Citation: Harlum v State of NSW [2006] NSWSC 443
Court: Supreme Court of New South Wales, Common Law Division
Date: 18 May 2006
Judge(s): Kirby J
Background
The plaintiff was a car industry worker with no criminal history who was arrested in 1991 as part of a dramatic police operation involving thirty officers and a helicopter. He was charged with murder and drug offences arising from an alleged contract killing. After spending approximately 15 months on remand, he was acquitted of all charges following a jury trial in November 1992.
The plaintiff commenced proceedings against the State of New South Wales in January 2002, more than nine years after his acquittal. He claimed damages for wrongful arrest, false imprisonment, and malicious prosecution. The State is statutorily responsible for the conduct of both NSW Police and the Director of Public Prosecutions.
The State raised a limitation defence, arguing the claims were out of time. The plaintiff responded by seeking an extension under section 52 of the Limitation Act 1969, on the basis that he had been a "person under a disability" within the meaning of the Act for a substantial period following his acquittal.
Legal Issues
- Whether the plaintiff was a "person under a disability" within the meaning of section 11(3)(b) of the Limitation Act 1969 during the period between his acquittal in November 1992 and the filing of his statement of claim in January 2002.
- Specifically, whether any mental impairment had substantially impeded the plaintiff in managing his affairs in relation to his causes of action.
- Whether the causes of action were therefore statute-barred.
Decision
After his acquittal, the plaintiff did not simply return to normal life. He received anonymous threats he believed came from police, stopped explaining his movements to family, went into effective hiding, and eventually relocated to a remote deer farm in rural New South Wales for approximately six years. He had almost no contact with his children during that period and lived an isolated, transient existence very different from his pre-arrest life. Expert psychiatric evidence was given by multiple practitioners, including Dr Westmore and Dr Gertler for the plaintiff and Dr Champion for the defendant.
Kirby J accepted the evidence of Doctors Westmore and Gertler and preferred Dr Westmore's opinion over that of Dr Champion. His Honour found that Dr Champion's opinion failed to address each element of the statutory definition, particularly whether the plaintiff was substantially impeded in the management of his affairs in relation to his causes of action by reason of a mental condition. The court found, as a matter of probability, that the plaintiff suffered from such an impairment and that it substantially prevented him from taking legal advice or commencing proceedings.
The court found the disability continued at least until the plaintiff left the deer farm in early 1998, and on the balance of probabilities persisted until 1 January 2000. Even after he relocated to Albury and resumed work as a car salesman, his behaviour remained consistent with ongoing significant impairment. He had seen his children only twice in six and a half years and had not sought permanent reconciliation with his family. The statement of claim was filed on 2 January 2002, within the limitation period as extended by the disability finding.
On costs, the court noted that the plaintiff's claim appeared on its face to be out of time, and the State was not unreasonable in requiring the plaintiff to prove his disability. Accordingly, costs were ordered as plaintiff's costs in the cause rather than on an indemnity basis.
Orders Made
- The plaintiff suffered from a disability such that the causes of action are not statute-barred.
- Costs are to be the plaintiff's costs in the cause.
Key Takeaways
- A plaintiff whose mental impairment substantially impedes the management of their affairs in relation to a cause of action may qualify as a "person under a disability" under section 11(3)(b) of the Limitation Act 1969, thereby stopping the limitation clock from running.
- The court applied a functional test: it was not sufficient to show psychiatric illness in general terms. The impairment had to be shown, as a matter of probability, to have substantially prevented the plaintiff from taking steps to pursue their legal claims.
- Behavioural evidence, including social withdrawal, avoidance of family, geographic isolation, and failure to seek legal advice despite knowing of a potential claim, can support a finding of disability when assessed alongside expert psychiatric opinion.
- Where a defendant is not unreasonable in requiring a plaintiff to prove disability, the court may decline to award indemnity costs even where the plaintiff ultimately succeeds on the limitation question.
- The decision turned heavily on the court's assessment of competing expert evidence. Kirby J rejected the defendant's expert in part because that opinion did not engage with each element of the statutory definition, illustrating the importance of expert evidence directly addressing the precise statutory language.
Legislation and Cases Referenced
Legislation:
- Limitation Act 1969 (NSW), particularly sections 11(3)(b) and 52
- Compensation to Relatives Act 1897 (NSW)
Cases:
- Olive & Anor v Johnstone [2006] NSWCA 21
- Kotulski v Attard [1981] 1 NSWLR 115
- State of New South Wales v Bennie [2005] NSWCA 172