FEDERAL COURT OF AUSTRALIA

Mullaley v State of Western Australia [2020] FCA 13

File number:

WAD 149 of 2019

Judge:

COLVIN J

Date of judgment:

13 January 2020

Catchwords:

PRACTICE AND PROCEDURE - application for extension of time to commence a claim for personal injury suffered by alleged negligence of certain police officers - where personal injury alleged was a mental health injury - consideration of s 39 of the Limitation Act 2005 (WA) - consideration of s 55 of the Limitation Act - consideration of the meaning of awareness - finding that time accrued from diagnosis of the applicants' mental health conditions - whether there was a discretion to extend time - whether the applicants attributed their mental health injuries to the actions of the police officers prior to the expiry of the limitation period - finding that there was no discretion to extend time - application dismissed

Legislation:

Limitation Act 2005 (WA) ss 14, 35, 39, 41, 55, 79

Cases cited:

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63; (2015) 48 WAR 139

Baker-Morrison v New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454

Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341

BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Dedousis v Water Board [1994] HCA 57; (1994) 181 CLR 171

Gill v Commonwealth of Australia [1999] ACTSC 64

Gill v Ethicon Sàrl (No 5) [2019] FCA 1905

Harrex v Hall-King [2012] TASSC 45

Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447

Queensland North Australia Pty Ltd v Takeovers Panel [2015] FCAFC 68; (2015) 230 FCR 150

Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115

Shire of Toodyay v Merrick [2016] WASC 29

Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19

Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 7] [2015] WASC 280

Waldron v Joondalup Hospital Pty Ltd [2018] NSWCA 182; (2018) 98 NSWLR 552

Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514

Wells v Commonwealth [2014] NSWSC 148

Date of hearing:

31 October 2019

Date of last submissions:

5 December 2019

Registry:

Western Australia

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

119

Counsel for the Applicants:

Mr TH Offer with Ms D Tang

Solicitor for the Applicants:

The National Justice Project Ltd

Counsel for the Respondents:

Mr AJ Sefton

Solicitor for the Respondents:

State Solicitor's Office

ORDERS

WAD 149 of 2019

BETWEEN:

EDWARD MULLALEY

First Applicant

TAMICA MULLALEY

Second Applicant

AND:

STATE OF WESTERN AUSTRALIA

First Respondent

SENIOR CONSTABLE PAUL MOORE

Second Respondent

CONSTABLE JULIA HUXLEY

Third Respondent

SERGEANT DARREN CONNOR

Fourth Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

13 January 2020

THE COURT ORDERS THAT:

1.    The application pursuant to s 39 of the Limitation Act 2005 (WA) for leave to commence an action against the first respondent for damages relating to personal injury as set out in the statement of claim filed 18 March 2019 be dismissed.

2.    On or before 7 February 2020, the parties do file and serve a joint minute of proposed orders as to costs or separate outlines of submissions as to the costs orders that should be made consequent upon order 1.

3.    Unless otherwise ordered, the question of costs be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    The applicants seek an extension of time in which to advance a claim for personal injuries suffered by reason of the alleged negligence of certain police officers. The claim is sought to be advanced against the State of Western Australia. The State is said to be liable for the conduct of the police officers.

2    An originating application that included the claim in negligence was commenced in this Court on 18 March 2019. A statement of claim was also filed and served on that date (Claim). The extension of time sought is in respect of part of the Claim as already commenced.

The Claim as alleged

3    The alleged factual basis for the Claim arises in tragic circumstances.

4    In outline, the Claim alleges that the second applicant (Ms Mullaley) was violently assaulted by Mr Mervyn Bell on 19 March 2013 in a street in Broome. The police were called by a person who witnessed the assault. After the assault, Ms Mullaley was naked and injured. When the police arrived Ms Mullaley was covered in only a bloodied sheet. She had blood on her face. Ms Mullaley's father, the first applicant (Mr Mullaley) arrived at the scene. He told the attending police officers that Mr Bell had assaulted Ms Mullaley. Two other people arrived who had been caring for Ms Mullaley's infant son. They brought the baby with them. The baby was passed to Mr Mullaley, but then given back to the two people who had been looking after the baby. There was a confrontation between the attending police officers and the applicants. Ms Mullaley swore at the officers and spat at one of them. Other police officers arrived and then Ms Mullaley was arrested. The police officers then focussed their inquiries on obtaining statements concerning the conduct of Ms Mullaley. They did not pursue inquiries concerning the assault on Ms Mullaley by Mr Bell nor as to his whereabouts. Later that night, the police were told a number of times that Mr Bell had taken the baby and had made threats to kill the baby. The police did not then take any action until 9.00 am the following day when a missing person inquiry was commenced. Later that day, Mr Bell was found at a roadhouse trying to resuscitate the baby. He was subsequently convicted of the murder and sexual assault of the baby.

5    In the proceedings in this Court, Mr Mullaley and his daughter Ms Mullaley are the applicants. They bring claims of unlawful racial discrimination concerning the conduct of the police officers and claims for breach of a duty of care to avoid mental harm to them. The present application is not concerned with the discrimination claim.

6    As to the claim in negligence, the State is alleged to have breached its duty of care (a) by failing to ensure that its police officers were adequately trained and that they complied with training, instructions and policies; (b) by its police officers failing to take steps to assess and investigate the reports that the baby was missing and that Mr Bell had made threats to murder the baby; and (c) by its police officers failing to take steps commensurate with the risk reported to them to apprehend Mr Bell.

7    It is further alleged that the breach of the duty of care caused the death of Ms Mullaley's baby and consequential harm to the mental health of the applicants in the form of 'recognised psychiatric conditions'. Those conditions are not otherwise particularised in the Claim.

The issues on the application for an extension of time

8    It is common ground that the negligence claims that form part of the Claim are brought out of time. The issues that arise on the present application concern the extent of the Court's discretion to extend time. The State says that there is no discretion to extend the time for commencement of the negligence claims that form part of the Claim. Therefore, it submits, the application should be refused and the claim is statute barred. Otherwise, the State advances no submission against the exercise of the discretion to extend time if the Court (a) finds there is a discretion; and (b) is otherwise satisfied on the material that there is a proper basis for the discretion to be exercised in all the circumstances.

Summary of decision

9    For the following reasons, there is no discretion to extend the time to bring the negligence claims set out in the Claim and the application for an extension of time must be refused.

Proper approach to limitation questions

10    It is well established that it is undesirable for limitation questions that depend upon contested factual issues to be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases: Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 533.

11    In Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, the High Court considered a case in which an application for an extension of time in which to bring an action for alleged medical negligence had been refused. The application had been supported by affidavit evidence and there was no cross-examination. An appeal was upheld. In the High Court it was found that there had been error by the appellate court as to the nature of the discretion and the original decision was reinstated. The case focussed upon whether there would be prejudice because the relevant medical practitioner was unlikely to have a recollection of events due to the passage of time. There was no suggestion that the approach in Wardley should have been adopted. That may have been because there was no factual contest as to matters bearing on the application.

12    In Shire of Toodyay v Merrick [2016] WASC 29 an application to extend time was sought on the basis of alleged fraud. Gething AM observed that the conduct relied upon was the same as the conduct alleged to form the basis for the substantive causes of action: at [104]. His Honour observed that it may be appropriate in such cases for the Court to order the determination of the application at the same time as the substantive action, citing Trafalgar West Investments Pty Ltd as Trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [No 7] [2015] WASC 280 at [108] (Kenneth Martin J). However, that course was not followed because there were no affidavits filed in opposition and there was 'no significant factual conflict in the affidavit evidence' on the application.

13    Trafalgar West Investments was a case concerned with an application for leave to amend. It was not an application for an extension of time in which to bring an action. The course followed was to grant conditional leave reserving the right to raise limitation defences on the basis that the amendments raised a new claim that was out of time. A similar course was followed in Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341. Nevertheless, where there is a clear case that a claim is out of time, leave should not be given to plead the time-barred claim: BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18.

14    In Queensland North Australia Pty Ltd v Takeovers Panel [2015] FCAFC 68; (2015) 230 FCR 150 it was argued that the Takeovers Panel was required to consider whether an application was out of time (by reason of statutory time limits) before making a declaration. Reasoning by reference to the statutory scheme, the Court (Dowsett, Middleton and Gilmour JJ) rejected the submission in the following terms, at [75]:

As the appellants correctly submit, this submission overlooks the reality that limitation periods often cannot be determined prior to findings on the facts underlying an asserted cause of action, so that limitation questions rarely justify summary determination of proceedings: see Wardley ... The asserted facts in this case are that certain circumstances were said to exist and were such that the Panel should declare them to be unacceptable circumstances. Before the discretion to extend time may be exercised under s 657C(3) those circumstances require to be proved. There may be a factual contest. There is no difficulty, in that situation, for the Panel first resolving the factual questions and thereafter determining whether or not to extend time under s 657C(3). The legislative scheme here does not suggest a different approach.

15    Other cases have distinguished applications for an extension of time in which to bring proceedings from instances where there is a dispute as to whether a limitation defence might properly form the basis for a strike out application. In those cases, it has been indicated that the approach in Wardley may be confined to instances where there is an application for summary dismissal on the basis of limitation: Harrex v Hall-King [2012] TASSC 45 at [15]-[16] (Porter J); Gill v Commonwealth of Australia [1999] ACTSC 64 at [33]-[35] (Miles CJ) and Wells v Commonwealth [2014] NSWSC 148 at [7]-[8], [18] (Adamson J).

16    Recently, in Gill v Ethicon Sàrl (No 5) [2019] FCA 1905, Katzmann J dealt with the question whether there should be leave to extend the time under the Limitation Act 2005 (WA) in the course of delivering reasons after the final hearing: at [4807]ff.

17    The Court can extend time after proceedings have been commenced thereby, in effect, validating a commencement of proceedings that occurred before leave was given: Waldron v Joondalup Hospital Pty Ltd [2018] NSWCA 182; (2018) 98 NSWLR 552 at [136] (Sackville JA, McColl AP and Meagher JA agreeing). It was suggested in submissions for the State that there may remain a question as to whether any order granting leave still had to be made within the period for which the discretion to extend applies. However, the reasoning in Waldron is against that view. In Waldron a functional reading of s 39 of the Limitation Act was adopted. The provision was interpreted to mark out the temporal limits of the extension that can be granted rather than also specifying the time within which the leave must be given. On that basis, an application commenced within the period for which time may be extended may be the subject of a subsequent grant of leave.

18    Therefore, the nature of the present application is not a reason why the application could not be heard at the same time as the final hearing. In cases where there is a substantial dispute as to the facts relevant to whether there can and should be an extension of time and there will need to be a final hearing as to substantive issues in any event, then it may be in the interests of justice for all disputed factual issues to be determined at a single hearing. It is difficult to see why, in those or other appropriate circumstances, the Court would be unable to list the application for an extension of time to be heard at the same time as the final hearing. Further, where (as here) the respondent contends that the application for an extension of time must be refused because there is no discretion to extend time then, in substance, the respondent's position is that the limitation period has expired and therefore that is a reason why the approach in Wardley should apply. Before deferring the hearing of the application for an extension until the final hearing, the Court would need to give appropriate weight to the extent to which such a procedural course would undermine the purpose of limitation provisions and the certainties that they are intended to afford.

19    In the present case, the nature of the Claim is such that the factual circumstances will need to be investigated for the purposes of the claim of unlawful discrimination because there is no suggestion that an extension is needed to bring the discrimination claim. However, neither party contended that the application for leave to commence the negligence claims should be held over for subsequent determination at trial. The adoption of that position may reflect the fact that save for one limited respect, no submission was advanced by the State to the effect that the evidence of the applicants should not be accepted. There was no cross-examination of the applicants. The State adduced evidence of certain of the circumstances associated with an internal police investigation including a letter of complaint and transcripts of interviews with each of the applicants. Also, the evidence for the State was not challenged by the applicants. Therefore, the application falls to be determined on the basis of the largely uncontested factual material presented by the parties. In those circumstances, I will proceed to deal with the application.

Relevant Limitation Act provisions

20    The Limitation Act provides for time limits within which certain proceedings must be commenced and the point from which the time limit commences to run. It also provides for the circumstances in which the Court may grant leave to commence proceedings outside the time limit. There are specified periods within which leave to commence out of time may be sought.

21    Section 14(1) of the Limitation Act provides that an action for damages for personal injury cannot be commenced if three years have elapsed since the cause of action accrued.

22    By s 55(1), a cause of action for personal injury accrues to a person when the only or earlier of two events occurs: first, the person becomes aware that he or she has sustained a not insignificant personal injury; and second, there is the first symptom, clinical sign or other manifestation consistent with the person having sustained a not insignificant personal injury.

23    So, the inquiry posed by the terms of s 55(1) concerns awareness or manifestation of injury. The relevant date for accrual of the cause of action for personal injury is not when the injury was sustained but rather when there was awareness of the injury or manifestation of the injury. The action must be commenced within three years of such awareness or manifestation of injury.

24    Then there is a discretion to extend time for a claim for personal injury. It arises if the Court is satisfied that when the limitation period expired the claimant (a) was not aware of the physical cause of the injury; (b) was aware of the physical cause but was not aware that the injury was attributable to the conduct of a person; or (c) was aware of the physical cause and that it was attributable to the conduct of another person but after reasonable inquiry had been unable to establish the identity of that person: 39(3).

25    Finally, if one of the above three conditions is met at the time that the limitation period expires then the Court can extend time for up to three years from when the person making the claim became aware or ought reasonably to have become aware of the same three things, namely (a) the physical cause of the injury; (b) that the injury was attributable to the conduct of a person; and (c) the identity of that person: 39(4). It is to be noted that s 39(4) operates by reference to when the claimant became aware or ought reasonably have become aware of these three things. So, for that purpose there is both a subjective and an objective test. The objective test might be met at a point in time that precedes awareness or manifestation of personal injury or even possibly after awareness or manifestation of injury (such as where acute insight or understanding means there is actual awareness of injury before a person ought reasonably have become aware). Therefore, it is conceivable that the three year period for the possible extension of time may commence before or after the expiry of the limitation period. If so, the period of the available extension if measured from the expiry of the limitation period may be more or less than three years. All will depend upon when the claimant ought reasonably have become aware of the three things specified in s 39(4).

26    These provisions deploy a number of related concepts in describing when the limitation period commences, when there will be a discretion to extend time and the length of the period for which the discretion may apply. I will deal with those concepts before considering the facts in the present case.

Awareness

27    Awareness requires actual perception or conscious understanding. Awareness does not arise from mere notice or some form of deemed or constructive knowledge. Rather, the term awareness refers to a subjective state of mind which involves the conscious knowing of facts and their significance. This was the conclusion reached in relation to the use of the term in s 39 of the Limitation Act in AME Hospitals Pty Ltd v Dixon [2015] WASCA 63; (2015) 48 WAR 139 at [34]-[36] (McLure P, Newnes JA agreeing). The Limitation Act provides that in the case of a claim by a person under the age of 18 when the cause of action accrued, then it is knowledge and awareness of either the person who may bring a claim or the guardian of that person. Different provisions then apply as to the period for which time may be extended: 41. Broader issues about whether there can be imputed knowledge by reason of alleged authority to know on behalf of another do not arise in this case.

28    In Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19 at [40], the Court of Appeal referred to the relevant criterion in s 55(1) as being 'awareness, or means of awareness, of the existence of a personal injury'. In context, the reference to 'means of awareness' was a reference to the second of the two events specified in s 55(1), namely, manifestation of injury. If there is no such manifestation before the person becomes aware of the injury then it is awareness that the claimant has suffered a not insignificant injury that is the only event and it sets the date that the cause of action accrues. However, if there is an earlier manifestation of the injury (by symptom, clinical sign or other manifestation) then that is the 'means of awareness' and the cause of action accrues at that time. To that limited extent, the cause of action may accrue even though there is no actual awareness.

29    Further, where actual awareness sets the point in time when a cause of action for personal injury accrues then it is the awareness of the person to whom the cause of action accrues (prospective claimant) that establishes that point. People with different levels of education or mental acuity or insight may derive different states of awareness when confronted with similar factual circumstances. Therefore, a conclusion as to when a prospective claimant was aware that they had suffered a personal injury must be informed by the evidence as to the circumstances of that person. If a prospective claimant is not capable of forming the required state of awareness at all then it will be the second condition that sets the point in time when the cause of action accrues.

30    This was the way in which awareness was viewed in AME Hospitals when dealing with the words 'ought reasonably to have become aware' in s 39(4). As to those words McLure P (agreeing with Buss JA as to that aspect) said 'the objective test of reasonableness is to be assessed having regard to the characteristics, attributes and circumstances of the particular person to whom the cause of action accrues': at [42]. Likewise, when s 39(3) is dealing with actual awareness of the claimant it means awareness having regard to the characteristics, attributes and circumstances of the prospective claimant. A claimant who lacks the capacity to understand the matters listed in s 39(3) is not capable of being actually aware of those matters and therefore it will be manifestation of the injury that sets the date when the cause of action accrues.

31    However, when it comes to s 39(4), the introduction of the objective language concerned with when a claimant ought reasonably to have become aware of the relevant matters means that the section treats the prospective claimant as being aware of matters that would have been revealed had steps been taken to acquire knowledge that were reasonable steps for that person to have taken in all the circumstances.

Manifestation

32    A manifestation is a matter that shows, displays, indicates or reveals something else. It shows plainly or with considerable certainty something that is otherwise latent, abstract or uncertain. It is term that must be applied to a thing, state or condition that is being made manifest. There is no manifestation without the manifested. In that regard, s 55(1) does not refer simply to the first symptom, clinical sign or other manifestation of injury. Rather, it refers to a manifestation that is consistent with the prospective claimant having sustained a not insignificant personal injury. As noted below, inherent in the concept of personal injury is the occurrence of an external event or circumstance that is the source of harm to the person. So, the manifestation referred to is the manifestation of an injury of a kind that is attributable to an external event or circumstance.

33    Further, a symptom or clinical sign is not 'consistent with' a particular type of injury unless it indicates that injury with considerable certainty. Otherwise, it is 'consistent with' many things and provides no real manifestation of the particular type of injury. Therefore, the manifestation must be consistent with an external event or circumstance of a kind that would inflict a not insignificant personal injury and not some other cause or occurrence.

34    Taken together, the terms 'first symptom', 'clinical sign' and 'other manifestation' refer to something that allows a condition or state of affairs to be understood, perceived or deduced as being evident, obvious, apparent or plain. As the relevant condition or state of affairs is a 'not insignificant injury' and the terms 'symptom' and 'clinical sign' are used, they all indicate a manifestation of a kind that would enable an assessment to be made that a personal injury has been sustained and that it is a not insignificant injury. Such an assessment may not be able to be made without the application of medical expertise. Further, it is quite possible that there will be a point where there is a symptom or clinical sign of personal injury but it is not until it persists or worsens that there is the manifestation of a not insignificant injury.

35    Each of these aspects render the assessment as to when there was the first symptom or clinical sign of the requisite type of injury potentially a matter about which it is difficult to be precise. However, in order for there to be the requisite manifestation, there must be evidence of a kind that makes obvious or considerably certain that the person has suffered a not insignificant personal injury and an assessment as to whether that is the case may require the insight provided by expert medical examination of the available evidence.

36    Given the terms of s 55(1)(a), the reference to symptom, clinical sign or other manifestation does not require the prospective claimant to be convinced. If s 55(1)(b) were interpreted as requiring actual understanding by the prospective claimant then the additional test in s 55(1)(b) would add little if anything to s 55(1)(a). Rather, in context, there must be evidence of a kind that manifests the injury (irrespective of whether it is so understood by the prospective claimant). This would occur when what is evident would be understood by any reasonable person as being the first symptom, clinical sign or other manifestation of a not insignificant personal injury. However, as I have indicated, it is quite conceivable that the significance of what is evident may only be understood by a person with the requisite medical expertise. In those instances, there would be no first symptom, clinical sign or other manifestation of the requisite injury until it was so interpreted by a person with the expertise to do so. The evidence of itself would not manifest the injury. It would only be when the evidence was brought before a person with the skill and expertise to interpret its significance that it could be said that the evidence then manifests the injury. In that instance there would be no manifestation until the significance of the evidence was exposed by the person with the knowledge required to understand its significance.

37    In either case, if the matters alleged to manifest the injury lack the requisite character (because they would not be so understood by a reasonable person or they have not been so interpreted by a person with the requisite expertise) then the injury remains latent. A person may exhibit characteristics, conditions or behaviours that are ultimately seen to be the first symptom or clinical sign of an injury caused by an external event, but until they might be understood to have that revelatory character and the injury is understood to be a not insignificant one then the requirement expressed in s 55(1)(b) is not met.

Attributable to the conduct of a person

38    Of particular significance in the present case is the fact that the availability of the discretion to extend time only arises if the claimant was not consciously aware at the time of expiry of the limitation period that the injury the subject of the claim was attributable to the conduct of a person. Further, the extension available is only until the claimant was aware or ought to have become aware that the injury was attributable to the conduct of a person.

39    Harm is attributable to the conduct of a person if there is a connection between the person's conduct and the harm which is of such a kind that the harm is considered to be or is regarded as having been produced by or authored by or as owing to that person. It is a term that describes a particular type of causal connection when the harm is identifiable as, in effect, an attribute or emanation of the person. The person is the source or originator of the harm. The required connection is unqualified by terms such as sole, dominant, direct or proximate: Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115 at [27], applied in AME Hospitals at [31]-[33] (McLure P, Newnes JA agreeing). For harm (in this case personal injury) to be described as being attributable to a particular person is to identify that person as having a form of responsibility for the harm. The responsibility might arise from causation or control or some other form of authority over what has occurred. This sense is reflected in the use of the term attributable to indicate sufficient authorship or ownership to claim creative rights as the originator of a work or invention or in systems of accountability or authority resulting in an event being attributed to the person in ultimate control.

40    Significantly, the provisions in the Limitation Act do not advert to conceptions of causation, and especially do not refer to the conceptions of causation that form part of recognised legal causes of action that may found a claim to damages for personal injury. The issue is not whether the person thinks they may have a legal claim. The issue is whether the person has or should have reached a state of awareness of both the physical cause of the injury and the identification of a person as the source of the harm. The point must be reached where the injury is or should be considered by the claimant to lay at the feet of a particular person. A lawyer in the same position as the claimant may reach that conclusion informed by an understanding of the legal principles of causation to be applied. However, a prospective claimant is not to be treated as looking at the facts through the lens of an understanding of applicable legal principle. When it comes to determining whether there is a discretion to extend time, those matters do not correspond with the material elements of a cause of action: AME Hospitals at [21] (McLure P, Newnes JA agreeing).

41    Whether responsibility for a particular personal injury is or should be viewed as being attributable to a particular person is an everyday factual conception not a legal conception. So, the question is when did the claimant consider or regard (or when should the claimant have considered or regarded) a person to be the responsible cause or author of the physical injury, bearing in mind that awareness of the identity of the person is a separate matter.

The English authorities

42    In AME Hospitals, Buss JA expressed the view that actual awareness and knowledge within s 39(3) and (4) means 'awareness or knowledge of the relevant fact or facts with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or other originating process': at [200]. In reaching that conclusion, his Honour referred to various English authorities as well as the decision in Baker-Morrison v New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454 at [45]-[56] (Basten JA, Ipp and Macfarlan JJA agreeing). The decision in Baker-Morrison was concerned with a limitation provision which turned upon what was known and whether that was sufficient to bring an action. It distinguished the English cases which used the term 'attributable' (but did so in different terms to that stated in s 39 of the Limitation Act).

43    As to these matters, McLure P said at [40]-[41] (Newnes JA agreeing at [265]):

I am not persuaded of the applicability or suitability of the test of awareness (and attributability) applied in the English and other cases to which Buss JA refers (awareness of relevant facts with sufficient confidence reasonably to justify the commencement of proceedings against the proposed defendants in the relevant causes of action). As previously noted, the matters in s 39(3) and (4) do not equate with all the material facts of a cause of action for damages for personal injuries. Moreover, awareness (actual or constructive) of the matters in s 39(4) triggers a further three years in which to commence proceedings.

In my view, a person will be aware of a matter which requires expert knowledge and experience if he is aware of an expert opinion which is reasonably capable of being accepted and capable of establishing the relevant facts (that is, the physical cause of the injury is attributable to the conduct of an identified person)

44    In Gill v Ethicon Sàrl (No 5), Katzmann J cited the formulation expressed by Buss JA: at [4820]. However, taking account of the reasons of McLure P (with whom Newnes JA agreed), the relevant inquiry is not to be made through the lens of what may be required to actually commence proceedings.

45    Further, in AME Hospitals, McLure P (Newnes JA agreeing) noted that the matters listed in s 39(3) do not correspond with the material elements for a cause of action: at [21]. Therefore, 'no attention is required to the legal issue of whether there is a duty of care, the factual issue of whether the standard of care has been breached or issues going to the legal aspect of causation or remoteness of damage'. Also, in determining whether an injury is attributable to a person, the question is whether there is a causal connection in fact between the injury and the conduct of that person: at [33]. Her Honour noted, but did not decide, whether conduct may be attributable to a person even when there is a non-causal connection. However, for reasons I have already given, conduct may be attributable to a person where that person had responsibility for the relevant circumstances even though the acts or omissions of that person were not the cause of the injury.

46    Therefore, the majority in AME Hospitals approached the question of attribution on the basis that it was not the legal elements of the claim that governed the inquiry. Rather, the issue posed by the use of the term 'attributable' in s 39 concerned when the prospective claimant was aware (or should have been aware) of a connection in fact. It did not matter how the claim ultimately came to be expressed legally. The question was when the prospective claimant reached a state of actual or presumed awareness that their known personal injury was attributable to some person. A person may reach that state without being aware of the particular aspects of the conduct that might assume legal significance in bringing a claim.

47    Buss JA on the other hand found that the relevant conduct of the person for the purposes of determining whether an injury is attributable to the conduct of a person is to be ascertained from the proposed particulars of negligence relied on and the evidence adduced at the hearing of the extension application: at [213]-[214]. The question was when the prospective claimant became aware of that conduct. It appears that in Gill v Ethicon Sàrl (No 5) Katzmann J applied the views of Buss P: at [4822]. However, the distinction did not loom large in the circumstances of that case.

48    Katzmann J also referred to the High Court decision in Dedousis v Water Board [1994] HCA 57; (1994) 181 CLR 171 where the Court was concerned with a provision which, like s 39 of the Limitation Act, described matters of which the prospective claimant needed to be aware before there was the commencement of a three year period in which there was a discretion to extend the time for commencement of a claim of personal injury. One of the matters of which the prospective claimant needed to be aware was the connection between the personal injury and the act or omission of the defendant. In that context, the High Court reasoned that the provision was concerned with ignorance of the existence of acts and omissions rather than legal conclusions, but the act or omission was that said to provide the basis for the claim: at 181-182.

49    Under s 39, the three year period within which there is a discretion to extend time does not start to run until the point is reached where a person, acting reasonably as to the inquiries they make, is aware or ought reasonably to have become aware (a) of the physical cause of their injury; (b) that it was attributable to a person; and (c) the identity of that person. The statutory formulation is not expressed by reference to the facts that must be known in order to commence a claim. Rather, it is directed to describing the state of awareness of a person (who will likely not be a lawyer) that, if it exists, means that it is fair and just to allow a discretion for the limitation period to be extended.

50    It appears that the provision considered in Dedousis was materially different to s 39. Its operation did not depend upon the state of awareness of the prospective claimant as to whether an injury was attributable to a particular person. Rather, it operated by reference to whether the prospective claimant was aware of the connection between the injury and an act or omission of the person against whom the claim was to be made. A person may be aware of facts that would lead that person (or a reasonable person in that position) to conclude that the cause of an injury was attributable to some person without knowing each of the facts that might ultimately be alleged as the legal foundation for a claim in negligence. A person who is aware that their injury is attributable to a person (and of the other matters stated in s 39) may be expected to take steps to attribute legal responsibility for their injury even though they do not yet know all of the facts that may come to be marshalled in support of their claim when articulated by a lawyer. Section 39 operates by reference to the state of awareness of whether the physical cause of an injury was attributable to a person (and other matters) not by reference to awareness of facts ultimately pleaded. Therefore, I consider that I am bound to apply the approach of the majority in AME Hospitals.

Personal injury and mental harm

51    A personal injury is harm that is attributable to an external event or circumstance. An injury results from harm done to a person. So, inherent within the concept of injury is the occurrence of an event or circumstance that is the source of the harm.

52    The Limitation Act defines personal injury to include mental disability which, in turn, is defined to mean 'a disability suffered by a person an effect of which is that the person is unable to make reasonable judgments in respect of matters relating to the person or the person's property'. Because the definition of personal injury is expressed inclusively, in the case of mental harm it is not confined to mental disability as defined. Whether a person has a claim for damages for mental harm that is not a mental disability of the kind defined will depend upon the law applicable to the cause of action.

53    The separate definition of mental disability appears to be included for the purpose of provisions such as s 35 of the Limitation Act which deal with the reckoning of a limitation period where a person suffers from a mental disability. Submissions were not advanced by either party as to the precise manner in which those provisions interact with s 55 where the mental disability compromises the awareness of the person who has sustained the injury.

54    When attention was drawn to the definition, counsel for the applicants did make submissions to the effect that awareness was to be adjudged taking account of the nature of the evidence concerning the mental condition of the applicant. However, it was not submitted that the mental condition in the present case was such that the applicants were unable to form the required state of awareness by reason that they suffered a mental disability as defined. For reasons already given, it may be accepted that both subjective awareness and the steps that it might have been reasonable for the applicants to take in order to become aware are matters to be adjudged having regard to the particular circumstances of the applicants.

55    There is a further point to be borne in mind when it comes to considering the references to injury in s 39(3) and (4) of the Limitation Act. Those provisions assume that the cause of action has commenced by reason that there is awareness or manifestation of a not insignificant personal injury. The references in s 39 to 'injury' are to such an injury, not just any injury. A person may be aware that an event has resulted in an injury but not know until much later that the injury is a 'not insignificant' one. So when s 39(3)(a) refers to a person being aware of the physical cause of an injury, it is referring to an awareness of the cause of a not insignificant injury.

56    As to mental health, the conditions said by the applicants to be relevant for the purposes of determining awareness were depression on the part of Mr Mullaley and post-traumatic stress disorder (PTSD) of moderate severity on the part of Ms Mullaley. They were advanced as the first manifestations of a not insignificant mental injury attributable to the events associated with the death of the baby.

57    I note that the Claim alleges that each of the applicants have suffered recognised psychiatric conditions. They are not particularised. Therefore, it is not the case that the Claim itself is confined to damages for depression for Mr Mullaley and PTSD for Ms Mullaley. Rather, they are said to be the particular manifestations by reference to which the relevant awareness of the applicants is to be adjudged. The State did advance submissions based upon other evidence concerning medical treatment of each of the applicants. It will be necessary to consider whether that evidence was sufficient to cause the applicants to be actually aware or to establish that they ought reasonably to have become aware (from inquiries that it was reasonable for them to have made) that their mental harm was attributable to someone at an earlier time than that contended for by the applicants.

Precision in proof

58    Finally, the applicant for an extension of time need not demonstrate the relevant times and periods with precision, provided it is clear that the discretion is enlivened and should be exercised. That is to say, if it is established that the extension sought will not go beyond the three year period then that is sufficient: Waldron at [127] (Sackville AJA, McColl AP and Meagher JA agreeing). Otherwise, the burden of proof is on the applicants as the parties seeking an extension of time: 79(3) of the Limitation Act. The burden includes demonstrating the negative conditions expressed in s 39(3) that give rise to the discretion to extend time. In that respect each of Mr Mullaley and Ms Mullaley must prove at least one negative in order to enliven the power: AME Hospitals at [18].

Three questions

59    Therefore, in considering whether there is a discretion to extend time there are three questions to be addressed.

60    First, when did the cause of action accrue. The answer to that question turns upon the timing of the applicants' actual awareness of having sustained a not insignificant personal injury or upon the objective manifestation of such an injury. Upon the first occurrence of one of those two things, awareness or manifestation of injury, time begins to run. Awareness is to be determined having regard to the particular characteristics and circumstances of the prospective claimant. Manifestation must be of a not insignificant injury. It may not occur until there is a medical assessment by a person with the expertise to identify the first symptom, clinical sign or other manifestation as being consistent with the prospective claimant having suffered a not insignificant injury. It is at that point in time that the symptom, sign or manifestation occurs. The fact that it may have been evident but not recognised as a manifestation of a not insignificant injury at an earlier point in time does not make that earlier point the time of first symptom or clinical sign.

61    Second, whether as at the date of accrual the applicant was consciously aware of the three specified matters, namely (a) the physical cause of the injury; (b) that the injury was attributable to the conduct of a person; and (c) after reasonable inquiry the identity of that person. In determining whether an injury is known to be attributable, the inquiry concerns the point in time at which the injury was in fact seen by the prospective claimant as one that might be placed at the feet of a person rather than an unfortunate turn of events. It is not an inquiry as to when the prospective claimant knew the facts on which the claim was based. Rather, it is an inquiry as to whether, by the end of the limitation period, the prospective claimant was consciously aware of the injury, that a person was responsible for their injury and who that person was (or had not made reasonable inquiry to find out). If so, no further time can be allowed to commence the personal injury claim. If not, there is a discretion to extend time.

62    Third, what was the date when the applicant was aware or ought reasonably to have become aware of all of the three specified matters. Any discretion to extend time is confined to three years from that date. It is not until that state of knowledge is reached that time commences to run for the purposes of the discretion to extend time. For reasons already given, it may overlap with the limitation period itself or it may not commence until well after the expiry of the limitation period.

Principal contentions of the parties

63    For the applicants it was submitted that their causes of action accrued when they each became aware they had suffered a not insignificant injury, which was said to be when they were first diagnosed with the respective mental injuries that form the basis for their claims. Although the events giving rise to their claims occurred in March 2013, they submitted that it was not until diagnosis on 17 December 2015 (for Mr Mullaley) and 7 February 2014 (for Ms Mullaley) that they were aware of the significance of their respective injuries. The case was put on the basis that the second limb as to when the injuries were made manifest was not relevant. That submission must be taken to mean that the applicants' case was that the event first occurring was awareness of the significance of the injuries. Therefore, so it was submitted, that was the point in time when their actions in negligence accrued. On that basis, the limitation periods expired on 17 December 2018 and 7 February 2017 respectively. Further, it was submitted that the earliest that the applicants could reasonably have become aware that their injuries were attributable to the conduct of the police officers (and the identity of the police officers) was upon the release of a report by the Corruption and Crime Commission (CCC) into the relevant events (CCC Report). The CCC Report was published on 21 April 2016. Therefore, so it was submitted, as the Claim was made on 18March 2019 and an order could be made with effect from that date, there was a discretion to extend time.

64    Submissions for the applicants were advanced on the basis that they each knew the physical cause of the injury more than three years before the application to extend time. However, it is important to be specific as to what was meant by that submission. It was no more than a recognition that the applicants knew of the events that culminated in the death of the baby. I did not understand the submission to be an acceptance that the applicants also knew, more than three years before the application was commenced, each aspect of the conduct said to amount to negligence or that those actions were the cause of their own mental health injuries. The latter position is evident from the fact that the submissions for the applicants maintained that they did not know that the harm to them was attributable to the conduct of a person until the point when they were diagnosed.

65    To illustrate the relevant distinctions, a parent may witness injury to their child by a falling tree limb. It is to be expected that the parent will suffer mental shock and be aware that the shock was caused by witnessing the event that caused the harm to the child. However, the person may not be aware of facts that could attribute that injury to a person. For example, they may not know that local government employees were aware of the risk to picnickers at the location and had failed to schedule the regular inspection of the trees in the area. It is when they make that connection that they become aware that their injuries are attributable to the conduct of a person, namely the local government employees. Also, the parent may not be aware that the mental shock was a not insignificant injury until it manifests in that way or is diagnosed as such at a later time and until that occurs they would not be aware of the physical cause of their not insignificant injury (and therefore not be in a position to attribute that cause to the conduct of a person).

66    The submissions advanced for the applicants were to the effect that they were aware of the part of their claim that it was the conduct of the police that caused the death of the baby, but they did not know the particular respects in which the conduct of the police was something for which they may be legally responsible if it resulted in mental harm to them. Further, they did not know that they had suffered serious mental harm until they were diagnosed.

67    For reasons already given, s 39 is not concerned with when the applicants were aware of each of the factual matters relied upon to found their claim at law, nor with when they knew they had a legal claim. Rather, the concept of attribution as used in s 39 is concerned with a question of fact, namely the state of mind of the applicants and, in particular, when the applicants were aware or ought reasonably have become aware that police officers were causally responsible in the sense of being factually to blame for their not insignificant injuries.

68    Therefore, the main area of dispute between the parties concerned when the applicants were aware or ought reasonably to have become aware that their injuries were attributable to the conduct of the police officers involved.

69    The separate issue as to when the applicants became aware or ought reasonably to have become aware of the identity of the person to whom their injuries were attributable did not loom large. The proposition advanced for the State that the identity of the police officers would have been disclosed if inquiry had been made was not challenged by the applicants. In any event, the claim by the applicants is made only against the State of Western Australia on the basis that it is responsible for the actions of the police officers and therefore there is no real identity issue.

70    For the State, it was submitted that the applicants were actually aware at the time they were diagnosed that the mental injuries for which they were diagnosed (and that are the subject of their negligence claims) were attributable to the conduct of members of the police force (and therefore the State). As that point in time was before the expiry of the three year time limit, when that time passed there was no discretion.

71    Alternatively, it was submitted for the State that the applicants were aware or ought reasonably to have become aware that their injuries were attributable to the members of the police force (and therefore the State) at the time of the events in March 2013, alternatively by 4 May 2013 (when the Aboriginal Legal Service made a complaint to the Corruption and Crime Commission on behalf of the applicants), alternatively in early October 2014 (when the applicants were interviewed for the purposes of an internal investigation by the police force), alternatively by 23 April 2015 at the latest (being the date when a meeting was held with Mr Mullaley and Ms Mullaley and members of their family to discuss the findings and outcome of an internal investigation conducted by the police force).

Evidence of Professor Newman

72    The applicants relied upon a report prepared by Professor Louise Newman. The report was based upon medical records and the affidavit evidence of Mr Mullaley and Ms Mullaley and brief telephone interviews with them. It asked for an opinion as to the likely date that each of Mr Mullaley and Ms Mullaley developed the first symptom, clinical sign or other manifestation of personal injury consistent with having sustained a not insignificant personal injury.

73    The report expressed the view that there was no clear documentation of preceding psychiatric diagnosis for Mr Mullaley or Ms Mullaley. Professor Newman was unable on the basis of the material to provide a definitive account of any preceding psychiatric disturbances. She expressed concern about the appropriateness of seeking a definitive answer to the question about the timing of psychiatric disability with respect to the traumatic event of the death of Ms Mullaley's child. In that regard, Prof Newman stated:

I do consider that the ongoing nature of these symptoms and the distress that these parties are obviously experiencing constitutes some form of lack of resolution of trauma and ongoing mental dysregulation.

However, in the context of a lack of a more definitive record of the historical nature of their initial state after the event it is not possible to definitively say at what point in time they developed ongoing symptoms of an unresolved nature as opposed to experiencing the immediate and normative grief and stress reaction.

It would commonly be held that a traumatic loss increases the overall risk of unresolved and ongoing complex trauma responses. In a less traumatic situation a normative grief and loss response would normally resolve in a 12 month period.

I conclude that clearly these symptoms are ongoing and causing significant suffering to both parties.

74    Therefore, in the expert opinion of Prof Newman, the available medical records do not enable a conclusion to be reached as to when the first manifestation of an unresolved and ongoing trauma response occurred. Necessarily implicit in that opinion is the view that there will be a normative grief and stress reaction but there may be a point where that reaction is not resolved. In the opinion of Prof Newman, this is what has occurred for Mr Mullaley and Ms Mullaley.

75    It follows that the medical records that are available to the Court on the application are insufficient to enable a person with the expertise of Prof Newman (let alone a reasonable person in the position of either of the applicants) to identify a particular manifestation that was consistent with psychiatric injury rather than the normative grief and stress reaction. Further, the limited interviews that were conducted by Prof Newman did not enable such a view to be formed retrospectively.

76    Therefore, it follows from the opinion of Prof Newman that it was only upon diagnosis that there could be said to be a manifestation of personal injury. Prior to diagnosis, the symptoms and treatments as recorded in the medical notes were consistent with a normative grief and stress reaction. Upon diagnosis by a person with expertise, that which might be seen as understandable and extended grief came to be identified as a symptom, sign or other manifestation of not insignificant personal injury. At that point, the addition of expertise meant that the symptoms and signs came to be seen, for the first time, to be consistent with a not insignificant personal injury. For reasons already given, the fact that the matters that were understood upon diagnosis to be symptoms and signs of personal injury may have been ongoing for some time prior to diagnosis did not mean that there was an earlier manifestation of personal injury. It was only when those matters were viewed through the eyes of a person with the requisite expertise that they would be so understood. Until then, they could be seen by a reasonable person as a normative grief and stress reaction by a person who had not suffered any psychiatric injury.

Alleged actual awareness before expiry of limitation period

77    The first claim made by the State is that the applicants have not shown that at the time of expiry of the limitation period, they were not aware of all of the matters stated in s 39(3). As a result, so it was submitted, there was no discretion to extend time at all.

78    The applicants' position is that the limitation period expired three years after they were diagnosed. They contend that the time of diagnosis was when they first became aware that they had sustained a not insignificant personal injury. Otherwise, there had been no prior manifestation because the symptoms they were each experiencing could not be distinguished (and were not distinguished by them) from the normative grief and stress reaction to be expected from the death of Ms Mullaley's baby in highly distressing circumstances.

79    It is first necessary to consider when the alleged causes of action in negligence accrued.

Commencement of the limitation period

80    As stated above, until the symptom, sign or other manifestation of personal injury is of such a kind that it may be seen as being consistent with a not insignificant personal injury having been sustained, the requirement in s 55(1)(b) for commencement of an action has not been met. The thrust of the opinion of Prof Newman is that it was not possible from the medical records to identify a point prior to diagnosis at which there was such a manifestation in the case of the applicants that might be differentiated from the usual grieving process.

81    Submissions were advanced for the State to the effect that there were records that demonstrated an earlier manifestation of psychiatric injury of the kind the subject of the Claim. However, the State led no evidence to contradict the report of Prof Newman. Nor did the submissions for the State rise to identifying material that recorded the manifestation of psychiatric injury, as distinct from grief, prior to the points of diagnosis relied upon by the applicants as the commencement of the limitation period. For example, the record by Dr Chapman (a psychiatrist) on 7 August 2013 was that Mr Mullaley was 'in Bereavement' and records relating to Ms Mullaley were to the effect that she sought treatment in relation to poor sleeping and counselling. Evidence of this kind was equivocal as to the manifestation of psychiatric injury being the nature of the personal injury the subject of the Claim.

82    Further, the question was not when the applicants first became aware of, or manifested, their conditions of anxiety and depression (in the case of Mr Mullaley) and PTSD (in the case of Ms Mullaley), but rather when those matters might be seen as a not insignificant personal injury. Until the issues with their mental health were viewed as being connected with external events that might cause them to be described as an injury, the symptoms and signs did not manifest such an injury and they were not aware that they had sustained such an injury. As I have noted, the issue was not when they first experienced the relevant symptoms and signs or knew of their respective mental health conditions, but rather when those matters manifested personal injury or led to actual awareness of such an injury. On the evidence that point did not occur until they were diagnosed as having mental health issues that rose above grief at the loss of the baby.

83    Therefore, I do not accept the submission for the State that there was a manifestation of personal injury consistent with having suffered a not insignificant personal injury at any earlier point in time than 17 December 2015 and 7 February 2014 as to Mr Mullaley and Ms Mullaley respectively. On the evidence, it was at that point that there was a diagnosis consistent with injury rather than their grief at the loss of the baby. Earlier references in the medical records to anxiety, depression and mental health issues should be read in that light.

84    The consequence is that there is a discretion to extend time if by three years after those dates, each of Mr Mullaley and Ms Mullaley were not aware of at least one of the matters stated s 39(3). As I have already noted, the principal submission advanced for the applicants as to s 39(3) was that they were not aware at that time that their injury was attributable to the conduct of a person.

Mr Mullaley's evidence

85    The evidence of Mr Mullaley was to the effect that prior to the CCC Report although he had complaints about police behaviour, he was not aware that the police should have conducted themselves in a different manner or that any policies or procedures were not followed correctly by them. He was upset about how he and the baby had been treated. He also described how a complaint was made by the Aboriginal Legal Service (ALS) on behalf of the family. It was dated 14 May 2013.

86    The complaint letter was addressed to the CCC and was quite long and detailed. It was said to be written on the instructions of the family. It referred to an interview having been conducted with Mr Mullaley. I accept that it was sent with his authority. It detailed the relevant events on 19 and 20 March 2013. It did so in terms that were critical of the behaviour of the police officers involved. It concluded with a section headed 'Concerns about Police Inaction Leading to the Death of Baby …'. It claimed that if the police had acted in a timely fashion the baby's death could have been avoided.

87    However, the letter made no complaint about mental harm to the applicants. It did not allege that they had suffered injury by reason of the conduct of police officers or that they were responsible in some way for any such injury.

88    Mr Mullaley recounted a meeting where the CCC Report was read out. The meeting was said to have occurred after the CCC Report was released, being 21 April 2016. Mr Mullaley said that two officers from the CCC were present as well as the main detective sergeant who had worked on the case against Mr Bell. It appears that Mr Mullaley was present with other family members and their lawyer. His evidence as to the meeting was as follows:

I recall not being happy but do not believe any legal advice or legal options being given to us after this reading. After the report was released, with the admissions that they could have done better; I thought 'oh well' that is what happens and I didn't know there was anything further we could do.

I had always thought something was not 'right' and the CCC report made it real that the police did not do the right thing regarding the search for baby. However, even then the CCC did not comment about the way the police acted when they were arresting [Ms Mullaley], and the first time I thought about the Police Officers' responsibilities to baby, when they were arresting [Ms Mullaley], was when [the applicants' lawyer] raised it with me in early 2019.

89    It can be seen that the evidence is not directed to the making of any connection between the mental health injury to Mr Mullaley and the conduct of the police officers. His affidavit does refer to being upset about how the police officers treated him.

90    The affidavit refers to a lack of knowledge on the part of Mr Mullaley that the police had a duty of care to his family and he was not told of that until early 2019 when meeting with his lawyer. However, as I have noted, the issue is not when Mr Mullaley knew that he might have a legal claim or even knew of all the facts that might be relied upon when such a claim was advanced. Rather, the relevant inquiry concerns when Mr Mullaley was actually aware that his mental health condition was attributable to the conduct of a person.

91    On the evidence advanced by Mr Mullaley, his actual state of awareness at the time the limitation period expired was that he had suffered a mental health condition, he believed the police officers had done the wrong thing but that their conduct was something that he could not do anything about. This state of awareness does not amount to actually attributing his mental health injury to the conduct of any person. It does not involve making an actual connection between the harm he has suffered and the conduct of the police officers involved.

92    Mr Mullaley separately recounted the course of his treatment for anxiety, sleeplessness, sadness and stress. In the course of doing so he said: 'I didn't know you could get sick from experiencing grief. I still don't fully understand it today; that anxiety can be a mental health condition'. Expressed in those terms the evidence of Mr Mullaley as to his actual state of awareness falls short of connecting his mental condition to conduct of the police officers as distinct from grief from the loss of his daughter's baby.

Ms Mullaley's evidence

93    As to Ms Mullaley, the evidence of Prof Newman was to effect that she exhibited high levels of distress and agitation when asked to talk about issues concerned with events the subject of these proceedings. She said that she was unable to talk about the issues and that she was highly distressed. This was a state that had not changed and Ms Mullaley felt that she had limited memory of the timing of her symptoms. She declined to elaborate when questioned directly by Prof Newman.

94    Otherwise, the evidence of Ms Mullaley was deposed to on information and belief by a solicitor acting on behalf of Ms Mullaley. The affidavit deposed to at least ten conversations by the solicitor with Ms Mullaley and produced a witness statement being the evidence that the solicitor expected Ms Mullaley would give based upon her instructions. It also deposed to a belief that the information provided was true and correct. It was submitted for the State that the evidence was problematic and the Court should proceed with caution in relation to its contents and the weight to be afforded the statements attributed to Ms Mullaley.

95    At the hearing, I received the affidavit of the solicitor without objection. Hearsay evidence may be received on an application of the present kind: Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 at [55] (McColl JA, Meagher and Barrett JJA agreeing). An explanation was given as to why the evidence was provided in hearsay form. In the absence of any submission as to why any particular aspect of the evidence should be treated with caution or was more appropriately given by Ms Mullaley directly, I see no reason to discount the evidence for the purposes of the present application.

96    The witness statement of Ms Mullaley stated that she had been diagnosed with PTSD. It briefly described the history of her mental health since 2013. It referred to her drug taking and binge drinking and her suicidal thoughts. The medical notes for Ms Mullaley refer to grief counselling and her sadness when thinking about the murder of her baby. The medical notes for the time of her diagnosis with PTSD of moderate severity describe the events of March 2013 in very brief detail. The only indication of any attribution of her condition to the police officers involved is the following statement: 'It seems that there were issues between her and the police, there may have been delays in the police initiating a search for her son'. If it were the case that Ms Mullaley herself attributed her mental health conditions to the conduct of the police officers it would be expected that she would have reported that view to the consultant psychiatrist who prepared the report and that in accordance with normal practice those matters would have been recorded in the notes. The absence of such records counts strongly against Ms Mullaley being aware at that time of her injury being attributable to the conduct of another person.

97    Ms Mullaley's statement also referred to the letter of complaint sent by ALS. It stated that she was 'really angry at the police from day one, but I had no idea I could make a claim against them. I did not know the system nor that their acts could have constituted a breach of their duty. No one told me we had any rights. Not one person said you can sue the police'.

98    Although this evidence is expressed in terms of rights to bring a claim, it is to the effect that although Ms Mullaley was angry with the police she did not actually conclude that liability could be attributed to the police officers. Further, there is no suggestion from her statement that she was actually aware that her mental health issues might be attributed to the police officers in some way.

99    The evidence of Prof Newman and the contents of the report of the consultant psychiatrist is to the effect that Ms Mullaley is not able to discuss the events that occurred in March 2013. They are described as distressing and 'clearly raw'. This evidence indicates a mental state which means that Ms Mullaley was unable to engage with questions about her awareness of what might be the cause of her mental health condition. In those circumstances, in the language of Prof Newman it is 'rather inappropriate' to be seeking from Ms Mullaley herself evidence as to whether she actually attributed her mental health condition to the conduct of any person.

The evidence of Mr Smith

100    Mr Smith, a police inspector, gave evidence about the course of the investigation of the conduct of the police officers. He said that as a result of the letter of complaint from the ALS an investigation was commenced by the Internal Affairs Unit within the police force. He produced recordings of interviews conducted with each of Mr Mullaley and Ms Mullaley as part of that process (which were transcribed for the purposes of submissions by the State). He said that at the conclusion of the investigation he attended a meeting with a solicitor from the ALS, Mr Mullaley and Ms Mullaley and people supporting them. The date of the meeting is recorded on a running sheet for the investigation and it was held on 23 April 2015. He said the purpose of the meeting was to advise the family of the result of the internal investigation. He recounted his recollection of what occurred at the meeting. It included a recollection that those present at the meeting were told that the investigation had concluded that officers had acted appropriately when told that Mr Bell had taken the baby. It also included the following:

Two officers had been found to have failed to conduct a proper and professional investigation into the report made by [Mr Mullaley] that [the baby] had been taken by Bell and in doing so had failed to comply with police policies. One officer, a Sergeant, was served with a Managerial Notice for failure.

It was explained to those present that the purpose of a Managerial Notice is to demonstrate to a subject officer the seriousness of their unprofessional conduct and consequences that may follow, should this conduct re-occur. A Managerial Notice is not a penalty, but rather, a genuine attempt by all parties to encourage and promote professional conduct into the future and to positively modify the behaviour and conduct of a subject officer.

There was insufficient evidence to sustain a finding that an officer had told [Mr Mullaley] to '… not play the black card ...' Rather, the officer had told [Mr Mullaley] ' ... not to play the racist card' when he had suggested police would have acted differently if [the baby] was white.

There was no evidence to sustain a finding that officers had harassed members of the Mullaley family. Inquiries had in fact revealed the officers were attending a complaint nearby.

Officers had acted appropriately in not preferring charges against Bell for assaulting [Ms Mullaley] in the first instance as it was reasonable for them to place a higher priority on the gathering of evidence and associated investigation of the offences committed upon [the baby].

No officer neglected their duty by failing to investigate claims that Bell had threatened to harm [the baby]. At that time the urgency of the search for [the baby] outweighed any criminal investigation.

101    On the basis of the evidence of Mr Smith, it was submitted for the State that Mr Mullaley's recollection that the first time he was told about admissions that the police officers could have done better was on 23 April 2015 and not after the CCC Report was published. It was submitted that it was plain that Mr Mullaley had confused a meeting about the report by the internal affairs unit with the publication of the report by the CCC. The significance of those matters was said to be that the applicants were aware that there was some acceptance of responsibility by police officers by as early as April 2015 which was well before the end of the limitation period.

102    However, on the evidence of Mr Smith, the nature of the matters reported to Mr Mullaley and Ms Mullaley in April 2015 did not accept that police officers were to blame for causing mental harm or anguish to the applicants. Quite the contrary. It was to the effect that police officers had not done the wrong thing, save that two officers had been found not to follow proper procedures and steps had been taken to encourage and promote their professional conduct in the future. The communication of those matters did not lead to the conclusion by inference that the applicants knew that their mental health conditions were injuries attributable to conduct of a person.

103    Even if it be accepted that the meeting referred to by Mr Mullaley did occur in April 2015 or that there was a separate meeting at that time in the terms recounted by Mr Smith, it does not rise to establishing actual awareness on the part of the applicants at the time of the meeting that their mental health conditions were attributable to the conduct of the police officers (and thereby, the State).

Interviews conducted by the internal affairs unit

104    As I have noted, Mr Smith's evidence included recordings of interviews conducted with each of Mr Mullaley and Ms Mullaley as part of the police internal investigation. Transcriptions were provided. The State relied upon many passages in the transcriptions of those interviews where complaints were made about what the police did and blame was directed at the police officers for the death of the baby. These matters are stated quite explicitly and repeatedly.

105    However, attributing the death of Ms Mullaley's baby to the conduct of the police officers is not the same as attributing their own mental health injuries to those officers. What the transcriptions show is that at least from the time of those interviews it was plain that Mr Mullaley and Ms Mullaley held the view that the police officers bore responsibility for the death of the baby. Those same views were reflected to some extent in the earlier letter of complaint prepared by the ALS. Therefore, it is clear that was an aspect of which the applicants were aware, at least from April 2015 and there is nothing to suggest that they formed a different view.

106    Further, as I have noted, the point was reached where they were each diagnosed with mental health injuries. Those injuries were associated with the events that led to the death of the baby.

107    The question is whether those two matters were put together by each of the applicants so that the physical cause of the mental health injuries was actually attributed by them to the conduct of the police officers. The nature of their evidence is to the effect that they did not know that they could bring a legal claim. They did not know there were particular responsibilities that the police officers had that might make them liable for the conduct. They were resigned to the fact that what the police officers had done was just the way things were and nothing could be done about that. As I have noted, the question is not whether they knew that they had a legal claim or the particular facts upon which that claim would be based. Rather, the question is whether they connected their injury with the conduct of the police officers in a way that identified them as being responsible for the harm they had suffered. Plainly, they attributed the death of the baby to the police officers. However, there is no direct evidence as to their state of mind as to when they became consciously aware that there was some form of responsibility on the part of the police officers for their mental health injuries.

108    On the other hand, there is no evidence as to the ability of the applicants to form a connection between their state of mental health and the actions of the police officers. The nature of their diagnosis would communicate that connection.

109    On the evidence as a whole, the proper inference is that by the time the limitation period expired, namely 17 December 2018 in the case of Mr Mullaley and 7 February 2017 in the case of Ms Mullaley, they each remained of the view that the police officers were responsible for the death of the baby and they were aware that they had suffered significant mental health injuries by reason of those events. Given the force with which views about the responsibilities of the police officers had been expressed by each of them and the actual awareness of their mental health injuries arising from those events that arose when they were diagnosed, in the absence of some explanation from the applicants, the necessary inference was that they were consciously aware that their injuries were attributable to the conduct of a person, namely the police officers.

110    On an application for an extension of time, the applicants had an obligation to prove the negative proposition that they were not aware that their mental health injuries were attributable to the conduct of the police officers by the expiry of the limitation period. On the evidence, that negative proposition has not been established and therefore there is no discretion to extend time.

Evidence as to paras (a) and (c) of s 39(3)

111    The evidence as to what was actually known to Mr Mullaley and Ms Mullaley at the expiry of the limitation period was to the effect that they did not know who the police officers were who were involved in the events of 19 and 20 March 2013. However, it is not enough to show a lack of actual knowledge. What must be shown is that the person was unable to establish the identity of the person to whom the prospective claimant was aware the injury was attributable. If it was the case that the applicants were aware that their mental health injuries were attributable to conduct of the police officers (rather than grief because of the death of the baby) then reasonable inquiry would have revealed their identity. So much is demonstrated by the affidavit of Mr Smith which deposed to the fact that if he had been asked to identify the officers involved he would have done so. It was accepted for the applicants that they were aware of the physical cause of their injury. That is to say, they knew in general terms of the conduct of the police officers. This is made evident by the terms of the letter of complaint sent by ALS.

Claims as to when the applicants ought reasonably have become aware

112    If (contrary to the finding I have made), there was a discretion to extend time, then it was for a period of up to three years from when the prospective claimant became aware or ought reasonably have become aware of the three matters specified in s 39(4). On that aspect, the submissions of the parties again focussed upon the question of attribution. I will deal briefly with the submissions advanced by the State to the effect that the applicants ought to have attributed their injuries to the police officers well before the time of publication of the CCC Report with the consequence that the period of any discretion has expired.

113    The first submission was that the applicants ought to have been aware that their injuries were attributable to a person when the events occurred in March 2013. The submission elides the applicants' knowledge of the events that caused the death of the baby with knowledge that their mental health injury was attributable to those events. For reasons I have given, the applicants were not aware until they were diagnosed that they had suffered a not insignificant injury that might be attributed to those events. There was no submission to the effect that they ought to have obtained that diagnosis at an earlier point in time. Therefore, it could not be said that the applicants ought to have known that their injury was attributable to the conduct of the police officers from the outset.

114    The same analysis applies to the second submission for the State which was to the effect that the applicants should have attributed their injuries to the conduct of a person when the letter of complaint was sent by ALS. That too occurred before they were diagnosed.

115    The third submission is that the applicants should have made the attribution at the time they gave their statements to the police internal affairs unit in October 2014. As I have noted, by that time (and earlier) the applicants certainly attributed the death of the baby to the conduct of the police officers. Ms Mullaley had been diagnosed with PTSD by then. Mr Mullaley was yet to be diagnosed with mental health issues of a kind that might be attributed to what was done by people (particularly police officers) at the time of the baby's death. By then, in the case of Ms Mullaley, someone in her position who had formed the views she held about the conduct of the police officers ought to have attributed her injury to the conduct of a person, namely the police officers. Even allowing for the medical evidence as to the difficulties faced by Ms Mullaley at that time, it could not be found on the evidence that a person in her position ought not have attributed her injury to the conduct of a person. In the case of Mr Mullaley, as he had not yet been diagnosed, it was not the case that he ought to have attributed his injury to the conduct of a person.

116    The fourth submission, was that the relevant attribution should have been made by the time of the interview which Mr Smith said occurred on 23 April 2015. There is nothing in the evidence as to what occurred at that meeting that meant that either of the applicants should, as a result, have then attributed their injury to the conduct of a person.

117    For the applicants it was submitted that they had limited information about the conduct of police officers until the time of the CCC Report. Further, the question whether the applicants ought reasonably to have become aware was a matter to be adjudged on the basis that the applicants were significantly affected by their injuries, they were not educated and they had limited legal assistance. Even allowing for these matters, from the time of their diagnosis, each of Mr Mullaley and Ms Mullaley ought to have been aware that, for the purposes of their claims, their mental health conditions were attributable to the police officers involved. The present proceedings were commenced more than three years after their diagnosis.

118    Therefore, even if s 39(3) was met when the limitation period expired, the time within which there was a discretion to extend time had itself expired by the time the present claims were commenced.

Conclusion

119    Limitation provisions often produce a conflict between the fairness and justice that is afforded by providing a clear limit beyond which liability for past conduct can no longer be pursued and the fairness and justice of allowing a claimant to be able to resort to the courts to establish a claim. The legislation has determined the manner in which those competing demands should be balanced. In the circumstances of this case, the discretion reserved by the Limitation Act to extend time does not arise. Therefore, the application for an extension of time should be dismissed on the basis that there is no discretion to extend time. I will make orders for submissions as to costs and for any outstanding issues in that regard to be dealt with on the papers.

I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.

Associate:

Dated:    13 January 2020