State of New South Wales v Mulcahy

The plaintiff, who had been arrested, charged, tried, and acquitted for armed robbery, sued the State of New South Wales for assault, false imprisonment, and other claims. The plaintiff initiated proceedings approximately 11 years after his arrest, following admissions of fabrication by police officers during an inquiry by the Police Integrity Commission. The State opposed the plaintiff's attempt to amend his Statement of Claim, arguing that the claims were time-barred and that the plaintiff could not succeed.

The central legal issue before the Court of Appeal was whether the plaintiff should be permitted to amend his Statement of Claim to pursue certain counts that had been previously abandoned. This amendment was sought to allow the plaintiff to rely on section 55 of the Limitation Act, which addresses fraudulent concealment, and potentially estoppel, as a response to the State's defence that the claims were statute-barred. The Court also considered whether the proposed amendments were arguable and whether the State would suffer prejudice.

The Court of Appeal determined that the plaintiff's proposed reply to the time bar defence, relying on section 55 of the Limitation Act and/or estoppel, was not unarguable. Applying principles similar to those in *Queensland v J L Holdings* and considering the *Civil Procedure Act 2005*, the Court found that the plaintiff should be permitted to amend his pleadings, subject to them being settled in satisfactory terms. The Court refused the State's application for leave to appeal.

The Court ordered that, once the pleadings were settled and in satisfactory terms, the Ordinary Summons for Leave to Appeal should be dismissed, with costs to be the plaintiff's costs in the action.