This matter was heard in the NSW Court of Appeal and Judgment was given on 28 October 2010.
Leave to appeal was sought by the State of NSW in order to appeal a decision of Judge Levy in the District Court of NSW in relation to interlocutory orders. His Honour Judge Levy dismissed an application filed by the appellant to strike out and dismiss the Statement of Claim filed by the Plaintiff and granting the Plaintiff leave to file an Amended Statement of Claim together with various orders relating to costs.
The decision involved an analysis of the Limitation Act 1969 and the Uniform Civil Procedure Rules and the Civil Procedure Act.
The factual matrix involved in the matter was the attendance of police officers at the Plaintiff’s home for the purpose of executing a search warrant relating to the supply of drugs.
The police became involved in a scuffle with the Plaintiff with differing versions existing as to exactly what happened on the day. The Plaintiff alleges that the police personnel who attended upon his home arrested him in a manner that was not necessary and which exceeded reasonable force. During the course of the arrest the Plaintiff sustained physical injuries that required treatment.
The Court of Appeal found that the Fifth Further Amended Statement of Claim, insofar as it was seeking aggravated damages based on the assault, was barred by Section 18A (2) of the Limitation Act 1969 as it had not commenced within three years of the cause of the action.
The basis of the dismissal was that the Court of Appeal held that the Firth Further Amended Statement of Claim was a claim for damages for a personal injury. As this was a claim for a personal injury the proceedings were barred by Section 18A (2) of the Limitation Act 1969, as this did not commence within the 3 years of the incident. This of course was in contrast to the findings of Levy DCJ, who held that the proceedings were not a claim for a personal injury and therefore not subject to Section 18A(2) of the Limitation Act 1969.
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