State of NSW v Elms

NEW SOUTH WALES COURT OF APPEAL

CITATION:
State of NSW v Elms  [2008] NSWCA 157

FILE NUMBER(S):
40572/07

HEARING DATE(S):
18 June 2008

JUDGMENT DATE:
18 June 2008

EX TEMPORE DATE:
18 June 2008

PARTIES:
STATE OF NEW SOUTH WALES  (Claimant/Appellant) 
Brian ELMS  (Opponent/Respondent) 

JUDGMENT OF:
Beazley JA Giles JA Hodgson JA   

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
14607/06

LOWER COURT JUDICIAL OFFICER:
Harrison AsJ

LOWER COURT DATE OF DECISION:
13 August 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
Elms v State of NSW [2007] NSWSC 876

COUNSEL:
P MENZIES QC/ D MALLON  (Claimant/Appellant) 
B TOOMEY QC/ D J PRICE  (Opponent/Respondent) 

SOLICITORS:
McCabe Terrill Lawyers  (Claimant/Appellant) 
Phillip Sim & Associates  (Opponent/Respondent) 

CATCHWORDS:
LIMITATION OF ACTION - Extension of time – Claim by police officer for psychological/psychiatric injury – Onus on plaintiff to show there can be an acceptably fair trial – Requirement to identify the issues to be tried – Need for reasonable clarity as negligence alleged against defendant – Onus to show there can be an acceptably fair trial not discharged in the absence of such clarity. 

LEGISLATION CITED:
Limitation Act 1969 (NSW) ss 18A, 60C, 60E

CATEGORY:
Principal judgment

CASES CITED:
State of New South Wales v Brennan [2004] NSWCA 206
Whybro v State of NSW [2006] NSWCA 324

TEXTS CITED:

DECISION:
(1)  Leave to appeal granted. 
(2)  Notice of appeal to be filed within 14 days. 
(3)  Appeal allowed. 
(4)  Orders below set aside. 
(5)  Application remitted to the Common Law Division to be determined in accordance with these reasons. 
(6)  Opponent to pay the claimant’s costs of the application and appeal and have a suitor’s fund certificate if otherwise eligible. 
(7)  Opponent to pay the costs of the hearing before the Associate Judge. 

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40572/07
SC 14607/06

BEAZLEY JA
GILES JA
HODGSON JA

18 JUNE 2008

STATE OF NEW SOUTH WALES v Brian ELMS

Judgment

1. BEAZLEY JA:  The court is in a position to give judgment in the matter.  I will ask Justice Hodgson to give the first judgment. 

2. HODGSON JA: On 13 August 2007, Associate Justice Harrison decided an application brought by the opponent, who I will call the plaintiff, for an extension of time pursuant to s 60C(2) of the Limitation Act 1969 (NSW) to file and serve a statement of claim against the claimant, which I will call the defendant. On that day, the Associate Judge made the following orders:

   (1)The plaintiff is granted an extension of the limitation period from 1 January 1987 pursuant to ss 60C and 60E of the Limitation Act 1969 (NSW).

   (2)A statement of claim is to be filed and served within 14 days. 

   (3)The plaintiff is to pay the defendant’s costs of the application. 

3. It is common ground that more properly these orders should have been to extend the time for commencement of the proceedings to 20 November 2007, but nothing turns on this. 

4. The defendant seeks leave to appeal from…