

Held:

Per Beazley JA (Tobias JA agreeing):

(i) A disability for the purposes of s 11(3)(b) of the Limitation Act may arise during the course of the running of the limitation period and does not need to exist at its commencement, provided that the respondent otherwise brought himself within the provisions of s 11(3)(b). The fact that the respondent was not suffering from a disability at one or other times during the limitation period was not determinative of the question whether the limitation period had or had not been suspended: [70]

(ii) It is not necessary for a party seeking an extension of the limitation period to give evidence in express terms of being substantially impeded in commencing an action during the time of claimed disability. That is the very matter which is the ultimate question for determination: [73]

(iii) It is apparent from his Honour’s reasons that the chosen date was somewhat arbitrary, reflecting the time at about which the respondent found himself capable of seeing a solicitor. There was no error in approaching an application to extend the limitation period in that way. It is sufficient for a court to determine a duration of disability up to a certain point in time, notwithstanding, that there may thereafter be some ongoing disability: [74]

(iv) The enquiry under s 11(3)(b) is directed to determining whether the person claiming to be under the relevant disability is able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice, and to give instructions about any action: [92]

Kotulski v Attard

(v) A fundamental aspect of bringing a claim is that it requires the exercise of willpower to initiate the claim. However, having the willpower is not the only question, in making a decision to commence an action, the person is also making a decision to continue with the claim: [94]

Kotulski v Attard

[1981] 1 NSWLR 115 (applied)

(vi) The State’s serialisation of questions concerning whether a person fits within s 11(3)(b) provided a false simplicity and omitted the fundamental aspect of being able to reason normally about the various aspects that are involved in bringing a claim: [93]

(vii) There were no errors in the trial judge’s reasoning: [99]

Per Basten JA (dissenting):

(viii) In order to rely on s 11(3) of the Limitation Act, the respondent needed to establish that he was substantially impeded in the management of his affairs in relation to the cause of action “by reason of” the impairment of his mental condition. The trial judge did not clearly address the causative links between the respondent’s fear and his depressive illness and his failure to commence proceedings. The evidence did not establish that the respondent’s failure to bring proceedings was by reason of his depressive illness, but rather that the relevant impediments were his fear and financial constraints. The trial judge should have found that the limitation period had not been suspended and the appeal should be upheld: at [146] and [151].

(ix) The matter should be remitted for consideration of his application for an extension of time as an action for “breach of duty” under ss 18A and 58 of the Limitation Act: at [116]

Stingel v Clark

CA 40346/06

BEAZLEY JA
TOBIAS JA
BASTEN JA

25 May 2007

State of New South Wales v John Harlum

Judgment

1 BEAZLEY JA: On 24 July 1991, John Harlum (the respondent) was arrested and subsequently charged with the murder of a well-known criminal, Roy Thurgar and with a number of drug offences. A Mr Garry Nye was arrested on the same day and also subsequently charged with the murder of Roy Thurgar. The arrest was conducted in somewhat spectacular style, with the respondent’s home being surrounded by approximately 30 police and with a helicopter hovering overhead. The arrest of Mr Nye was carried out in similar circumstances. Both were kept in custody until their trial in September 1992. Justice Wood directed a verdict of acquittal in respect of one of the drug offences. On 10 November 1992, a jury acquitted both accused of murder and the remaining drug offence.

2 The respondent commenced proceedings against the State of New South Wales (the State) by Statement of Claim filed on 2 January 2002, claiming damages for wrongful arrest, false imprisonment and malicious prosecution. The State was sued pursuant to statute as being responsible for the actions of the New South Wales Police Service and the Director of Public Prosecutions: see, respectively, the Law Reform (Vicarious Liability) Act 1983 (NSW) and the Crown Proceedings Act 1988 (NSW).

3 The limitation period for the causes of action alleged by the respondent is six years: s 14(1)(b) of the Limitation Act 1969 (NSW) (the Limitation Act). The proceedings were thus commenced after the limitation period had expired. Subsequently, the respondent filed a Notice of Motion seeking an order for an extension of the limitation period under s 52 of the Limitation Act. Section 52 of the Limitation Act provides, relevantly:

“52(1) … where:

(b) the limitation period fixed by this Act for the cause of action has commenced to run, and

(c) the person is under a disability,

(d) the running of the limitation period is suspended for the duration of the disability, and

(e) if, but for this paragraph, the limitation period would expire before the lapse of three years after:

(i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or

(ii) the date of the person’s death,

4 “Disability” is defined in s 11(3)(b) of the Limitation Act in these terms:

…

(b) 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, …

5 On 6 September 2006, Kirby J ordered, pursuant to Pt 28 of the Uniform Civil Procedure Rules 2005 (NSW), the separate determination of the following two questions before any trial in the proceedings:

“(1) Did the plaintiff suffer from an impaired mental condition which constituted a disability within the meaning of s. 11(3) of the Limitation Act 1969 and if so, for what periods?

Limitation Act

6 On 6 September 2006, his Honour gave the following answers to the separate questions as follows:

“(1) Yes, until 1 January 2000.

7 The State appeals from his Honour’s answer to the separate questions. As the determination of a separate question is an interlocutory judgment, leave of the Court to appeal is necessary: s 101(2)(e) of the Supreme Court Act 1970 (NSW) (the Supreme Court Act).

8 In my opinion, leave to appeal should be granted. The claim, if it proceeds and is successful, may result in substantial damages. More importantly, however, claims of this nature involve important questions for the administration of justice, involving as it does, the question of wrongful conduct by members of the police force and claims of wrongful arrest and false imprisonment.

Background facts

9 At the time of his arrest, the respondent was aged 47 and was working in a second-hand car dealer business. He was married, but separated, from his wife and was living in a de facto relationship. He had two sons from his marriage. Through working at the car yard, the respondent met a person by the name of Danny Shakespeare, who had purchased a number of vehicles from the car yard, but had failed to make full payment for them. The respondent had apparently sought out Mr Shakespeare in relation to the non-payment.

10 The respondent did not know the murder victim, Roy Thurgar. He was arrested and charged on the basis of information given to police by Danny Shakespeare, who was a paid police informer with an extensive criminal record. Prior to being charged with this murder and other offences, the respondent had no criminal record, had been in continuous employment since leaving school, and was a person of good character.

11 The respondent gave evidence that at the time of being charged, he was told by one of the arresting police officers, Wayne Gordon, that the police knew that the respondent wasn’t responsible for the murder but the police had been told to charge him. The respondent also gave evidence that it was alleged against him that he had killed another man at Kings Cross. This was disproved during the course of hearing when the man was located by the respondent’s solicitor and brought to court to show that he was alive.

12 In his affidavit sworn 20 December 2004 in support of his application for an extension of the limitation period, the respondent said:

“39. It was very difficult for me when I was in gaol. I knew I had no involvement in the alleged murder of Roy Thurgar. My life had been turned upside down by what had happened. I missed my boys and I knew that whatever happened people would think because I was in gaol I was a bad person. I felt alone, sad and frustrated. On some occasions I lost hope. I found it hard to understand my feelings, everything seemed hopeless.

40. My wife and boys had supported me throughout the period that I was in gaol despite the fact that Monica, my wife and I had broken up some years prior to me being charged. I still retained a deep commitment to my wife and my boys and even since the time we broke up I saw my boys on a daily basis and was involved in their day to day upbringing.

41. One of the hardest things I had to deal with from the time I was in gaol was the fact that I could not see my boys on a daily basis and be part of their development. I felt depressed and during this time I didn’t feel like seeing some people on occasions.

42. During the Hearing there were allegations that I was part of some conspiracy to not only kill Roy Thurgar but I was involved in the drug trade. I have never been involved in any drug trade. I did not have a criminal record at that time.

…

44. I was left with no doubt as to the magnitude of the conspiracy to frame Garry Nye and me for the murder of Roy Thurgar. It was total disbelief to hear what went on during the trial and how one by one people were shown to have lied in respect of my involvement. In particular the main police witness an informant named Danny Shakespeare.

Events following the trial

13 About two weeks after his acquittal, Mr Terracini SC, who appeared for the respondent at trial, advised the respondent of his right to bring proceedings for wrongful arrest and false imprisonment. Mr Terracini informed the respondent, however, that he would not be entitled to Legal Aid to bring that claim and it would be necessary to go to a private solicitor. The respondent replied to Mr Terracini that he didn’t have any money and asked, rhetorically, “if Legal Aid won’t do it, how do I do it?”

14 Following his acquittal, the respondent went to live with his former wife and their two sons. However, over about a 10 month period, he was subjected to police harassment. The harassment started when he was pulled over by five police cars whilst he was driving to visit his brother. The police dragged the respondent out of his car and searched him personally and searched his car, pulling everything out of it, including seats and door trims. The police told him that they were only conducting a “routine check”.

15 Thereafter, he received threatening telephone calls from, he believed, the police. The calls were from the same caller and threatened, “[i]f you say or do anything, your family will be killed”. The respondent moved house, to his brother’s place, where he again received telephone calls, this time threatening his brother and his family. Thereafter, the respondent went to live with a cousin, where again he received threatening telephone calls from an “anonymous male caller”.

16 The respondent said that he spoke to Mr Terracini about the telephone calls in early 1993, expressing his concern about them, stating, inter alia, “[t]hey ring me everywhere I go, it’s not safe”. Mr Terracini replied, saying, “[t]his is what happens when you get tied up with these types of people. They will get someone to come looking for you”.

17 The respondent described his feelings at that time as being “very down and alone”. He believed that if he stayed in Sydney he would be putting his family, including his former wife and children, his brother and his family and his cousins at risk. He said that the person who had been ringing him “had found me at all of the places I had stayed since I had been acquitted”. He decided to leave Sydney and went to live on a farm owned by a friend in Urana, near Albury. This was in about mid-1993. When describing his feelings at this time in his affidavit evidence, he said, “I was feeling down but it was not until I saw Dr Westmore that I realised how these events had affected me”.

18 When the respondent first left his wife’s home he did so without giving any explanation to her or the children as to why he was leaving. When he decided to leave Sydney, he told no one where he was going or why he was going. He did not tell his family his whereabouts. Sometime later, he contacted Mr Terracini and gave him a telephone contact number.

19 Shortly after arriving at his friend’s farm in Urana, the respondent had a couple of threatening telephone calls. The calls then stopped. The respondent agreed in cross-examination that when the telephone calls stopped, he considered that whoever was making the calls was satisfied that he was in the country and was going to stay there.

20 On 27 April 1995, the respondent went to Urana Police Station to pay some outstanding warrants issued against the owner of the farm. The police officer with whom he dealt generated an Information Report based upon information that the respondent was said to have provided to him. In the Information Report the police officer stated that he had had several conversations with the respondent over the previous 12 months in which the respondent had made a number of “boasts” to him, including that he was “sueing [sic] the NSW police service over a wrongful arrest etc. after he served 2 years for a gangland murder”. The Report also stated that the respondent had “boasted” to the police officer about committing armed hold-ups in the Sydney metropolitan area from which he netted a large amount of money. The police officer concluded the report stating:

“due to the nature of the information [the respondent] has told me i [sic] decided to submit this information report. i [sic] cannot judge the truth or validity of the information.”

21 The respondent was not cross-examined about the statements attributed to him in the Information Report.

22 Around about this time, the respondent made contact with his former wife and family and arranged for his sons to visit, which they did once or twice during the time that he was away from Sydney.

23 In 1995, during the course of the Wood Royal Commission into the New South Wales Police Service, Commission officers spoke to Mr Terracini and indicated that they would like to interview the respondent in connection with his dealings with the police involved in his arrest. Mr Terracini obtained the respondent’s agreement to be interviewed on the basis that he did not have to come to Sydney. Arrangements were then made for the interview to take place in Wagga Wagga. Mr Terracini attended and, on occasions, actively participated in the interview. Mr Terracini described the respondent’s presentation at the interview in these words:

“From information given to me by [the respondent] and his actions and presentation I believe that he believes there was a real risk of serious harm and that he was very scared.”

24 The respondent said that following the interview with the officers from the Wood Royal Commission, he “felt even more concerned”, as he assumed that some of the police officers involved in his case “were going to be in trouble” and he felt that he was getting “deeper and deeper in a problem that wasn’t mine”.

25 In 1996, the respondent was charged with being in possession of a number of firearms without a licence. He pleaded guilty to the offences. A report in the local newspaper said that when making submissions in respect of sentence, the duty solicitor, who appeared for the respondent, informed the Court that the respondent had one of the weapons for his own protection after receiving death threats from the police.

26 On 2 October 1997, the respondent was interviewed by an Inspector of Police at Albury. The Police Inspector recorded that the respondent said that he had been told in the telephone calls “not to come back to Sydney”. The Inspector also recorded that the respondent had told him that he had received 15 to 20 such calls in the past 12 months and he believed that they were made by the police officers who arrested him, or their superiors. The Inspector reported that the last call the respondent had received was about a month prior to the interview.

27 This report differs markedly from the respondent’s affidavit account where he said that the phone calls stopped about a month after he left Sydney in about mid-1993. It also differs from his cross-examination where he agreed that he did not receive any further threatening telephone calls after the Wood Royal Commission had concluded. The Commission concluded in May 1997.

28 In about 1998, the respondent left Urana and moved to Albury, where he commenced working as a car salesman. He also worked as a wholesale car salesman on his own account for a period. He agreed that he could carry out both of those jobs.

29 The respondent was specifically cross-examined about his mental state during the time he was in Albury in the following terms:

“Q. You don’t claim, do you, there was any mental condition that was getting in the way of your ordinary living when you were living in Albury?
A. Yes, the mental condition of being locked up for 16 months for something I had nothing to do with, it was a nightmare, and still is and always will be. A man who has never been locked up for anything in his life, not even a parking ticket, and locked up for murder and nobody will ever understand, and people wonder why I am an angry and bitter person. I was a happy person and now I am one of the most bitter persons in the world.

Q. And that is because you say you dwell upon your arrest and imprisonment?
A. I don’t dwell on it, it’s just there in my mind 24 hours a day; that those people could actually do that to me. It’s like somebody pulled my name out of a telephone book, all over a piece of garbage called Danny Shakespeare.

Q. But, you were capable of working in Albury?
A. Yes. Sorry for the outburst.

30 The respondent had further contact with police in September 1998, when he was contacted by police about enquiries they were making in respect of a person known as “Bertie Kidd”. The respondent met with the police on two occasions in respect of this matter and the police reported that during these times the respondent “seemed willing to assist with our enquiries”. In February 1999, police were making further enquiries in respect of the death of Thurgar and the respondent was interviewed by police at Albury. The police officers who interviewed the respondent on both occasions gave affidavit evidence that the respondent appeared “willing to assist”. They also said that the respondent did not mention having received threatening telephone calls. However, the trial judge noted that the fact of having received telephone calls was not challenged in the proceedings.

31 In June 2000, the respondent contacted one of the police officers involved in the Thurgar enquiry to inquire “what had been happening”. He was informed that the enquiry was ongoing. There was another occasion of contact with the police during this period, when the respondent telephoned the police when he heard shots being fired on the farm.

32 The respondent returned to Sydney in 1999. In his affidavit, he explained how he felt leading up to his return:

“63. When I was away I tried to keep to myself. There was not a day that did not go by that I did not think of my boys or how I could become involved in this whole mess. I knew I had changed. I felt different but even despite all of the police asking me questions I never really felt that things had changed to make it safe for me to go back to Sydney. It was like I always kept thinking about the hopelessness of my situation. Here I am stuck down here. If I do anything to go back I risk putting people’s lives at risk.

64. I recall that in 1999 I decided that enough was enough. It had been so long. [My] boys had grown up. If I stayed any longer away I would miss out completely on their lives. I knew the boys had it tough without their father and whilst I always believed their mother had done her best there was so much time that I had to make up.

33 This evidence was not the subject of cross-examination. He explained further in re-examination that:

“Because of what was going on, threats against my children and things like that, I had no intentions of coming back to Sydney until this matter had been quietened down and been settled.”

34 The respondent, in his affidavit, then gave the following evidence about the commencement of proceedings against the State:

“67. I remember speaking to Garry Nye. The word had got around that I was back. We talked about a case that he had against the police for damages because of his arrest, spending time in prison and being acquitted. He told me that his solicitors were Carroll & O’Dea. He said that if he could run his case so could I. He told me the name of the solicitor, it was Diane Farah. I think it took me a couple of months to decide to go and see her but I went and saw her. We had a long meeting and there were other meetings with a barrister. I know she said that we would have to commence proceedings in the Court. I had to see a doctor. I went to the doctor. I recall it was Dr Westmore.”

35 It is apparent from the transcript of the hearing before Kirby J that the respondent’s recollection of dates was imprecise. In particular, when re-examined as to the report to the police inspector that his last telephone call had been about a month before the interview, he said that he did not remember what he had told Inspector Day and that it was possible that the last telephone call could have been in 1997, but he did not remember.

The medical evidence

36 The respondent’s claim that he was suffering from a disability was based upon his being “substantially impeded in the management of his … affairs in relation to the cause of action … by reason of … [an] impairment of his … mental condition” within the meaning of s 11(3)(b) of the Limitation Act. He relied upon the expert medical evidence of Dr Westmore, forensic psychiatrist, and of Dr Gertler, psychiatrist.

37 The respondent first saw Dr Westmore on 19 February 2002, at the instigation of his solicitor. Dr Westmore obtained a history of the arrest and trial. On being questioned as to the impact on his life of this experience, the respondent reported to Dr Westmore:

“I’ve never been arrested or anything in my life. I was shattered. I didn’t believe it. I still have trouble talking about it. I’d rather not discuss it with anybody.”

38 Dr Westmore questioned the respondent “specifically [as to] the psychological impact on him of his arrest.” Dr Westmore reported that the respondent replied that he had:

“… anger, I’ve still got anger, I just hate and despise the New South Wales Police Department, I’ve got no faith in them. I find it very hard to express how I feel about it all.”

39 The respondent described his actual experience in gaol as being “shattering”. In particular, he told Dr Westmore about the extent of the violence that he witnessed in gaol. In describing the effect that various events had had on him generally, he said to Dr Westmore:

“It was a combination of things, threats on my son, my lost business, I just lost everything.”

40 The respondent explained a change in his mood affect, from being a “happy person” who worked hard to someone who had become “very angry and bitter”. He said that he didn’t talk to customers, he abused them and was short with people. He said he did not go anywhere near crowds. He described having reduced energy levels and being anergic, that is, suffering from passivity and a lack of mental energy.

41 Dr Westmore described the respondent during the interview as presenting as:

“… an extremely intense man, he showed no smiling behaviour, his affect and mood were severely restricted. I thought he was an angry man.”

42 He said that the respondent presented as “an alert and attentive historian”, but again described his mood in these terms:

“His affect was extremely intense. His mood state was restricted, I thought despondent and angry.”

43 Dr Westmore diagnosed a major depressive illness of moderate to severe intensity. He gave a differential diagnosis of a “severe adjustment disorder with depression” or, alternatively, a “dysthymic disorder”.

44 Under the heading “Psychiatric Diagnostic Issues”, Dr Westmore reported:

“On the balance of probability at the time this man was arrested at home, taken to a police station and questioned, later charged and placed into custody, he would have experienced the acute emotions of fear, anxiety, apprehension and acute intense emotional distress. His incarceration would have been accompanied by feelings of despair, perhaps hopelessness and helplessness. The other predominant affect experienced by this man is one of a persistent, pervasive anger. It is difficult to determine whether this is an emotional condition arising on its own or whether it is occurring in the context of his depressive illness.”

45 By way of opinion and conclusion, Dr Westmore stated:

“… from a psychiatric perspective he suffers from a significant depressive condition which requires moderate to urgent psychiatric intervention …

There is a direct and positive relationship between your client’s psychiatric problems and the arrest and subsequent events …

46 Dr Westmore commented that at a clinical level, there was no evidence of any organic cognitive impairment, although he added:

“… depression can affect a person’s capacity to attend and concentrate and their memory.”

47 The respondent was re-examined by Dr Westmore on 1 March 2005. On that occasion, the respondent reported that he was having problems with his memory and Dr Westmore understood that this included problems remembering dates. On this occasion, the respondent volunteered to Dr Westmore that he had left Sydney and the reason that he did not do anything about initiating court proceedings:

“… for so long is because my children and my brother’s children are the most important things in the world to me”.

48 Dr Westmore noted that the respondent’s affect and mood were “both very restricted, intense and anxious” and he observed some irritability that he believed may indicate some underlying depression, although he believed that the respondent’s depression had lessened in intensity since the last consultation. Dr Westmore believed that the respondent might also be suffering a post-traumatic stress disorder, as “he certainly had some symptoms consistent with that condition”.

49 Dr Westmore directly addressed the question of whether the respondent had a disability as defined in s 11(3)(b) of the Limitation Act. Dr Westmore set out the definition. He then said:

“I believe [the respondent] falls within this definition.

He reports that after he was released from custody he received numerous threatening phone calls. He reports he became fearful for himself but more particularly for the life and well being and of [sic] his immediate family and extended family. He left Sydney because of these fears and essentially he went into hiding.

On the balance of probability during this period [the respondent] was severely incapacitated by feelings of fear, anxiety, apprehension and probably depression. These emotions are likely to have substantially impeded his capacity to consider and/or to proceed with actions against the police or other authorities whom he believes may have harmed him following his initial arrest.

50 The respondent was seen by Dr Gertler for a psychiatric assessment on 20 February 2002. Dr Gertler was of the opinion that the respondent had:

“… developed symptoms of a chronic post traumatic stress disorder [including] sleep disturbance with nightmares related to his imprisonment, hypervigilance and a fear of being in crowds, constant rumination about the arrest and his imprisonment, anhedonia and emotional and social withdrawal.”

51 Dr Gertler was also of the opinion that the respondent was “chronically depressed”. He considered that the respondent’s chronic post traumatic stress disorder had developed “on the basis of his arrest and imprisonment”.

52 The respondent was examined by Dr John Champion, psychiatrist, at the instance of the State. The examination took place on 22 September 2005. Dr Champion was specifically asked to report upon whether the respondent had suffered a disability within the meaning of s 11(3)(b) of the Limitation Act. Dr Champion expressed the opinion that the respondent had possibly been suffering from an Adjustment Disorder with anxious mood in relation to the period in prison prior to trial and to the reported threatening telephone calls which had continued over several years thereafter. Dr Champion considered that there was no evidence of observable emotional distress, anxiety, depression, or any other psychiatric disorder when he interviewed him in September 2005. He expressed the opinion that it was:

“… most likely that [the respondent] has not had any problems with Adjustment Disorder with anxious and depressed mood since his return to Sydney. It also seems most likely (probable) that any Adjustment Disorder suffered prior to that was of mild to moderate degree.”

53 Dr Champion expressed the opinion that he did not think that:

“… either prior to his return from Urana to Sydney or after that [the respondent] would qualify as suffering an impairment which would cause him to be ‘incapable of managing his affairs in relation to the cause of the action’.”

54 Dr Champion considered that he:

“… would regard 1999 as a time when any Adjustment Disorder would most likely have been totally resolved.”

55 Dr Champion concluded:

“Whilst there may have been some disability from the Adjustment Disorder with anxious and depressed mood whilst living and working at Urana I do not believe that this would have constituted a disorder which would cause [the respondent] to be unable to reason normally about the matters relevant to the potential cause of action, to understand and consider advice or to give instructions about any actions. Consistent with this therefore, it is my opinion that [the respondent] has not suffered from impairment in relation to the information you have provided with regard to the Limitation Act of 1969.”

The trial judge’s determination

56 The trial judge, Kirby J, reviewed the evidence relating to the respondent’s arrest, imprisonment and acquittal and the period thereafter, from the various sources to which I have referred above. His Honour also reviewed the medical evidence. He then expressed his conclusion at paras [66] to [74], noting that there was no challenge to the account that had been provided by the respondent as to the ordeal. Rather, the challenge that the State made to the respondent’s application was as to the effects of that ordeal and whether he was disabled by reason of it, or disabled for as long as he claimed.

57 Kirby J briefly summarised the ordeal, categorising it as “terror” which was “almost unimaginable”, being the “stuff of nightmares and television drama”. He referred to the aftermath and the police harassment. His Honour then said:

“[69] It is instructive to ask: how would you expect a rational person, who was not disabled, to behave once their ordeal came to an end? First, you would expect them to immediately resume their relationships with their children, that being an important aspect of their life before the ordeal began, and to maintain such relationships. Secondly, you would expect them to seek justice, that is, to take steps to ensure that those responsible for the ordeal were held accountable and that just compensation was paid.

58 His Honour considered that the move to Albury was an important step in the respondent’s recovery, but found that at that time, he remained significantly disabled. His Honour found:

“[71] … before his return to Sydney, he was, as a matter of probability, disabled such that he was unable to do what was manifestly in his interests, namely, take legal advice and ultimately legal action against those responsible.”

59 His Honour made the following finding in respect of the medical evidence:

“[72] I accept the evidence of Doctors Westmore and Gertler. I prefer the opinion of Dr Westmore to that of Dr Champion. I accept the submission by counsel for the [respondent] that Dr Champion's opinion does not address each limb of the definition of s11(3)(b). He does not, in terms, address the issue as to whether [the respondent] was substantially impeded in the management of his affairs, in relation to his cause of action by reason of impairment through mental condition.”

60 His Honour then found at [73] that the respondent was disabled in terms of s11(3)(b) until 1 January 2000. It followed from that finding, as his Honour stated, that the statement of claim issued on 2 January 2002 was within time.

The law

61 There was no dispute between the parties as to the law that applies to an application to extend time under s 52 of the Limitation Act, nor as to his Honour’s statement of it. Accordingly, it is sufficient to review it briefly.

Kotulski v Attard

62 In Kotulski v Attard [1981] 1 NSWLR 115, Slattery J said at 117-118:

‘One who is incapable’ (which conveys the concept of total inability) and the other ‘substantially impeded in the management of his affairs in relation to the cause of action ... by reason of disease or impairment or physical or mental condition.’

According to the Shorter Oxford Dictionary to ‘impede’ means to obstruct in progress or action; to hinder or to stand in the way of. ‘Substantially’, in my view, does not mean trivial or minimal, neither does it mean total: see R v Lloyd [1967] 1 QB 175. ‘Mental condition’ which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings.

Kirby v Leather

‘So here it seems to me in this statute a person is 'of unsound mind' when he is, by reason of mental illness, incapable of managing his affairs in relation to the accident as a reasonable man would do.’

63 In Kotulski, the plaintiff claimed damages under the Compensation to Relatives Act 1897 (NSW) by reason of the death of her husband and under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) for mental and nervous shock. The plaintiff’s husband had died on 6 June 1969 when he was struck by a motor vehicle. The plaintiff’s statement of claim was filed one month and 11 days after the expiration of the limitation period. She sought an extension of the limitation period, claiming that she was under a relevant disability for a continuous period of 28 days or more.

64 During the period from the date of the accident until she filed her statement of claim, the plaintiff had given instructions to her solicitor at the Coronial Inquest into her husband’s death, had brought a worker’s compensation claim, had attended to aspects of the deceased’s estate and had communicated with her solicitor in respect of an advice received from counsel in respect of the likely common law proceedings arising from her husband’s death. During this time, she also had psychiatric treatment and had been diagnosed as suffering from a depressive state with some hysterical features. Her psychiatrist gave evidence that for approximately ten months, the plaintiff was suffering from a depressive state, which was affecting her volition and judgment. The plaintiff’s solicitor gave evidence that during this period of time, on occasions when he dealt with her, she was upset and would cry and “did not appear to understand the nature of civil proceedings”.

65 Slattery J found that notwithstanding that the plaintiff was able to attend to the various matters to which I have referred, he was satisfied that, having regard to the evidence of her solicitor and psychiatrist, her depressive state “impaired her volition and judgment”. His Honour concluded, therefore, at 122:

“As I have previously mentioned, it is relevant to consider how a reasonable person would conduct herself in the management of her affairs, including a cause of action for compensation. The evidence has satisfied me that by reason of her mental state during this period she was substantially impaired in the management of her affairs and especially in relation to the cause of action sued upon.”

The State of New South Wales v Bennie

66 More recently, in The State of New South Wales v Bennie [2005] NSWCA 172, Campbell AJA (Giles and Bryson JJA agreeing) accepted the correctness of the principles stated by Slattery J in Kotulski.

67 In Bennie, there was a significant challenge as to whether the evidence established that the plaintiff was suffering from a relevant disability and to that extent the case was a decision on its own facts. Relevantly, however, for present purposes, was the rejection, at [101], of an argument advanced by the State that the fact that the plaintiff had been able to bring another case to a successful conclusion during the period of claimed disability was a “powerful, perhaps even determinative, argument against his being substantially impeded in the management of those proceedings” and thus, would not have been substantially impeded during the relevant period in respect of the proposed proceedings.

State of New South Wales v Higgins

68 In State of New South Wales v Julianne Higgins bht David Benedict O'Shea; Barnardos Australia v Julianne Higgins [2005] NSWCA 244, the evidence established that the plaintiff had lucid intervals during the period of claimed disability, when she “was able more or less to cope with the various pressures on her”. For example, she had been able to take action to regain the custody of her son, obtain victim’s compensation and take other legal action. The Court held at [19] that notwithstanding that evidence, the psychiatric evidence was such that there was no reason to doubt the correctness of the trial judge’s conclusion that she was substantially impeded within the meaning of s 11(3)(b) of the Limitation Act.

Challenge to trial judge’s decision

69 The State accepts that the medical evidence established that the respondent was suffering from a psychological condition. Senior counsel for the State contended, however, that the respondent had failed to establish that he was substantially impeded in the management of his affairs in relation to the cause of action. In the first place, it was submitted that on the respondent’s own evidence, the reason that he had not commenced proceedings was a financial one. The State relies upon the respondent’s answer in cross-examination, that when he was first advised by Mr Terracini that he could claim compensation, he was fit and well enough to do that. The State contends that his financial circumstances were the true, and as I understand the submission, the only, cause of his failure to commence proceedings.

70 The respondent’s answer to the question whether he was fit and well enough to commence proceedings was not a simple agreement with the question asked. Rather, he said, “I was at the time, yes”. However, within a very short period of time after that, the police harassment commenced. This is of particular significance, as a disability for the purposes of s 11(3)(b) may arise during the course of the running of the limitation period and does not need to exist at its commencement, provided that the respondent otherwise brought himself within the provisions of s 11(3)(b). The fact that he was not suffering from a disability at one or other times during the limitation period was not determinative of the question whether the limitation period had or had not been suspended. On the medical evidence accepted by the trial judge, the respondent was severely incapacitated by feelings of fear, anxiety, apprehension and probably depression in such a degree as to suspend the running of the limitation period, as found by the trial judge: see Dr Westmore’s evidence at [49] above.

71 The State next says that there was a gap in the proof in the respondent’s case that he was suffering from a disability. In particular, it was submitted that there was no evidence from any of his solicitors that they were unable to obtain instructions from him, there was no direct statement by the respondent himself that he could not instruct solicitors, nor was there any evidence from Mr Terracini that would indicate that the respondent was incapable of giving instructions to commence proceedings. Although it is correct that there was no such evidence, on the only occasion between the time of his acquittal and his return to Sydney that Mr Terracini saw the respondent, namely, during the course of the interview with the officers from the Wood Royal Commission, Mr Terracini said that:

“From information given to me [by the respondent] and his actions and presentation, I believe that he believed there was a real risk of serious harm and that he was very scared.”

72 This is powerful evidence corroborative of the respondent’s fears and mental state at that time from an experienced legal practitioner who had earlier acted for him and who thus had some knowledge of the respondent and was in a position to make such assessment. The evidence was not challenged.

73 It is not necessary for a party seeking an extension of the limitation period to give evidence in express terms of being substantially impeded in commencing an action during the time of claimed disability. That is the very matter which is the ultimate question for determination. Indeed, in another area of legal discourse, evidence by a party of the question to be determined, such as a statement by a plaintiff of reliance upon a misrepresentation, has been held to be of little assistance to the court and, under the Civil Liability Act 2002 (NSW), has been determined to be statutorily impermissible. Likewise, a statement by an applicant for an extension of the limitation period that he/she felt unable to give instructions to commence proceedings, would be of little assistance. The task for a trial judge on such an application is to determine, on the evidence, whether the respondent had satisfied the onus of establishing that he had a disability under s 11(3)(b).

74 The State next submitted that there was an incongruity in his Honour’s finding that the respondent’s disability ceased on 1 January 2000. It is apparent from his Honour’s reasons that the chosen date was somewhat arbitrary, reflecting the time at about which the respondent found himself capable of seeing a solicitor. However, there is no error in approaching an application to extend the limitation period in that way. Indeed, the legislation effectively requires it. In any event by the very nature of a mental condition, it is unlikely, if not improbable, that a person will totally and finally cease being substantially impaired on a specific date. The enquiry under the legislation is to determine whether a person is under a relevant disability and if so, for what duration. In my opinion, it is sufficient for a court to determine a duration of disability up to a certain point, notwithstanding that there may thereafter be some ongoing disability. Once that point is ascertained, s 52 provides that the limitation period is suspended during the period of the disability.

75 The State also submitted that his Honour’s conclusion must be erroneous because, according to Dr Westmore, whose evidence was accepted by his Honour, the respondent’s impairment had not passed. Rather, Dr Westmore’s evidence was that the respondent was still suffering “from a major depressive illness of moderate to severe intensity”, which required “urgent psychiatric intervention” and that he continued to be psychiatrically disturbed. Dr Gertler’s evidence of 2002 was to like effect, namely, that the respondent was chronically depressed and that his post traumatic stress disorder had stabilised. Senior counsel for the State submitted, somewhat rhetorically, that if the respondent was able to pursue his rights in 2000, but still suffered from the same condition in both February 2002 and March 2005, it would follow that his psychiatric condition did not have the necessary causative effect and was not the reason that he failed to pursue his alleged legal rights.

76 That question needs to be considered with the other challenges that the State makes to his Honour’s findings in respect of the medical evidence. These challenges are contained at [68] of the appellant’s written submissions. In essence, the appellant submitted that in quoting from Dr Westmore’s report in which the respondent is quoted as saying “I choose to forget most of [the events that had happened]”, his Honour apparently overlooked the fact that the respondent had not in fact forgotten and was able to give a full account to doctors and also gave a detailed interview to officers from the Wood Royal Commission, as early as 1995.

77 It appears that the State’s challenge to this aspect of his Honour’s reasoning was that Dr Westmore’s opinion was not based upon an appropriate history and accordingly should not have been accepted. However, Dr Westmore acknowledged, under the heading “Mental State Examination”, that the respondent “presented as being an alert and attentive historian”. That was his presentation at all his psychiatric examinations, although Dr Champion, in particular, noticed that the respondent’s recall of dates was not particularly acute. But in any event, I am of the opinion that the State’s focus on the respondent’s remarks takes the remarks out of context and places unwarranted emphasis upon them. In the first place, the respondent reported in very general terms on matters relating to his period of imprisonment and their effect on him. Secondly, it is not inconsistent for a person to say that the person “chooses to forget most” of a traumatic episode or series of events. Indeed it is a very natural coping mechanism. That does not mean that a person does not in fact have a recall of those events and can in fact recall them when required to do so.

78 Reference was next made to his Honour’s observation that Dr Westmore recorded that the respondent told him that he didn’t talk to customers, as he would abuse them. Senior counsel for the State referred to the respondent’s evidence, where he said that when he was in Albury, he was capable of handling the interplay between himself and customers. The thrust of this submission was that the history given to Dr Westmore was wrong, so that Dr Westmore’s opinion should not have been accepted.

79 However, the respondent’s evidence (at Tr 23-24) cannot be looked at in isolation. The respondent also gave the evidence which is set out at [29] above. In my opinion, when the evidence is considered in its totality, there is no fundamental inconsistency in the history given to Dr Westmore and his evidence before the Court. The evidence to which I have just referred, which was apparently accepted by the trial judge, revealed that the respondent was really only coping when in Albury and that he has a barely subsurface anger which was easily aroused even in the formal atmosphere of the court room. It would not be unexpected, therefore, that the respondent might “shout” at customers from time to time. I do not therefore consider that there was any fundamental inconsistency between what the respondent said to Dr Westmore and his evidence. Further, although the cross-examination was designed to undermine the respondent’s case that he was under a disability, including by seeking to establish that the history he gave to Dr Westmore was not accurate, he was not directly challenged on the history he gave Dr Westmore. No error on the part of his Honour has been demonstrated as alleged in this submission.

80 Complaint was next made that his Honour failed to refer to that part of Dr Westmore’s report in which Dr Westmore described the respondent as presenting as an alert and attentive historian, a matter to which I have already referred. Presumably, this submission was directed at establishing that contrary to Dr Westmore’s opinion and his Honour’s finding of relevant disability, the respondent was not substantially impeded in the management of his affairs in relation to the cause of action. If he was alert and a good historian, presumably he had the necessary mental capacity and ability to commence his cause of action. However, that alone is not the test. More importantly however, I am not satisfied that his Honour overlooked any relevant aspect of the evidence. At [57], Kirby J recorded Dr Westmore’s view that there was no clinical evidence of organic cognitive impairment affecting the respondent. If there was no cognitive impairment, it would not be surprising that he was an alert and attentive historian. In my opinion, no error has been shown in the failure to record this part of Dr Westmore’s report.

81 The next challenge made to his Honour’s reasons is in respect of [59], where his Honour set out that part of Dr Westmore’s report in which he expressed the opinion that the respondent fell within the definition of “disability” in s 11(3)(b) of the Limitation Act. It was submitted that that opinion was given without there being any reference in Dr Westmore’s report to the occasions in 1995, 1998 and 1999, when the respondent had been able to give detailed information to police as to what had occurred. As I understand this submission, it is that as the respondent was able to provide information to police on three separate occasions of matters, which, upon a proper analysis, were the basis of his cause of action, there could have been no impediment upon him giving the same information to solicitors.

82 It appears that the thrust of these submissions is that the facts as proved in the case were inconsistent with the facts reported to Dr Westmore, so it would thereby follow that Dr Westmore’s opinion that the respondent had a disability within s 11(3)(b) was undermined. However, the State did not require Dr Westmore for cross-examination. Whilst it might be open to a party to rely upon absences in an expert report to demonstrate that its cogency was thereby undermined, that approach carries with it its own tactical downsides.

83 The first is that the evidence of the witness thereby goes unchallenged. A court need not accept evidence which is not challenged, but may do so. A party who has failed to challenge evidence, particularly expert evidence, is thereby at a serious disadvantage on appeal in seeking to demonstrate that the evidence should not have been accepted. In my opinion, it cannot be assumed that simply because Dr Westmore did not refer to the occasions when the respondent was interviewed by police, and may not have known of them, that his opinion is thereby undermined. The circumstances of providing information to the police, upon which the State relies, were very different from those which are relevant to the question as to whether a party was substantially impeded in the management of their affairs in relation to the cause of action, under s 11(3)(b).

84 Except for two occasions that the respondent spoke to the police, he was approached by the police. On one of these two occasions, the respondent went to the police on behalf of the person who owned the farm, to pay outstanding warrants. Whilst he was co-operative in giving information, he did not initiate the contact, or, in the case of paying the warrants, was not involved in any ongoing legal process. As to the other occasion when the respondent contacted the police, he made a single telephone enquiry. The commencement of a cause of action involves significant initiative and ongoing attention. His Honour was aware of each of the occasions on which the respondent had contacted the police. He was required to assess that evidence, along with all the other evidence, including the evidence of the medical practitioners. In my opinion, it has not been established that his Honour overlooked this evidence.

85 Further, there was no challenge to Dr Westmore’s diagnosis, namely, of a Major Depression. The Diagnostic and Statistical Manual of Mental Disorders (4th ed) (DSM-IV) indicates that one of the features of a Major Depression may be an inability to make major decisions (p 350). But, in any event, Dr Westmore was of the opinion that during the relevant period, the respondent was “severely incapacitated by feelings of fear, anxiety, apprehension and probably depression”. The respondent gave direct evidence of the extent of his fear and the level of fear reported by the respondent whilst being interviewed by the officers from the Wood Royal Commission, was corroborated by Mr Terracini. In my opinion, there is no substance in the State’s challenge to his Honour’s judgment on this point.

86 It was open to his Honour to accept the evidence of Drs Westmore and Gertler and no error has been shown in his failing to set out those parts of their reports, the absence of which has been the subject of complaint. Nor has the State successfully undermined the opinions expressed in those reports in a way that involved error in the trial judge’s acceptance of them.

87 The next challenge was made to [61] of the judgment, where his Honour quotes from Dr Gertler’s report. That passage is already set out at [50] above. Senior counsel for the State submitted that his Honour failed to refer to that part of Dr Gertler’s report which again described the respondent as an alert, co-operative man. I have already dealt with a similar complaint in relation to Dr Westmore’s report. There was no suggestion in the respondent’s case that he had been cognitively impaired as a result of his mental condition. There was, therefore, no particular reason to refer to it.

88 It was submitted that his Honour at [64]-[65], appeared to accept the submission made on behalf of the respondent that Dr Champion, in the passage set out at [55] above, had stated a far higher test for “disability” than was provided for under the Limitation Act. The State submitted that Dr Champion’s statement did not suffer from the “vice of an attempt to fit legal definition” but, rather, it looked at the impact that the events had had upon the respondent and that Dr Champion had expressed the view that his adjustment disorder would not have prevented him from “reasoning normally about the matters relevant to his potential cause of action and, inter alia, giving instructions about any cause of action”.

89 In my opinion, Dr Champion did not state the test in accordance with the provisions of the section and, in particular, did not consider whether or not the respondent was substantially impaired in the management of his affairs in relation to the cause of action. But, even if Dr Champion’s opinion is properly to be understood as meaning that he did not satisfy the test prescribed by s 11(3)(b), that is not the end of the matter. Dr Champion’s opinion was different from the opinion expressed by Dr Westmore. However, the trial judge was entitled to accept the evidence of Dr Westmore, unless the State was otherwise able to demonstrate that Dr Westmore’s opinion was not well based. For the reasons I have already given, I do not consider that the State has done so.

90 Finally, it was submitted that his Honour adopted the wrong approach in determining whether the respondent had established that he had a disability. It was submitted that his Honour should have undertaken an analysis of what would be necessary to run a case. It was submitted that his Honour should have analysed the matter on the basis of determining whether the respondent: (1) appreciated that something had occurred which might give rise to a claim; (2) could make a decision to instruct a lawyer; (3) could recite the facts or point to where the facts could be ascertained; (4) could understand advice and provide instructions; and (5) see an expert doctor to provide evidence. It was submitted that the evidence demonstrated that if each of these questions had been asked in respect of the respondent, an affirmative answer would have been given to each question. This submission was partnered with a submission that his Honour’s reasoning at [69] was wrong as a matter of principle and his factual findings at [70] were erroneous: [69] and [70] of his Honour’s judgment are set out at [57] above.

91 The difficulty with the State’s submission is that it effectively constructs a template against which the respondent’s claim is to be adjudged and which appears to require serial satisfaction. A ‘test’ constructed in that way is seriously misleading. If each question is asked in isolation, the answer to each may well be in the affirmative, as the State submitted. For example, if the first question was posed in this case: “did the respondent appreciate that something had occurred which might give rise to a claim” the answer, probably, would be “yes”. Likewise, if the second question was posed, “could the respondent make a decision to instruct a lawyer”, the answer may be “yes”, although I would have to say that would be more problematic than the first. However, an answer to the third question, on the evidence in this case, would almost undoubtedly be “yes”, and so on.

92 On this approach, the State would contend that when the ‘template’ was complete, it would be full of affirmative answers, or mostly affirmative answers and that would provide the answer to the question that the court had to determine. However, seeking the answers to a series of questions in this way fails to grapple with the statutory requirements of s 11(3)(b). As Slattery J pointed out in Kotulski at 118, the enquiry under the section is directed to determining whether the person claiming to be under the relevant disability is able to “reason normally about the matters relevant to a potential cause of action, to understand and consider advice, and to give instructions about any action” (emphasis added).

93 In my opinion, the State’s serialisation of questions provides a false simplicity to the determination of the question of whether the person is “substantially impeded in the management of his or her affairs in relation to the cause of action” within the meaning of s 11(3)(b) and omits the fundamental aspect of being able to “reason normally” about the various aspects that are involved in bringing a claim.

94 The State’s approach also fails to deal with another of the other fundamental aspects of bringing a claim, namely that it requires the exercise of willpower to initiate the claim: see Kotulski at 118. In this regard, I consider that it is important to understand that it is not only a question of having the willpower to engage in the task of commencing proceedings. Such an approach takes a far too simplistic view of what is involved in the commencement of an action. In making a decision to commence an action, the person is also making a decision to continue with the claim.

95 Even if a person is able to fulfil each of the requirements contained in the State’s approach, including the making of a decision to instruct a lawyer and to provide instructions, the person may not have the willpower to engage in all that is required to commence an action because of that person’s mental condition.

96 That then brings me back to [69] of his Honour’s judgment. In my opinion no error of principle has been shown in his Honour’s approach. The matters raised by his Honour in that paragraph reflect, in the particular circumstances of the respondent, what Slattery J considered in Kotulski was needed to be assessed, that is, “how a reasonable person without any impairment would conduct himself in the management of his affairs”. In the particular circumstances of the respondent, Kirby J considered that a rational person would resume his relationship with his children and seek redress for the ordeal he had undergone. The second of these matters is self-evident. In the respondent’s case so was the first. His actions in relation to his family were relevant to an overall assessment of the question whether the respondent was suffering from a disability.

97 It was next submitted that his Honour made an error of fact in [70] when his Honour found that the respondent had not resumed his relationship with his children and had left his sons. This was said to be factually wrong, because the respondent had returned to his family. This submission fails to deal with the whole of his Honour’s postulation of what a rational person would do. His Honour’s assessment of what a person who was not relevantly disabled would do was to resume “and maintain” a relationship with his or her children. The evidence established that he had not been able to do so because of his deep fear that his children and the children of his relatives, would be harmed. That part of the State’s submission should be rejected.

98 It was also submitted that the respondent leaving Sydney without explanation was not a matter which went to his mental state, but rather, was an action taken by the respondent to protect his children. I have already dealt with this in various ways above. The respondent gave compelling evidence at the trial of the effect his fear for his children had on his mental state.

99 In my opinion, no error has been shown in the trial judge’s reasoning. Accordingly, I propose the following Orders:

1. Leave to appeal granted;

100 TOBIAS JA: I have had the benefit of reading in draft the judgments of Beazley JA and Basten JA in this matter. Each of their Honours has come to a different conclusion with respect to the disposition of the appeal. However, I would agree with the orders proposed by Beazley JA for the reasons that she has given.

101 Basten JA concludes his reasons (at [145]) by stating that the suspension of the limitation period pursuant to s 52 relevantly involves three elements of which the first and second were satisfied, but not the third. At [146] his Honour concluded that the impediment to the respondent commencing proceedings was not his depressive condition but his fear of the possible actions of the corrupt police officers. Accordingly, the relevant impediment was not causally linked to an impairment of his mental condition.

102 The source of those conclusions is to be found in [123] of his reasons where his Honour observes that it was at least plausible that the respondent’s fears with respect to the danger to himself and his family from the corrupt police officers would have dissuaded him from bringing civil proceedings against those responsible for his arrest, detention and prosecution, whether directly or indirectly, by suing the State. His Honour was also critical (at [125]) of the fact that no consideration was given by the primary judge to the very real possibility that the respondent’s failure to take action was an essential element in his search for sanctuary.

103 The difficulty I have with his Honour’s process of reasoning is two-fold. First, the appellant made no submission to the effect that the real reason for the respondent’s failure to institute proceedings was due to his fear of retribution by those police officers in respect of whom he alleged were responsible for his arrest, detention and prosecution. Second (and this may well explain the reason why the submission was not made) no suggestion was made to the respondent in cross-examination that his fear of retribution was the reason for his not instituting such proceedings.

104 Although the respondent agreed under cross-examination that on the few occasions that he had spoken to the police whilst in the country, he had mentioned more than once that he had a claim against the Police Service or the State which he intended to pursue (T.28-29), the closest the cross-examination came to seeking an explanation as to his failure to institute proceedings was in the following exchange (T.30):

“Q. And it was your intention then and before then, and after then to commence proceedings?

A. Hmm, yes.

Q. We know you didn’t do so a fortnight after you got out of prison because you couldn’t afford it, correct?

A. Correct.

Q. At this time, why is it you didn’t instruct solicitors to commence proceedings – hadn’t got round to it?

A. I really don’t know why, I don’t, no, I can’t answer that honestly to you, no.”

105 As Beazley JA points out at [82] of her judgment, Dr Westmore was not required for cross-examination; nor, for that matter, was Dr Gertler. Accordingly, it was not suggested to either of them and, in particular, Dr Westmore that the true reason for respondent’s impeded capacity to consider and/or to proceed to institute proceedings against the police was due to his fear of retribution rather than from any impairment of his mental condition. Given the passage from Dr Westmore’s report set out in [49] of Beazley JA’s reasons and in [134] of those of Basten JA which was unchallenged, in my respectful opinion it was not open to the appellant to assert that it was the respondent’s fear of retribution which dissuaded him from bringing civil proceedings against those responsible for his arrest, detention and prosecution rather than his impaired mental condition. Of course, as I have indicated, the appellant quite properly made no such submission.

106 Accordingly, I do not consider that it is open to this Court to determine the issue on the appeal upon the basis of a proposition which was neither advanced on the appeal nor, I presume, before the primary judge and in respect of which there was no proper evidentiary basis.

107 Finally, whilst on the subject of Dr Westmore’s opinion as recorded in [49] and [134] respectively of their Honours’ reasons, I am bound to express my disagreement with Basten JA’s statement in [136] of his judgment that Dr Westmore was only expressing “emotional responses” as being likely to have substantially impeded the respondent in the relevant respect and not a clinical condition. In my respectful opinion Dr Westmore was clearly stating that the “emotions” to which he was referring resulted in the respondent being “psychiatrically disturbed” in that he was suffering from the clinical condition known as depression. It was that condition which manifested itself in the emotional feelings to which he referred and which resulted, according to Dr Westmore, in the respondent being “severely incapacitated”.

108 In my opinion, Beazley JA’s reasons for rejecting the appellant’s various challenges to the primary judge’s decision (with which I agree) are therefore to be preferred to the approach adopted by Basten JA.

109 BASTEN JA: On 20 May 1991 Roy Lawrence Thurgar was murdered in his car, being shot at close range. On 24 July 1991, Dallas John Harlum (the plaintiff) was arrested for Mr Thurgar’s murder. He was held in custody until acquitted by a jury on 10 November 1992. On 2 January 2002 he commenced proceedings in the Common Law Division against the State for damages. His statement of claim alleged causes of action for false arrest, false imprisonment and malicious prosecution. It appears that the State filed a notice of motion seeking to strike out the statement of claim, presumably because it had not been filed within the limitation period prescribed by the Limitation Act 1969 (NSW). That notice of motion was not before this Court. Rather, the decision of Kirby J in the Common Law Division, which became the subject of this application for leave to appeal, sought to address paragraph 4 in a notice of motion filed by Mr Harlum on 27 April 2004, seeking a finding that the limitation period “has not expired” because it was suspended, pursuant to s 52 of the Limitation Act, because the plaintiff “was and/or is suffering from a disability”.

110 The request for such a finding led to a trial on what was, in effect, a separate question. Perhaps unfortunately, the question seems not to have been formulated prior to his Honour giving judgment on 18 May 2006, but was formulated, by agreement between the parties, for the purposes of orders being entered on 6 September 2006. Those orders identified and answered two questions in the following terms:

Limitation Act

2. Answers [sic] the two questions [that] are subject of order 1 as follows:

(1) ‘Yes, until 1 January 2000’.

(2) ‘Yes, until 1 January 2000’.”

111 The application for leave to appeal was brought by the State in order to challenge the answers given. For the reasons set out below, in my view leave should be granted and the findings of the trial judge set aside.

Defining the issues

112 As counsel for the State correctly stated, the only issue before the trial judge was whether the relevant limitation period had in fact expired prior to the commencement of the proceedings. Applications in the plaintiff’s notice of motion, for extensions of time under ss 58(2) and 60G(2) of the Limitation Act, were not addressed. Thus, no question arose as to the exercise of a discretionary power to extend time. Further, it should be added, a claim that the limitation period had not expired because the cause of action had been “concealed and/or fraudulently concealed”, for the purposes of s 55, was also not addressed. If the State is successful in this appeal, there may yet be further issues to be litigated in relation to the operation of the Limitation Act, which would be unfortunate, but would arise from the course which the parties appear to have jointly adopted.

113 In order to determine the issues thus identified, it is necessary to refer to the relevant terms of s 52 of the Limitation Act, which, in part, reads as follows:

52 Disability

(1) Subject to subsections (2) and (3) and subject to section 53, where:

(a) a person has a cause of action,

(b) the limitation period fixed by this Act for the cause of action has commenced to run, and

(c) the person is under a disability,

in that case:

(d) the running of the limitation period is suspended for the duration of the disability, and

(e) if, but for this paragraph, the limitation period would expire before the lapse of three years after:

(i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability …

… the limitation period is extended so as to expire three years after the earlier of those dates.”

114 Neither of sub-ss 52(2) or (3), or s 53 is directly relevant.

115 The plaintiff relied upon three causes of action, which arguably accrued on different dates. The latest date was the date upon which he was released from detention, at the end of the unsuccessful prosecution for murder. There was also some discussion in the judgment as to whether the various causes of action were subject to a three year limitation period because founded on “negligence, nuisance or breach of duty, for damages for personal injury”, under s 18A of the Limitation Act or, in the alternative, a six year period because they were “founded on tort, including a cause of action for damages for breach of statutory duty” within s 14(1)(b) of the Act.

116 If, as is possible, the plaintiff’s claim falls both within s 14 and within s 18A, then the shorter limitation period of three years, provided by s 18A(2) will have effect: see s 13. Because his Honour concluded that the period of disability extended for more than six years from the accrual of the causes of action, the additional three year period from the cessation of the disability would operate in any event. On the other hand it may be noted that the language of s 18A is reflected in s 58, which was invoked in the plaintiff’s notice of motion, as a basis for obtaining an extension of time. As Kirby J noted in a subsequent case of false imprisonment, Azshion v North Coast Area Health Service [2006] NSWSC 769, the High Court held in Stingel v Clark (2006) 80 ALJR 1339 that the cause of action for a deliberate tort could constitute a “breach of duty”, thus engaging ss 18A and 58. That conclusion differed from the approach adopted in the UK in Stubbings v Webb [1993] AC 498. Although Stingel was concerned with the Limitation of Actions Act 1958 (Vic), and some significance was given to the differences in statutory history in that State and in the UK, it would appear that Stingel would have a similar operation in this State as in Victoria and that the contrary approach of the House of Lords would not be applied. As Kirby J noted in Azshion, the phrase “breach of duty” is defined in the Limitation Act to include trespass to the person: s 11(1). It follows that, if the appeal be upheld, the matter must be remitted to the trial judge for consideration of any possible argument with respect to extension of time.

117 The applicable limitation period may have required resolution at trial if his Honour had found that the disability was not continuous, or ceased before 2 January 1999. However, the answers to the questions should be understood as upholding the existence of the claimed disability at least from the date of his release on 10 November 1992 until the date specified in the answer, namely 1 January 2000.

118 The formulation of question 1 was no doubt intended to reflect the statutory language of s 11(3) of the Limitation Act, which provided:

“(3) For the purposes of this Act a person is under a disability:

(a) while the person is under the age of 18 years, or

(b) while the person is, for a continuous period of 28 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,

Mental Health Act

(iii) war or war-like operations, or

(iv) circumstances arising out of war or war-like operations.”

119 The plaintiff ran his case on the basis that he fell within (b)(i). He did not claim that he suffered from any “disease” nor that he had any physical impairment. Accordingly, the relevant words in sub-par (i) were “any impairment of his … mental condition”. The reference to “an impaired mental condition” in question 1(1) should be understood as a reference to this condition in sub-par (i).

120 The second question invokes the language of s 52(1)(d), which refers to the limitation period being suspended “for the duration of the disability”. So formulated, significant questions arising under s 11(3)(b), and particularly the chapeau, are either ignored or at least submerged within the second question. The case was conducted on the basis that it was sufficient for the plaintiff to establish that he was “substantially impeded” in a relevant respect: he did not seek, and did not need, to establish that he was “incapable”. However the critical issue, which in my view was not adequately addressed below, was the relationship between any impairment of his mental condition and the “management of his … affairs in relation to the cause of action”. The relevant causal connection is that the substantial impediment must arise “by reason of” the impairment of his mental condition. The evidence of this connection might have been expected to come, perhaps primarily, from the plaintiff himself. Although it was the view of at least two doctors that he suffered from a depressive illness, as Dr Westmore noted, “at a clinical level there is no evidence of organic cognitive impairment”. The plaintiff suggested in his evidence that he did not realise how seriously he had been affected by his experiences, until reading Dr Westmore’s report, but at no stage did he explain his failure to commence proceedings at an earlier time in language which would suggest a substantial impairment of his ability to manage his affairs in relation to his potential claim. Indeed, as has been noted by Beazley JA, he gave at least one significant inconsistent reason. Thus, when Mr Terracini SC, who had appeared for him in his criminal trial, suggested that he might have a claim against the State, but that it was not a matter which would be assisted by Legal Aid, he said that he had no funds to pursue the matter privately.

121 Secondly, and significantly, it is clear that he left Sydney and, in a sense, “went into hiding” at Urana in southern New South Wales, because he was scared. He had received telephone threats, apparently in relation to both his own safety and that of his young sons, which caused him to leave Sydney, without telling his family where he was going. He managed a property at Urana for some four years. He gave evidence, although for the first time in cross-examination, of threats received shortly after he arrived at Urana.

122 There is no doubt that, after his arrest, prosecution and acquittal, he was, as he said, bitter and angry. He was also conscious of the dangers, potentially lethal, for those who crossed corrupt police officers operating in cahoots with members of the criminal underworld. At least until his co-operation with the Royal Commission into the New South Wales Police Service, which was coincidentally chaired by his trial judge, Wood CJ at CL, he would not have gone to the police for protection. Indeed, whilst at Urana he was charged, and pleaded guilty, to possession of firearms without a licence, one of which was a sawn-off shotgun.

123 No doubt his fears may have contributed to his depressive illness. However, it is at least plausible that those fears would also have dissuaded him from bringing civil proceedings against those responsible for his arrest, detention and prosecution, whether directly or indirectly, by suing the State. However, if the fear which led him not to commence proceedings also contributed to the impairment of his mental condition, it is nevertheless a potentially false step to conclude that the failure to bring proceedings was caused by his mental impairment. The question to be addressed on the evidence was whether the fear had two separate consequences (depressive illness and an impediment to bringing proceedings) or whether, like links in a chain, the fear led to the depressive illness which constituted the impediment to bringing proceedings.

124 The distinction is important: in the first case the failure to bring proceedings is a reaction to the fear, whereas in the second case, while one may say that the fear is contributing factor, it is also appropriate to conclude that the inaction is “by reason of the depressive illness”. The following passage in the reasoning of the primary judge demonstrates, in my view, that these separate causative links were not kept clearly in mind. Thus at [69] his Honour stated:

“69 It is instructive to ask: how would you expect a rational person, who was not disabled, to behave once their ordeal came to an end? First, you would expect them to immediately resume their relationships with their children …. Secondly, you would expect them to seek justice ….

70 Mr Harlum did neither of these things. He left his sons within a short time and without explanation. He did not seek justice. Instead, after a period of six months, moving from one place to another, he took sanctuary at a deer farm in the country, seeking anonymity. There can be no doubt that he was in fear, as the arsenal of weapons found on 22 November 1996 demonstrated. … I accept that, certainly until he left the deer farm in early 1998, Mr Harlum was disabled, as defined by the Act. The impairment arose from his mental condition, and substantially impeded him in the management of his affairs in relation to his causes of action. I believe, as a matter of probability, that he could not, at that stage, make a rational judgment or exercise the will to seek advice to address the great wrong that had been done to him.”

125 There is, with respect, an elision in this reasoning from fear to inability to make a rational judgment. Further, there is an elision from fear to impairment of his mental condition, to inability to make a rational judgment. No consideration was given to the very real possibility that his failure to take action was an essential element in his search for sanctuary. Given his past history, no one could say that that was irrational. Indeed, the fact that a sense of injustice still rankled, because he felt unable to pursue action against his tormentors, may well have contributed to his depressive illness, as much as the reverse. Whilst one may have great sympathy for the plaintiff’s predicament, it does not follow that s 52 of the Limitation Act operates to suspend the limitation period in such circumstances. One would have equal sympathy for someone in the position of the plaintiff who suffered no physical or mental impairment, but nevertheless concluded that the only rational way to keep out of danger was to leave Sydney and not bring legal proceedings.

126 There are further difficulties in the reasoning of the primary judge. In dealing with the medical evidence, he expressly stated that he accepted the evidence of Drs Westmore and Gertler: at [72]. He preferred their evidence to that of Dr Champion.

127 Dr Champion had expressed the view that, although the plaintiff “may have suffered with some disability from a mild to moderate adjustment disorder” he nevertheless did not believe that this would have constituted a disorder “which would cause Mr Harlum to be unable to reason normally about the matters relevant to the potential cause of action, to understand and consider advice or to give instruction about any action”. His Honour rejected that evidence because he said it “set the bar too high”: at [65]. In so doing he appears to have equated inability to reason normally about matters relevant to his cause of action, with being incapable of managing his affairs in that regard, whereas it was sufficient if he had been substantially impeded in managing his affairs in that regard. With respect, to say that a person is able to reason normally about affairs is hardly consistent with him being “substantially impeded” in the management of those affairs. It is a matter for the Court to apply the relevant legal test to the opinion expressed by a practitioner: there is danger in too readily accepting an opinion expressed by a medical practitioner because it adopts the language of the legal test, and rejecting one which does not.

128 So far as Dr Gertler’s report was concerned, the passage relied upon primarily by the trial judge was one in which Dr Gertler expressed the psychiatric opinion in the following terms:

“Mr Harlum has in my opinion, developed symptoms of a chronic post-traumatic stress disorder. These include sleep disturbance with nightmares related to his imprisonment, hyper vigilance and a fear of being in crowds, constant rumination about the arrest and his imprisonment, anhedonia and emotional and social withdrawal. He is also chronically depressed with significant weight loss.”

129 This opinion was expressed in response to a request from the plaintiff’s solicitors, dated 14 January 2002, to express his views in relation to “nature and condition found on examination”. This he did, in his report of 21 February 2002, based on an examination conducted the previous day. Two comments may be made about this opinion. First, it does not purport, in any sense, to address the question posed by s 11(3)(b) of the Limitation Act, for the excellent reason that Dr Gertler was not asked to address that issue. Secondly, it is clear that Dr Gertler is expressing a psychiatric opinion about the state of the plaintiff when he was examined on 20 February 2002. Although he recounted the history giving rise to his psychiatric condition, he did not suggest that it had varied significantly over the past few years. Yet, as already noted, the trial judge expressly found that the disability continued only until 1 January 2000.

130 There was some suggestion in the course of argument on the appeal that the finding was not expressly limited to that date, in the sense that the trial judge did not intend to rule out the possibility that the disability was continuing. However, that contention cannot be accepted. If the disability did continue, it would be necessary to explain the circumstances whereby the plaintiff was able to commence proceedings on 2 January 2002, despite the substantial impediment which had existed continuously for nine years.

131 Potentially more persuasive evidence for the plaintiff was to be found in the two reports of Dr Westmore, forensic psychiatrist. Dr Westmore first examined the plaintiff the day before Dr Gertler. One may infer that he was asked similar questions to those put to Dr Gertler, which were primarily directed to an assessment of damages for personal injury. He stated:

major depressive illness

severe adjustment disorder with depression

dysthymic disorder

132 Specifically in relation to the limitation period issues, Dr Westmore was asked to examine the plaintiff again, which he did on 1 March 2005. Of the further history that he obtained from the plaintiff, only the following paragraph is of direct relevance:

“I then asked Mr Harlum what prompted him to get legal advice which led to his current legal action and he said the barrister who originally represented him raised this possibility with him although Mr Harlum said he subsequently left Sydney before action could be commenced, he left because of the ‘the threats’ [sic]. His next contact with the barrister occurred when the barrister contacted Mr Harlum about the Royal Commission. That occurred possibly in the late 1990’s.

I asked him was it around that time that he started legal proceedings himself and he said, ‘I did it when I came back to Sydney, I missed me kids.’ He confirmed it was then that he saw a solicitor.”

133 The meeting with Mr Terracini, in relation to the Royal Commission occurred in 1995, not “the late 1990’s”. Further, as will be seen below, he gave in evidence a reason for not pursuing proceedings when released from prison, which he apparently did not give to Dr Westmore, or which Dr Westmore did not record, if given. Otherwise, as Dr Westmore stated in a paragraph quoted by the trial judge:

“He reports that after he was released from custody he received numerous threatening phone calls. He reports he became fearful for himself but more particularly for the life and well-being of his immediate family and extended family. He left Sydney because of these fears and essentially he went into hiding.”

134 As well as confirming that the plaintiff continued to be “psychiatrically disturbed” Dr Westmore concluded:

“On the balance of probability during this period Mr Harlum was severely incapacitated by feelings of fear, anxiety, apprehension and probably depression. These emotions are likely to have substantially impeded his capacity to consider and/or proceed with actions against the police or other authorities whom he believes may have harmed him during his initial arrest.”

135 Whilst it may be true that a person can be “substantially impeded” and yet commence proceedings, the fact that he does do so whilst suffering from an impairment of his mental condition, calls for careful inquiry as to how substantial the impediment was, and as to whether it was something other than his mental condition which led him to allow many years to pass without suing. In addition, the inquiry should properly address whether the person was able to manage his or her other affairs and, if so, why it might be concluded that there was substantial impediment in relation to the cause of action.

136 These inquiries were not ones upon which Dr Westmore entered. Indeed, they were more properly within the sphere of the trial judge. Further, it is significant that Dr Westmore concluded that the plaintiff was incapacitated by “feelings of fear, anxiety, apprehension and probably depression”, noting that it was “these emotions” which were likely to have substantially impeded him in the relevant respect. However, emotional responses do not suspend a limitation period; they may lead to a clinical condition, but it is only if that clinical condition causes a substantial impediment of the kind described that the limitation period is suspended.

137 In the passage set out at [116] above, the trial judge noted that the plaintiff had not acted as a rational person would, after his “ordeal” had come to an end, by resuming relationships with his children. However, there was no hint that that behaviour was irrational or that it was caused by a mental illness. It was undertaken in response to the threats which the plaintiff had received. If it demonstrated any impediment in managing his affairs in relation to his family, it was clearly not an impediment caused by mental illness, but, on his own evidence, by concern for their welfare, as much as or more than his own.

138 In Kotulski v Attard [1981] 1 NSWLR 115, Slattery J, at 117F-118B helpfully sets out some of the concepts adopted in s 11(3)(b). His Honour continued:

“I am of opinion that it is a relevant matter, in the consideration of the question raised by the notice of motion, to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action.”

139 That passage was adopted by this Court in Olive v Johnstone [2006] NSWCA 21 at [61]. In some cases, that question may be of considerable assistance, particularly where, as in Olive, there was a lack of relevant medical evidence. However, it is important not to replace the statutory test with that which Slattery J identified as “a relevant consideration”. For example, a person can act irrationally without having a disease or impairment of the mind, especially if acting irrationally extends to the results of confused thinking, conflicting emotions and other forms of behaviour in which an outsider’s view of rational behaviour does not prevail. In particular, people often do not pursue legal claims and their reasons may be manifold, including doubt as to the likelihood of success, fear of lawyers’ fees, fear that the benefit will not be worth the cost, including the emotional cost, of being involved in litigation, not wishing to sue a person one knows and many other similar reasons. Simply to ask, ‘Did the plaintiff behave rationally in the circumstances?’ may often obscure the inquiry prescribed by statute, rather than provide a clear answer.

140 It was no part of the plaintiff’s case that he was not aware of his potential claim in relation to his false arrest, imprisonment and malicious prosecution. His evidence at trial included Mr Terracini’s statement to him shortly after his release, and the reply recorded by Mr Terracini in the following terms:

“You may bring proceedings against the police for damages as a result of your wrongful arrest and imprisonment. Legal Aid doesn’t do this type of work so you should go and see a private solicitor.

John Harlum said words to the effect: -

“I have just been in gaol. I have no money. If Legal Aid won’t do it how do I do it?”

141 The plaintiff, in his evidence, agreed that had he had financial resources, he could and would have pursued proceedings and that he was fit and well enough to do so at that time: Tcpt, 11 May 2006, pp 13-14.

142 He said that he left Sydney because of the threats to the safety of his sons. He said, for the first time in cross-examination, that he received “a couple of phone calls at the farm” which was “very shortly” after he left Sydney: Tcpt, p 19. That would place the calls at some time in 1993. At that stage he was responsible for running the farm which he agreed he was “perfectly capable of doing”: Tcpt, p 20. However, he also said that the calls warned him against going to the Royal Commission. The Royal Commission was established in 1994, and hence it may well be that the calls were received in that year. In October 1995, he gave a recorded interview to an officer attached to the Royal Commission and in May 1997, the Royal Commission delivered its report. In early 1998, he moved to Albury and worked as a salesman for a wholesale car seller. He agreed that he was then fit and capable of undertaking that work: Tcpt, pp 23-24. He worked on commission and left the job to come back to Sydney, not for financial reasons, but to re-establish contact with his sons and brother, in December 1999.

143 In one sense, the strength of the plaintiff’s case was that his failure to sue at an earlier point in time was caused by his fear of the very persons whose conduct gave rise to the cause of action. It seems wrong that their continuing conduct should deprive him of that cause of action which he now wishes to pursue, albeit against the State. It was a case, his counsel contended, which fell within the category identified by Deane J in Hawkins v Clayton (1988) 164 CLR 539 at 590:

“If a wrongful action or breach of duty by one person not only causes unlawful injury to another but, while its effect remains, effectively precludes that other from bringing proceedings to recover the damage to which he is entitled, that other person is doubly injured. There can be no acceptable or even sensible justification of a law which provides that to sustain the second injury will preclude recovery of damages for the first. It would, eg, be a travesty of justice and commonsense if the law provided that a cause of action lay for damages for false imprisonment but then went on to provide that that cause of action would be lost if the false imprisonment continued for six years after the cause of action first accrued.”

144 In Walsmley v Cosentino [2001] NSWCA 403 at [48] (Powell JA, Priestley and Beazley JJA agreeing), this Court doubted whether such a result could be achieved by way of construction of the operative provision and noted that no other member of the majority in Hawkins had espoused that conclusion. However, that question need not be pursued further for three reasons. First, and primarily, it does not arise under the separate questions identified by the trial judge. Secondly, if it did arise it would be necessary for a finding of fact to be made as to who was responsible for the threatening phone calls. Thirdly, and assuming that it could be established that they were the police officers who had been responsible for the actions giving rise to the present proceedings, it might be necessary to establish that the State was responsible for those acts. That is not inherently plausible. In the case of an independent tortious act by a third party, the better solution to the apparent injustice may be to consider a claim in respect of the intimidation, part of the damages flowing from which would be the loss of the action against the State, in relation to its responsibility for the original tortious conduct. An alternative approach might be to seek to rely upon equitable principles of estoppel, although that was not the approach preferred by Deane J in Hawkins and again would seem to give rise to serious problems in relation to a plea against the State: see State of New South Wales v Mulcahy [2006] NSWCA 303 at [12]-[17] (Bryson JA, Hodgson and Tobias JJA agreeing).

Conclusions

145 The suspension of the limitation period, pursuant to s 52, in this case relevantly involves three elements:

(a) the existence of a substantial impediment to the commencement of proceedings;

(b) the existence if a psychiatric condition, being an impairment of the person’s mental condition, and

146 His Honour’s findings encompassed (a) and (b) but not, in my view, (c). A fair reading of the evidence demonstrates not that the impediment to commencing proceedings was his depressive condition, but, at best for the plaintiff, that it arose by reason of his fear of the possible actions of the corrupt police officers, as did his mental condition. In that respect, the statutory test was not satisfied. Further, the evidence with respect to his failure to sue the State or the police when he was released from prison was that legal aid was not available and that he had no funds for such an action, but believed that some financial resources would be required. That also is inconsistent with the statutory test.

147 Although he may have suffered from a depressive condition throughout the period from 1993 and 1999, the evidence given by the plaintiff himself did not establish that it was the depressive condition which impeded his acting in relation to a claim against the State. It is apparent that, at least from 1995, he was able to take steps to bring to the attention of the authorities, at least through the Royal Commission, the circumstances which gave rise to his potential cause of action. Alternatively, if for some period the depressive condition did substantially impede his ability to bring proceedings, it did not do so after mid-1997, with the result that he commenced proceedings well outside the period of three years after the substantial impediment caused by his depressive condition ceased.

148 This appeal is by way of a rehearing under s 75A of the Supreme Court Act 1970 (NSW). Findings in relation to questions of fact are governed by well-established principles and require that due deference be given to the benefits enjoyed by the trial judge in relation to the consideration especially of oral testimony. However, the present case turns upon the assessment of the medical evidence, which was tendered by way of reports, and the oral evidence of the plaintiff. No doubt was cast on the plaintiff’s testimony as to his state of mind or his capabilities at various times. His Honour accepted him as a person of truth. Accordingly, his evidence may be accepted with confidence. Neither alone, nor in combination with the medical evidence, does it establish the facts required to produce a suspension of the relevant limitation period beyond 1 February 1999.

149 The issues raised by this case in respect of the operation of the Limitation Act, ss 11(3)(b)(i) and 52(1) are matters of general importance in relation to the administration of the law. Exceptions to the periods prescribed by the Limitation Act have come about in a somewhat ad hoc manner over the years, with provisions being added for suspension or extensions in circumstances which tend to be narrowly drawn and which do not necessarily operate coherently so as to achieve justice in all cases. A classic illustration may be found in the English case of Harnett v Fisher [1927] AC 573, in which a person detained for some nine years under the Lunacy Act 1890, for being of unsound mind, eventually escaped and sought to bring proceedings against the medical practitioner who had signed a certificate which resulted in his detention. Although a jury found that he was sane and upheld his claim, judgment was awarded for the defendant because the limitation period had expired. Given the finding of the jury that he was, at all material times sane, he was not able to rely upon a provision suspending the limitation period in the case of a person of unsound mind. Dismissing his appeal to the House of Lords, Viscount Sumner remarked (at 582):

“I am not concerned to justify what the Legislature has enacted or to regret that it has gone no further to assist persons in the appellant’s position.”

150 Because the limits of the operation of the provisions presently in question are matters of importance, and not without their difficulties, I would grant leave to appeal.

151 Because, for the reasons set out above, I am also of the opinion that the answers given to the separate questions cannot be sustained, I would uphold the appeal, and set aside the answers. In lieu thereof I would answer the questions as follows:

Q1: Did the plaintiff suffer from an impaired mental condition which constituted a disability within the meaning of s 11(3) of the Limitation Act 1969 and if so, for what periods?

A: Yes, from the date of his release from detention on 10 November 1992 until the date of trial.

Q2: Has the running of the limitation period been suspended as provided in s 52 of the Limitation Act 1969 and if so, for what periods?

152 For reasons noted at [108] above, the matter should be remitted to the trial judge for further consideration of outstanding issues on the motion.

Costs

153 The Appellant seeks an order that the Respondent pay its costs of the appeal. Having been successful, it would normally be entitled to such an order, but the Respondent would be entitled to a certificate under the Suitors’ Fund Act 1951 (NSW). The purpose of such a certificate is to avoid an individual being responsible for additional costs incurred as a result of error on the part of a trial judge. That policy is, however, only achieved to the extent that the cap on recovery under the Suitors’ Fund Act permits. In my view, it would not be in the interests of the proper administration of justice for the State to recover some part of its costs, over and above those which it is itself required to meet under the Suitors’ Fund Act, because of the limits imposed on the amount of that indemnity. Accordingly, in my view each party should bear its own costs of the proceedings in this Court.

154 There remains a question as to the costs as between the parties of the proceedings at trial. Whilst upholding the plaintiff’s contention that the proceedings were not issued out of time, the trial judge ordered that the costs of the hearing before him “should be plaintiff’s costs in the cause”. If the questions are answered in the manner I propose, the State should have its costs of the hearing of the separate questions before the trial judge.

Orders

155 Accordingly, I would propose the following orders:

(1) Grant leave to appeal.

(2) Uphold the appeal, set aside the answers to the separate questions given by the trial judge and in lieu thereof give the answers set out at [143] above.

(3) Order that the plaintiff pay the defendant’s costs of the hearing of the separate questions before the trial judge.

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Citations

State of New South Wales v Harlum [2007] NSWCA 120

Most Recent Citation

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27

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Saunders v Jackson [2009] NSWCA 192

Cases Cited

9

Statutory Material Cited

6

State of New South Wales v Bennie [2005] NSWCA 172

State of New South Wales v Julianne Higgins by her tutor David Benedict O'Shea; Barnardos Australia v Julianne Higgins [2005] NSWCA 244

Azshion v North Coast Area Health Service [2006] NSWSC 769

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CITATION:	State of New South Wales v Harlum [2007] NSWCA 120
HEARING DATE(S):	23 March 2007
JUDGMENT DATE:	25 May 2007
JUDGMENT OF:	Beazley JA at 1; Tobias JA at 100; Basten JA at 109
DECISION:	1. Leave to appeal granted; 2. Appeal dismissed with costs.
CATCHWORDS:	STATUTE OF LIMITATIONS – extension of limitation period – suspension of limitation period as a result of disability under s 52 of the Limitation Act 1969 (NSW) – respondent substantially impaired in management of affairs in relation to cause of action by reason of mental condition – respondent suffering from major depressive illness - respondent unable to reason normally about various aspects involved in bringing a claim
LEGISLATION CITED:	Crown Proceedings Act 1988 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW) Limitation Act 1969 (NSW) ss 11(3)(b), 13, 14(1)(b), 18A, 52 Suitors’ Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW) ss 75A, 101 Uniform Civil Procedure Rules 2005 (NSW) Pt 28
CASES CITED:	Azshion v North Coast Area Health Service [2006] NSWSC 769 Harnett v Fisher [1927] AC 573 Hawkins v Clayton (1988) 164 CLR 539 Kotulski v Attard [1981] 1 NSWLR 115 Olive v Johnstone [2006] NSWCA 21 State of New South Wales v Julianne Higgins bht David Benedict O'Shea; Barnardos Australia v Julianne Higgins [2005] NSWCA 244 State of New South Wales v Mulcahy [2006] NSWCA 303 Stingel v Clark (2006) 80 ALJR 1339 Stubbings v Webb [1993] AC 498 The State of New South Wales v Bennie [2005] NSWCA 172 Walsmley v Cosentino [2001] NSWCA 403
PARTIES:	State of New South Wales (Appellant) John Harlum (Respondent)
FILE NUMBER(S):	CA 40346/06
COUNSEL:	JE Marshall SC; PM Sibtain (Appellant) K Andrews (Respondent)
SOLICITORS:	IV Knight Crown Solicitor (Appellant) WH Parsons & Associates (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	20003 of 2002
LOWER COURT JUDICIAL OFFICER:	Kirby J
LOWER COURT DATE OF DECISION:	18 May 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Harlum v State of NSW [2006] NSWSC 443