"A" bht "S" v State of NSW
[2011] NSWDC 54
•01 July 2011
District Court
New South Wales
Medium Neutral Citation: "A" bht "S" v State of NSW [2011] NSWDC 54 Hearing dates: 15, 16 & 23 June 2011 Decision date: 01 July 2011 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Non-publication orders are made with respect to the names and identification details of the plaintiff "A", his tutor "S", the solicitors "CSO 1", "CSO 2", "CSO 3", "S1" and "Dr A", "Dr B", "Dr C" and "Dr D";
2.Each of the motions filed by the defendant seeking to dismiss, or alternatively, to stay the plaintiff's proceedings, are dismissed;
3.The costs of the dismissed motions are to be costs in the cause;
4.The exhibits may be returned;
5.I will hear the parties before making case management directions;
6.Liberty to apply on 7 days notice if further orders are required;
7.I order that the document marked "MFI 3" be placed in a sealed envelope which is not to be opened except by, or at the order of a Judge of this court, or by a Judge of the Court of Appeal on a review of this order .
Catchwords: PRACTICE AND PROCEDURE - applications by defendant in each of two proceedings brought by plaintiff seeking damages for breach of duty of care - defendant seeking to either dismiss or permanently stay the plaintiff's proceedings pursuant to UCPR r 12.7 - claim of prejudice due to effluxion of time resulting in a claimed inability to defend the proceedings - death of a witness from natural causes, unwillingness of four expert witnesses to give evidence on damages issues due to alleged threats by plaintiff - substantial delays occurring in the litigation before recent appointment of a tutor - whether the relief sought is justified in the circumstances - whether names of judicial officer and counsel should be the subject of non-publication orders - requirements of open justice - whether non-publication order relating to plaintiff and expert witnesses in the plaintiff's case is justified Legislation Cited: Civil Liability Act 2002, s 5D
Civil Procedure Act 2005, ss 56, 57, 58, 72
Crown Proceedings Act 1988, s 5
Federal Court of Australia Act 1976, s 50
Mental Health Act 1990, s 29
Mental Health (Forensic Provisions) Act 1990
Protected Estates Act 1983
Uniform Civil Procedure Rules 2005, r 12.7Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Australian Broadcasting Commission v Parish (1980) 29 ALR 228
Batistatos v RTA & Anor [2006] HCA 27; (2006) 226 CLR 256
Bi v Mourad [2010] NSWCA 17
Brisbane South Regional Health Authority v Taylor [1996] HCA 541, (1996) 186 CLR 541
C v R (1993) 67 A Crim R 562
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Dixon v Whisprun Pty Ltd [2001] NSWCA 344
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Grassby v R [1989] HCA 45; (1989) 168 CLR 1
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Herald & Weekly Times (2003) 130 FCR 435
Hogan v Australian Crime Commission [2010] HCA 21
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128
Hoser v Hartcher [1999] NSWSC 527
Hume v Council of the Kings School [2010] NSWSC 186
John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131
John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465
John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324
Lee v Keddie [2011] NSWCA 2
Mason v Demasi [2009] NSWCA 227
Mt Isa Mines v Pusey [1970] HCA 60; (1970) 125 CLR 383
Nominal Defendant v Saleh [2011] NSWCA 16
OV and OW v Members of the Board of Wesley Mission Council [2010] NSWCA 155
Pacanowski & Anor v Wakerman & Anor [2009] NSWCA 402
Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505
Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844
Pelechoswki v Registrar, Court of Appeal [1999] HCA 19; (1999) 198 CLR 435
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
R v Rogerson [1992] HCA 25; (1992) 174 CLR 268
RTA & Anor v Batistatos [2005] NSWCA 20
Reliance Financial Services v Griffiths [2010] NSWSC 1490
Richards v Cornford (No 3) [2010] NSWCA 134
Sali v SPC Ltd (1993) ALJR 841
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158Category: Interlocutory applications Parties: "A" bht "S" (Plaintiff)
State of NSW (Defendant)Representation: Mr M Rollinson (Plaintiff)
Mr M Windsor SC with Mr R Lee (Defendant)
Lexington Law Group Pty Ltd (Plaintiff)
Crown Solicitor (Defendant)
File Number(s): 1998/57017 2001/95166 Publication restriction: Orders have been made pursuant to s 72 of the Civil Procedure Act 2005 prohibiting the publication or disclosure of the names of the plaintiff, the tutor of the plaintiff and the witnesses who have been assigned litigation pseudonyms, including any information or detail from within the court file, or from the evidence in the proceedings, that either identifies, or tends to identify any of these persons.
Judgment
Table of Contents
| Interim non-publication order | [1] – [6] |
| Litigation pseudonyms | [7] |
| Final non-publication order | [8] – [47] |
| Plaintiff’s background and present circumstances | [48] – [50] |
| Notices of motion | [51] – [52] |
| The underlying cases | [53] – [57] |
| The issue – whether dismissal or stay justified | [58] – [61] |
| Procedural history | [62] – [69] |
| Evidence in support of the motions | [70] – [77] |
| Applicable legal principles | [78] – [93] |
| Submissions of the parties | [94] – [105] |
| Consideration | [106] – [249] |
| Legal capacity of the plaintiff | [108] – [115] |
| The legal aid issue | [116] – [118] |
| Analysis of medical and allied evidence | [119] – [171] |
| Claimed prejudice in establishing the facts | [172] – [183] |
| Non-application of Civil Liability Act 2002 | [184] – [185] |
| Plaintiff’s conduct / Defendant’s forensic decisions | [186] – [202] |
| Claim of prejudice due to death of witness | [203] – [206] |
| Claim of faded recollections of witnesses | [207] – [217] |
| Delay | [218] – [247] |
| Anticipated future want of due despatch | [248] – [249] |
| Conclusions | [250] – [264] |
| Disposition and costs | [265] – [268] |
| Orders | [269] |
Interim non-publication orders
At the commencement of the hearing of these motions, senior counsel appearing for the applicant / defendant, applied for an interim non-publication order pursuant to s 72 of the Civil Procedure Act 2005 [" CP Act "]. The proposed order sought to secure the non-publication and non-identification of the names of counsel, solicitors, deponents to affidavits, the authors of expert reports annexed or exhibited to affidavits, and also the name of the judicial officer allocated to hear these applications.
The stated basis of that interim application was a past history of threatening behaviour alleged to have been initiated by the plaintiff towards expert witnesses and legal practitioners retained by the defendant, and towards a Judge involved in previous interlocutory and case management hearings in these matters.
The particular nature of those threats is set out in greater detail at paragraphs [148] to [155] of these reasons.
That interim application was made in the absence of the respondent / plaintiff because he is in lawful custody, however, it was made in the presence of his legal representatives, and it was not opposed by his counsel. At that time there was no application for non-publication of the name of the plaintiff.
For the initial purposes of hearing the interim application, I was satisfied that there was prima facie justification for the making of the interim orders as sought. Accordingly, I acceded to the application for interim non-publication orders in the terms sought pending a full hearing and argument.
The factors that I considered to have weighed in favour of making the interim orders as sought were that it was appropriate to do so for the purpose of hearing that initial application, it was not opposed by counsel for the respondent / plaintiff, and it was in conformity with the procedure that had been adopted by other judges in past interlocutory applications where orders had been made of a like nature in the present proceedings. I also considered the interim orders were indicated because, on the face of the materials presented, it appeared to me that it was necessary to do so in order to secure the proper administration of justice at that initial stage of the hearing of the applications before the court: s 72 of the CP Act .
Interim litigation pseudonyms
Interim litigation pseudonyms were assigned to the persons identified by the names that are listed in MFI "3", and also with respect to "Dr E", who was subsequently mentioned in evidence and argument on the interim application. The identities of those persons whose names were the subject of the interim non-publication order were assigned the following interim pseudonyms:
(1) Judicial Officer - "DCJ5";
(2) Senior Counsel for the applicant / defendant - "Crown 1";
(3) Junior Counsel for the applicant / defendant - "Crown 2";
(4) Junior Counsel for the applicant / defendant - "Crown 3";
(5) Counsel for the respondent / plaintiff - "PL";
(6) Solicitor for the applicant / defendant - " CSO 1";
(7) Solicitor for the applicant / defendant - " CSO 2";
(8) Solicitor for the applicant / defendant - " CSO 3";
(9) Solicitor for the respondent / plaintiff - "S 1";
(10) Consultant psychiatrist - "Dr 1";
(11) Consultant psychiatrist - "Dr A";
(12) Consultant clinical psychologist - "Dr B";
(13) Consultant psychiatrist - "Dr C";
(14) Consultant psychiatrist - "Dr D";
(15) Consultant psychiatrist - "Dr E".
Final non-publication orders
Following the conclusion of submissions on 16 June 2011 these matters were re-listed on notice on 23 June 2011 for the purposes of further argument on the justification for the making of final non-publication orders having regard to the limited power of the court to make such orders, and having regard to the principles of open justice. In the paragraphs that follow I set out the relevant principles for the purpose of dealing with those arguments.
The express power of this court to make non-publication orders in civil cases is discretionary and is limited by the terms of s 72 of the CP Act , which provides:
" 72 Court may prohibit disclosure of information
The court may, by order, prohibit the publication or disclosure of any information tending to reveal the identity of:
(a) any party to proceedings, or
(b) any witness in proceedings,
if it is of the opinion that it is necessary to do so to secure the proper administration of justice in the proceedings."
Questions concerning the administration of justice are matters to be determined openly by the court in which the dispute between the parties arises and where the tribunal has a duty to act judicially: Hogan v Australian Crime Commission [2010] HCA 21 at [8], following R v Rogerson [1992] HCA 25; (1992) 174 CLR 268, per Mason CJ at [2].
The provisions of s 72 of the CP Act have a similar objective to s 50 of the Federal Court of Australia Act 1976 [" FCA Act "] in that both provisions require that the requirement of necessity be shown for the making of a non-publication order to secure the proper administration of justice in the case of the CP Act , and to prevent prejudice to the administration of justice in the case of the FCA Act . In my view there is no relevant difference between the objectives of these two legislative provisions for present purposes.
In the High Court's construction of s 50 it was observed that " necessary " was a strong word and in the context of the administration of justice, the consideration of whether non-publication orders under that section were necessary, the relevant and specific exercise was that of judicial power in open court: Hogan , at [30]. The same construction applies to s 72 of the CP Act .
Once matters of fact are introduced into evidence in open court the principles of open justice are engaged: Hogan at [41]. The need for consideration of the imposition of restraints on the disclosure of information given in evidence or related in argument only become relevant where disclosure would prejudice the proper exercise of the adjudicative function of the court. In this regard, the tender of evidence was noted to be a forensic decision, and the " price of such a decision may be the subsequent disclosure, as is often the case in litigation, of embarrassing publicity ": Hogan at [43], following Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 233: Herald & Weekly Times (2003) 130 FCR 435 at 444.
The applicant / defendant in these proceedings pointed to the fact that in the past, a Judge of this court had been threatened by the plaintiff at an earlier stage of the proceedings, and one of the counsel who had previously been briefed to represent the applicant / defendant at an earlier interlocutory hearing, namely "Crown 3", had been intimidated in circumstances where he felt compelled to return his brief. The applicant / defendant also pointed to evidence that one of its solicitors had felt compelled to seek and to successfully obtain an apprehended violence order against the plaintiff.
The matters identified by the applicant / defendant go beyond considerations of possibly embarrassing publicity, but rather go to the security of proceedings conducted in court in the course of administration of justice.
The applicant / defendant argued that the requirements of the principle of open justice must yield where the interests of justice are at stake as the open administration of justice serves the interests of society such that open justice is not an absolute end in itself: John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131 per Kirby P at p 141. In that case, Kirby P dissented from the majority. In the context cited, Kirby P was referring to circumstances where the very openness of court proceedings would destroy the attainment of justice in the particular case such that the rule of openness must be modified to suit the exigencies of the particular case.
It is beyond question that inferior courts of record are bound by the terms of the statutory jurisdiction conferred upon them, but there is an implied authority to uphold, protect and fulfil the judicial function by ensuring that justice is administered according to law and in an effective manner: John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 per McHugh JA at 476.
The exercise of an implied authority must be determined by questions of necessity, but ultimately, that exercise is limited by the jurisdictional parameters within which the court functions: Grassby v R [1989] HCA 45; (1989) 168 CLR 1, at pp 16-17. Questions of necessity are to be determined by considerations of reasonableness: Pelechoswki v Registrar , Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 at p 452.
Pseudonyms are commonly used and the reason for this is to protect witnesses and informants in proceedings in courts, and such procedures offer little in the way of interference with the open and proper administration of justice: C v R (1993) 67 A Crim R 562, per Hunt CJ at CL at p 564; OV and OW v Members of the Board of Wesley Mission Council [2010] NSWCA 155 at [79]; Hume v Council of the Kings School [2010] NSWSC 186 at [33].
Since this court has a limited statutory jurisdiction, with only limited powers to make non-publication orders of the kind that are sought, the test of necessity is required to be fulfilled before non-publication orders can be justified, and that test must be applied with strictness: John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324 per Spigelman CJ at [51]; (2004) 61 NSWLR 344.
Although the decision in John Fairfax Publications Pty Ltd v District Court of NSW concerned criminal proceedings, I see no relevant distinction in respect of civil proceedings. Where the potential exists for conflict to arise between the proposed exercise of limited statutory powers, whether express or implied, and the principle of open justice, the overriding requirement is that the latter should prevail.
In the construction of s 72 of the CP Act and in the context of the considerations cited in John Fairfax Publications Pty Ltd v District Court of NSW , there is a confluence which requires that a necessity be demonstrated for making the orders sought.
Guided by the foregoing principles, and for the reasons that follow, I have determined that the interim non-publication order made at the outset of the hearing of the applications should be rescinded in part in conformity with the interests of open justice.
The terms of s 72 require a strict reading. Such a reading confirms that this court does not have the power to order non-publication of the identities of persons who are neither parties, nor witnesses nor potential witnesses to the proceedings. The explicit power conferred by s 72 does not extend to a general implied power to prohibit the publication or the disclosure of the identities of the legal practitioners appearing for the parties, or the identity of the judicial officer allocated to hear the case. An order in those terms requires an implication of necessity.
It appears to me that in the case of legal practitioners, a just exception arises in respect of those legal practitioners who have given evidence in affidavit form, which necessarily brings them directly within the explicit ambit of s 72.
It also seems to me to be appropriate that protection from identification be afforded to persons who were engaged as potential expert witnesses, but who are no longer prepared to give expert evidence in the proceedings following actual or perceived threats having been made to them. Such persons are not compellable to give evidence once they have withdrawn their consent for the use of their expert reports as evidence in the proceedings. In such circumstances, it is only just that their names be withheld from publication in respect of evidence given at an interlocutory stage which refers to them by name. The apparent necessity for that order is that these persons are no longer involved in the cases and the apprehensions over their security needs to be respected especially since they will not feature in the evidence at a trial. Accordingly, I am satisfied that the interests of justice require that in these proceedings, the names of witnesses "Dr A", "Dr B", "Dr C" and "Dr D" should be withheld from publication.
In contrast, on a consideration of the respective positions of "Dr 1" and "Dr E", I cannot see a proper basis that can be implied from within the terms of s 72 to make an order prohibiting the publication of their names where their reports have been tendered in evidence in these applications and on issues to be decided: Hogan , at [43]. There is no evidence of a direct threat having been made to these witnesses. Therefore, in my view no necessity has been established for the making of a non-publication order in relation to their names.
Given that the plaintiff must rely upon the opinions of these two experts for his case to succeed, it is difficult to envisage a relevant implied threat to those witnesses so as to justify the making of a non-publication order in respect of their names and their identities. Since each of those experts have examined the plaintiff with his concurrence and at the request of his solicitors, and since "Dr E" has seen the plaintiff on a number of occasions over time including for treatment, it must be assumed that the plaintiff most probably knows of the respective identities of these two experts. In this regard, I must observe the principle that a court should not make orders that are futile.
The applicant / defendant also sought to include in the category of exceptions, the identity of "PL", namely counsel for the respondent / plaintiff. Although that course was not opposed by "PL", I consider that it would not be reasonable or realistic to make a non-publication order in his case. It would appear to be somewhat unrealistic that the names of the plaintiff's legal representatives, other than the one whose evidence was read in these applications, be the subject of a non-publication order. This is especially so in circumstances where the plaintiff must ordinarily be taken to know, and is entitled to know, which firm of solicitors and which counsel acts for him in these proceedings, albeit that those representatives appear to have been retained by the tutor.
As to the positions of a judge and of counsel, in my view, the making of any order for the non-publication of the identities of the judicial officer assigned to hear the case and counsel retained to appear for the parties would be in conflict with the requirements of open justice. The principles of open justice require that the parties in the proceedings, and the public, have a direct interest in knowing such matters.
Open justice must mean justice administered in open court and in public view, where evidence is tendered, where arguments are presented and where accountable decisions are openly made on the issues to be determined. Any departure from those principles must be based on good reasons founded upon an actual necessity: s 72; Hogan at [30].
In my view, it is insufficient to say, as was submitted, that the de-identification of the judicial officer and counsel would not prevent or hinder the adjudicative process, including the accountability of that process on appeal if the need arose. In my view, the complete answer to that submission is that first, the public generally, and the plaintiff in particular, has a right to know which counsel appears in, and which judge decides, these particular cases, and secondly, the test of necessity still needs to be fulfilled as a pre-condition.
From the court's perspective, and the perspective of s 72 of the CP Act , the administration of justice by a court necessarily occurs in open court and involves the receipt of evidence and submissions from the parties, followed by an adjudication on the issues that are required to be decided.
On the very specific issue of the argued necessity for making the orders sought, it must be assumed that the court is a secure environment in which justice is delivered on the issues between the parties. Regard must be had to the available legal mechanisms, including sanctions, for appropriately dealing with threats to the proper administration of justice. It must be assumed that the court is a physically secure place for litigation to be properly conducted. Courts have security arrangements in place to ensure that this is so.
In my view, it must be assumed that questions of apprehension of potential breaches of the security of the court, and apprehensions over threats to the safety of those who constitute the court, the officers of the court, parties and witnesses, are addressed by the deterrent provisions of the criminal law, and by the general law of contempt in the event of an actual breach of security. Otherwise, courts could not effectively function.
In my view, in these present applications, it is inappropriate to draw upon the events described at paragraphs [148] to [155] and paragraphs [191] to [196] of these reasons, where those events have occurred more than 6 years ago, without evidence of recent repetition or the re-iteration of the threats, and to use those past occurrences as a justification for now arguing that the non-publication orders now sought are " necessary ".
The arguments advanced by the defendant in these applications are based on past apprehensions. There is no evidence of a current threat to the administration of justice that makes it necessary to suppress the identification of counsel and the judicial officer hearing these applications. If these past apprehensions were to reasonably arise again in the course of preparation of this litigation for trial, and were to prove to be current, the potential sanctions afforded by the criminal law and the provisions of the Mental Health (Forensic Provisions) Act 1990 are available as the proper mechanisms for dealing with such matters. I do not accept that the evidence adduced in these applications has demonstrated necessity for the full extent of the non-publication orders sought by the applicant / defendant.
Accordingly, and in conformity with the preceding reasons, I therefore rescind in part the interim order I made at the outset of the hearing insofar as that order related to the litigation pseudonyms numbered (1), (2), (3), (4), (5), (10) and (15) as set out in paragraph [7] of these reasons.
I confirm as final, the remaining part of the interim non-publication order. The allocation of litigation pseudonyms numbered (6), (7), (8), (9), (11), (12), (13) and (14) as set out in paragraph [7] of these reasons is confirmed, and I make a final order in respect of those persons, prohibiting the publication or disclosure of any information tending to reveal the identifies of the persons described in the evidence by those pseudonyms.
I make that order because it appears to me to be necessary that I do so in order to secure the proper administration of justice in each of these proceedings in order to protect witnesses or potential witnesses appearing in the proceedings, from possible harm of the kind which has been threatened by the plaintiff in the past: s 72 of the CP Act .
The effect of that order is that in these reasons, whenever "Dr 1" and "Dr E" are referred to in evidence and argument, I shall refer to them by name.
In addition to the terms of the abovementioned non-publication order, I make a further order prohibiting the publication of the name of the plaintiff or any information that might tend to identify him. I make that order because I consider that it is appropriate to do so in the interests of the proper administration of justice between the parties in these proceedings: s 72 of the CP Act .
My reasons for making that further order concerning the non-identification of the plaintiff are that first, the events concerning the first filed proceedings occurred when the plaintiff was a minor, and the litigation involved matters of fact of a sexual nature where the plaintiff was the claimed victim of a series of alleged sexual assaults whilst in the care of school authorities. Secondly, the plaintiff is described in the medical and allied evidence as a person with significant psychological problems. It appears to me that since the plaintiff is a person who lacks legal capacity, it would be unjust to him to have the details of such matters published in the public domain so that he would be identified and not just embarrassed, but most likely humiliated by them.
In my view this is a likely consequence if a non-publication order in respect of his name and identity was not made, especially so given the nature of his psychological problems as is described in the medical and allied evidence tendered in these applications. The necessity for making the non-publication order with respect to the plaintiff is that he should not feel constrained in the giving of his evidence of such matters by reason of possible public identification. That is a matter that is central to the administration of justice in these cases. The plaintiff's legal incapacity also distinguishes his cases from the position identified in the decision in Hogan at [43].
During the course of argument on 23 June 2011, counsel for the respective parties raised no objection to the proposed order that the name of the plaintiff be withheld from publication, and ultimately, counsel for the respondent / plaintiff supported the making of an order in those terms. Having satisfied myself that such an order is necessary, I have therefore assigned to the plaintiff the litigation pseudonym "A", and consistent with that order, I assign the plaintiff's tutor the litigation pseudonym "S".
Before leaving the issue of non-publication orders it should be noted that the non-publication orders I have made in these motions do not in any way alter prior non-publication orders that have been made in these proceedings concerning judicial officers and counsel, and those orders continue to have effect. The non-publication orders I have made in these motions do not and cannot bind any other judge when considering whether or not there is a need to make such orders or variations of them, on the future listings of these proceedings, whether those listings are for the consideration of any further interlocutory or case management matters that may arise on such occasions, or at a final hearing.
To give effect to the orders I have made, I make the further order that the document marked "MFI 3" and which identifies "Dr A", "Dr B", "Dr C", "Dr D", "CSO 1", "CSO 2", "CSO 3" and "S1", be placed in the court files in a sealed envelope which is not to be opened except by, or at the order of a Judge of this Court, or a Judge of the Court of Appeal on any review of this order.
Plaintiff's background and present circumstances
The plaintiff is now aged 34 years. He is presently being held on remand in lawful custody in gaol awaiting a hearing of pending charges that are unnecessary to recount in these reasons, especially having regard to the plaintiff's entitlement to the benefit of the presumption of innocence in respect of those charges, notwithstanding that there has been a refusal of a grant of bail.
In this litigation there has been a history of difficulty and a lack of success in arranging for the entity formerly known as the Protective Commission of NSW to assume the role of the plaintiff's tutor in the context of the plaintiff's legal incapacity. This has led to the plaintiff's proceedings being stayed by order of this court since 23 June 2004. Recently, and after very lengthy procedural delays, on 28 January 2011, "S", a longstanding acquaintance of the plaintiff, has undertaken the role of tutor for the plaintiff.
The plaintiff has had an unfortunate background of difficulty during his school years. The various expert medical and allied reports annexed to the affidavit evidence suggests that the plaintiff suffers from a number of psychological disorders, the nature, extent and causes of which, are said to be in substantial contention in these proceedings. That expert evidence will be necessarily analysed in the course of my consideration of the issues calling for decision in these motions.
Notices of Motion
There are two notices of motion filed on 23 April 2010 in each of the two separate present proceedings between the parties. Each case involves the respondent "A" as the plaintiff, and the applicant, the State of New South Wales, as defendant. In each of the motions filed, the applicant / defendant seeks the following orders:
"(1) The proceedings numbered 1998/57017 and 2010/95166 be dismissed generally pursuant to Part 12, Rule 12.7 of the Uniform Civil Procedure Rules 2005 or, alternatively, permanently stayed;
(2) The plaintiff pay the defendant's costs of this motion;
(3) The plaintiff pay the defendant's costs of the proceedings;
(4) Such further or other order as the Court may deem fit."
These motions were originally returnable on 14 May 2010 and since then they have been successively adjourned during case management hearings and mentions between that date and the commencement of the hearing on 15 June 2011.
The underlying cases
In the proceedings originally numbered 3245 of 1998, which were filed on 7 May 1998, and now numbered 1998/57017, the plaintiff claims damages in respect of repeated sexual and other abuse that he claims had been perpetrated upon him during the period 1989 to 1991 by fellow students at Glenfield Park School, a government-run special educational facility. It is alleged that such conduct occurred in circumstances that amounted to breach of the duty of care that was owed to the plaintiff by officers of the Department of Education, who assumed a parental duty towards the plaintiff, and in respect of whose acts or omissions the defendant is vicariously liable. [" the Education claim "].
In the proceedings originally numbered 14065 of 2001, which were filed on 12 December 2001, and now numbered 2001/95166, the plaintiff claims damages in respect of an alleged aggravated sexual assault perpetrated upon him in 1999 by a fellow prison inmate whilst the plaintiff was lawfully incarcerated in his cell, and whilst he was in the care of the staff of the Corrective Services Commission of NSW. It is alleged that such conduct occurred in circumstances that amounted to breach of the duty of care that was owed to the plaintiff by officers of the Department of Corrective Services, and in respect of whose acts or omissions the defendant is vicariously liable. [" the DCS claim "].
It is clear from the evidence tendered on these applications, that in the past, and over a considerable period of time, the plaintiff has harboured significant grievances about the events giving rise to the two claims which are the subject of the proceedings. The tendered material also suggests it is highly probable that the plaintiff's grievances about the events giving rise to the litigation, and about the litigation itself, continue to the present time, however it is not necessary for me to arrive at a conclusive finding on that issue for the purposes of determining the issues that arise for decision in these motions.
For the purposes of these applications, it is not necessary for me to refer to the detail of the pleadings filed by the plaintiff, or to consider the merits of the underlying cases, other than to observe that the pleadings filed in each of the two proceedings raise allegations that can be properly construed to identify appropriately framed causes of action that are permitted by law. This was conceded in the course of submissions by senior counsel for the defendant.
In each of the proceedings, the State of New South Wales has also acknowledged that a relevant and non-delegable duty of care was owed to the plaintiff. In each case, the defendant has also acknowledged that it has been correctly sued as the responsible entity, pursuant to s 5 of the Crown Proceedings Act 1988.
The issue - whether past delays justify dismissal or permanent stay
The defendant has brought these motions seeking to either dismiss, or to permanently stay, the respective proceedings brought by the plaintiff, arguing that accumulated delays have been incurred in the proceedings to date, which has resulted in irremediable prejudice to the defendant.
This is claimed to have occurred as a result of the co-extensive conduct of the plaintiff in the nature of pursuing threatening conduct to medical experts, legal practitioners and a judicial officer, with the result that the defendant has made the forensic decision not to seek to obtain further expert medical or allied evidence, or to even rely on such expert medical or allied evidence as is presently in its possession. The defendant claims that significant, material or manifest prejudice has resulted from a claimed presumptive prejudice.
The issue calling for decision is whether the historical circumstances and events surrounding these cases justify dismissal of the plaintiff's proceedings, or an order that the proceedings be permanently stayed because of a claimed want of due despatch in pursuing the proceedings to date.
To justify an order for a permanent stay, the defendant must establish that on the available material, it is unlikely that a fair trial could be achieved on the issues between the parties that would ultimately call for decision.
Procedural history
It is relevant that I set out something of the lengthy and complicated procedural history and chronology of the respective proceedings, before moving to a consideration of the merits of the issues calling for decision.
It is important to observe at the outset, that in each case, the plaintiff's proceedings were commenced within the required time, albeit towards the end of the respective limitation periods. Given that these applications do not involve limitation or extension of time issues, in my view, these claims fall into a separate category and there can be no relevant criticism or prejudice that arises from the circumstances of the timing of commencement of the proceedings: Brisbane South Regional Health Authority v Taylor [1996] HCA 541, (1996) 186 CLR 541, per McHugh J at p 555.2.
In the Education claim made in the first filed proceedings, which were filed on 7 May 1998, an examination of the court file reveals some 19 occasions on which the proceedings were listed for interlocutory or case management issues between 18 November 1998 and 6 August 2002 when the further case management of the proceedings became linked with the DCS claim. For completeness, the specific occasions on which the Education claim was case managed are listed in Appendix I to these reasons.
In the DCS claim made in respect of the second filed proceedings, which were filed on 12 December 2001, a similar examination of the court file reveals some 40 occasions on which the proceedings were listed for interlocutory or case management issues between 20 June 2002 and 5 April 2011. For completeness, those specific occasions are listed in Appendix II to these reasons.
Without intending to oversimplify the significance of the cumulative importance of those numerous listings outlined in Appendix I and Appendix II , and which are also referred to in the affidavit evidence, and in respect of which the details of those listings speak for themselves, the substantive effect of those listings has been that the plaintiff's proceedings have been stayed since 23 June 2004. From that time until now, considerable delay has obviously resulted from the non-progress of the proceedings.
In approaching the determination of these motions I have had regard to the detailed events embodied within Appendix I and Appendix II . Without diminishing the relative importance of the entire series of events described in the affidavit evidence or in the procedural notations on the court files, for the purpose of assessing the significance of cumulative delays in the proceedings, I have extracted the following shortened chronology of salient events from those more detailed sources. It should be observed that some of the dates set out in the chronology at paragraph 7 of the affidavit of "CSO 3" are not entirely reflected in the notations in the court files. I am unable to fully reconcile these, but for the purposes of these applications it is not necessary that I do so, as a broad overview of the course the litigation has taken, provides a sufficient perspective to deal with the issues to be decided.
The shortened chronology of relevant events is as follows:
1989-1991
Alleged sexual assaults at Glenfield Park School giving rise to Education claim, when plaintiff is aged 12 - 14 years.
11.05.1995
Plaintiff reached age of majority.
07.05.1998
Filing of Education proceedings.
1999
Alleged sexual assault in gaol giving rise to DCS claim.
14.02.2001
Vacation of hearing date fixed for hearing of Education claim which was scheduled to commence on 12.03.2001. Hearing vacated because of the stated need to seek the appointment of Protective Commission as tutor.
12.12.2001
Filing of DCS proceedings.
08.05.2002
Financial Management order made by Guardianship Tribunal under Protected Estates Act 1983. Plaintiff was deemed incapable of managing his own affairs. Management of the plaintiff's affairs was committed in the care of the Protective Commission of NSW.
24.06.2002
Self-represented plaintiff unsuccessfully sought the allocation of a hearing date for his cases. The List Judge raised concern over need to involve Protective Commission in the proceedings. Order made for the Protective Commission to file a notice of consent to act as tutor. That document was never filed because of concerns by Protective Commission over funding of the litigation.
18.09.2003
Orders made separating the hearing of the issues of liability and quantum.
08.03.2004
Scheduled hearing of defendant's application for a permanent stay of proceedings. (That hearing did not proceed as the hearing date for that application was vacated on 05.03.2004)
23.06.2004
Defendant secured an order for a stay in respect of both sets of proceedings pending the appointment of a tutor.
20.07.2004
Protective Commissioner informed the Crown Solicitor it would only act as tutor in the event of a full grant of legal aid.
12.08.2004
Vacation of the fixture for hearing that was scheduled to commence on 20.09.2004, with an allocated estimate of 30 days. Confirmation of the continuation of the previous order for a stay that had been ordered on 23.06.2004.
Unknown
Termination of grant of legal aid.
10.03.2005
Plaintiff's solicitor ceases to act following termination of grant of legal aid.
05.09.2005
Proceedings placed in the court's Inactive List by order of the Judicial Registrar.
22.11.2005
Guardianship Tribunal revoked the management order it previously made on 08.05.2002.
2005-2008
Proceedings remain in the court's Inactive List but are kept under annual review by the Judicial Registrar.
11.02.2008
Dismissal of plaintiff's application to the List Judge for an order removing the order for a stay of proceedings.
23.04.2010
Defendant filed the present notices of motion seeking dismissal of each of the plaintiff's proceedings, or alternatively, a permanent stay.
14.05.2010
First return date of present motions. Successive mentions of these motions took place before a Judge on 16.02.2010, 05.10.2010, 11.11.2010 and 25.11.2010 in connection with supervised case management by the court.
25.11.2010
Case management orders made, including a direction to the plaintiff to seek the appointment of a tutor.
21.12.2010
Plaintiff directed to arrange the appointment of a tutor if an order dismissing the proceedings was to be avoided. Proceedings stood over for further directions on 01.02.2011.
28.01.2011
Appointment of tutor.
05.04.2011
Directions hearing at which defendant's motion seeking dismissal or stay of plaintiff's proceedings is fixed for a hearing to commence on 15.06.2011.
15.06.2011
Commencement of hearing of the present applications.
I have not extracted the various dates on which the plaintiff's legal representation has changed, nor have I extracted the details of the multiple occasions on which the Protective Commission attended at various court mentions and directions hearings. Neither have I catalogued the chequered history of the plaintiff's applications for legal aid, but I have taken those facts into account in my overall consideration of the issues.
Evidence in support of the motions
In support of these applications, the applicant / defendant tendered and read the following evidence:
(a) An affidavit sworn by "CSO 3" on 1 March 2004;
(b) An affidavit sworn by "CSO 2" on 3 December 2007;
(c) An affidavit affirmed by "CSO 1" on 22 April 2010;
(d) The 101 pages of documents comprising the Exhibit to the affidavit of "CSO 1" affirmed on 22 April 2010;
(e) An affidavit sworn by Dr "A" on 13 June 2004;
(f) An affidavit sworn by Dr "B" on 17 April 2004;
(g) An affidavit sworn by Dr "C" on 17 June 2004;
(h) An affidavit sworn by Dr "D" on 18 June 2004;
(i) An affidavit sworn by "CSO 2" on 6 February 2008;
(j) An affidavit sworn by "Crown 3" on 18 June 2004;
(k) Exhibit "A" which comprised a certificate of death, certifying that Ms Louise Prytherch, a teacher formerly employed by the defendant at Glenfield Park School, and who was a relevant witness in the first proceedings. The certificate states that Ms Prytherch died on 1 July 1998;
(l) An affidavit sworn by "CSO1" on 23 June 2011 enclosing an unsigned copy of a statement made by Ms Prytherch to investigating police officers on 16 May 1993 and related material.
"CSO 1", "CSO 2" and "CSO 3" are solicitors in the employ of the Crown Solicitor for NSW. "Crown 3" is a barrister who has obtained an apprehended violence order against the plaintiff. The experts referred to in the evidence as "Dr 1", "Dr A", "Dr B", "Dr C", "Dr D" and "Dr E" are in combination, medical or allied experts. Three of those are consultants in the field of psychiatry and one is a consultant psychologist. Each of them have examined the plaintiff at various times at the request of the defendant for the purpose of these proceedings.
The affidavit sworn by "CSO 1" on 23 June 2011 arose because during final submissions on 16 June 2011, on the issue of evidentiary prejudice, a question emerged as to the availability of a relevant statement obtained from the deceased witness in the Education claim, Ms Louise Prytherch. On 16 June 2011, at the conclusion of argument, the proceedings were stood over to 23 June 2011 to enable the parties to consider whether they wished to seek a search of archives for a copy of that statement, and whether the parties wished to make such other enquiries and submissions that might arise on this point. At the resumed hearing, those events resulted in the production of the affidavit of "CSO 1" sworn on 23 June 2011.
In his resistance of the defendant's applications, the plaintiff / respondent read the following evidence:
(a) An affidavit of his solicitor "S 1", sworn on 2 May 2011;
(b) The 123 pages of documents comprising Exhibit "A" to the affidavit of "S 1" sworn on 2 May 2011;
(c) The 93 pages of documents comprising Exhibit "B" to the affidavit of "S 1" sworn on 2 May 2011.
The evidence I have examined included detailed medical reports to which I will refer, as well as the materials relating to Victims' Compensation proceedings brought by the plaintiff, and documents from the Guardianship Tribunal concerning matters to do with the plaintiff's legal capacity.
In addition to the evidence outlined above, with the consent of the parties, I have also had regard to the record of the procedural chronology that is evident from the notations that have been made on the court file at the various listing occasions in respect of each of the proceedings, the details of which are summarised in Appendix I and Appendix II to these reasons.
In this context, it is of significance that at a directions hearing convened on 1 February 2011, the parties agreed to the following direction:
"5. The Plaintiff agrees to attend and co-operate with a medical examination to be arranged by the Defendant, subject to the Defendant's ability to find a medical specialist prepared to examine and report upon the Plaintiff and attend to give evidence if required."
Rather than describe the many annexures to the affidavits that are relied upon by the parties, in my consideration of the issues I will refer to the detail of those annexures where I consider that material to be relevant to the applications under consideration.
Applicable legal principles
The power to make the orders for dismissal, or for a permanent stay, as is sought by the applicant / defendant in these applications, is to be found in r 12.7 of the Uniform Civil Procedure Rules 2005, which provides:
"12.7 (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order the proceedings be dismissed or make such other order as the court thinks fit"
The question of whether there has been undue delay or an absence of due despatch requires an evaluative judgment having regard to the circumstances of the cases and any relevant surrounding events.
There is no controversy concerning the applicable principles that govern the exercise of discretion for the determination of applications such as these. Those principles may be briefly summarised as follows.
The regime under the Civil Procedure Act 2005 confers a wider discretion for dismissal of proceedings for want of prosecution than that which was provided by the previously prevailing general law principles: s 56 and s 61(3)(a) of the CP Act: Pacanowski & Anor v Wakerman & Anor [2009] NSWCA 402, per Basten JA at 26]-[28], considering Hoser v Hartcher [1999] NSWSC 527 and following Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
The various forms of prejudice that arise in litigation, including presumptive prejudice, are relevant considerations to be taken into account in the exercise of discretion: Pacanowski at [14]-[15] per Tobias JA, following Aon at [100]-[111].
The exercise of discretion involves a balancing exercise such that a rigid formulaic approach should not be followed as there are no universal prescriptive criteria to be applied in all circumstances: Pacanowski , per Basten JA at [26], considering the criteria identified in Hoser v Hartcher .
The right of a party to pursue litigation is not unfettered as there are a number of interests that are also required to be considered, including those that are intrinsic to the parties, as well as having due regard to public resources, as was identified by Pembroke J in Reliance Financial Services v Griffiths [2010] NSWSC 1490 at [26]-[27], following Sali v SPC Ltd (1993) ALJR 841 at p 844, per Brennan, Deane and McHugh JJ.
Also of relevance is a consideration of the principles with respect to abuse of process by dilatory plaintiffs thereby inflicting unnecessary injustice upon defendants: Batistatos v RTA & Anor [2006] HCA 27; (2006) 226 CLR 256, per Gleeson CJ, Gummow, Hayne and Crennan JJ at [65] and [69].
The considerations for the exercise of discretion are not exhaustive. Included in the mix of considerations that are to be taken into account are the legal status of the parties, occurrence of unreasonable delay due to the lapse of time, the relative responsibility for such circumstances arising, and the manner in which the burden of the claimed prejudice may have an impact on the rights of the parties to the litigation, and upon the outcome of the litigation.
The value-laden nature of the required balancing exercise in considering the ramifications of delay in the litigation process is evident from the range of remarks within the decision in Bi v Mourad [2010] NSWCA 17.
In that case, at [33], Young JA stated:
"33 Primary judges must consider themselves free to exercise their discretions in this sort of case without the thought in the back of their mind that this court will weakly say, "Oh, we had better let the claim be adjudicated and the other side can be satisfied by an order for costs". This is not the clear policy of the legislator in the Civil Procedure Act ."
In the same case, at [47], Allsop P stated:
"47 Delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act . It cannot always be done. This purpose is not through some parliamentary authoritarian or over-prescriptive view of how people should lead their lives; rather, it is through the keen recognition of the conduct of the courts, in particular in the 20th century, of the need to deal with cases expeditiously if they are to be dealt with justly. Delay and case backlog are not merely factors affecting the costs of delivering justice; they corrode the ability of the courts to provide individual justice. The reforms that have taken place under the Civil Procedure Act and the evident attempt by courts to ensure efficiency can be seen not merely to reflect worthy efforts for efficiency but also to be steps vital for the provision of timely individual justice. Views may differ of justice in any particular case; that is the nature of the term and the value-laden task of a decision-maker to do justice."
Also relevant to the consideration of these motions are the requirements of ss 56 - 58 of the CP Act which deal with the overriding purpose of facilitating a quick, just and cheap resolution of litigation, the emphasis of case management being the interests of justice, including justice between the parties. In this regard, in the context of consideration of delay in litigation, in Richards v Cornford (No 3) [2010] NSWCA 134 it was recognised that cases cannot always be resolved in a relatively timely fashion, as was identified by Allsop P, at [43]-[44], namely:
"43 This being the nature of the process of litigation, the courts in this country in modern times, have sought to exercise control and supervision over litigation in order to see cases resolved in a relatively timely fashion. It cannot always be done . Parties, practitioners, courts and judges sometimes fall behind by reference to appropriate standards of efficiency and timeliness. Nevertheless, the need for the due despatch of the cases of litigants is ever-present and is a fundamental aim of the administration of justice.
44 To put the matter simply and bluntly, parties are entitled to expect that the costly and stressful, though necessary evil that is litigation be resolved with reasonable despatch so as to minimise, where reasonably possible , the time during which people are subjected to its rigours and strains."
[Emphasis added]
In considering the interests of justice, the required consideration is the timely and appropriate administration of justice, with justice to both sides of the litigation: Lee v Keddie [2011] NSWCA 2, per Allsop P, at [11].
In determining whether a fair trial is likely to be achieved in the circumstances, it must be recognised that the effluxion of time and the operation of chance will affect the evidence in the case but that will not necessarily prevent a fair trial as the circumstances of a trial need not be perfect or ideal: Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128, per Priestley JA at [79].
My consideration of the issues calling for decision in these applications will be guided by the principles that I have summarised in the preceding paragraphs, but with the added consideration that in this case, appropriateness must be viewed in the context that one of the parties is a person affected by legal incapacity.
Submissions of the parties
In the paragraphs that follow I set out the general effect of the submissions of the parties.
The applicant / defendant provided outline written submissions which were marked MFI "4". In essence, on behalf of the applicant / defendant in each case, it argued that if the proceedings were permitted to be continued, presumptive prejudice, and therefore manifest prejudice, would operate against the defendant in each of the proceedings. It was argued that this position has come about because of what was described as reprehensible conduct on the part of the plaintiff regarding threats he has made to medical experts, together with inherent difficulties for both proof of, and testing of, the plaintiff's claims.
The defendant has also placed great reliance on the significant passage of time since the claims arose, and without evidence, submitted this would have the effect of fading the memories of witnesses. Whilst that might be a truism of general application, no specific evidence was called to show that general truism had a specific application to this case. The defendant also relied upon the stated difficulty in obtaining medical and allied opinions from expert psychiatrists and psychologists in order to enable it to properly test and defend the claims brought by the plaintiff.
The defendant submitted that the accumulated delays in the respective cases have led to real and deleterious impacts upon the ability of the defendant to defend each of the plaintiff's claims.
The position of the defendant in the applications is summed up by the following extract from its submissions:
"xiii. It would be manifestly quite unjust to allow these proceedings to go to what would in form be a trial but in substance would only be a ceremonial enactment of an opportunity to establish whether or not the plaintiff has the rights he claims: see generally Bastistatos , per Bryson JA at [81], Mason P at [1] and Giles JA at [2]."
The respondent / plaintiff provided a written outline of submissions in reply and these were marked MFI "5". In essence, those submissions argued that any prejudice to the defendant was not so great as to justify the drastic step of terminating the plaintiff's claims. It was argued that the plaintiff ought to be permitted to continue his cases to finality since his inability to at times prosecute his actions, a factor not always fully recognised by the plaintiff, was significantly related to his mental problems, and this issue has now been given appropriate attention.
The plaintiff submitted that all of those difficulties have now been addressed by the appointment of a tutor, the pursuit of a review for the grant of legal aid, and consent to important facilitative directions made by the court at a case management directions hearing that was convened on 1 February 2011, particularly the direction numbered 5, which I have already cited at paragraph [76] of these reasons concerning the preparedness of the plaintiff to co-operate with any medical examinations that might be arranged on behalf of the defendant.
In the light of those matters, it was submitted on behalf of the plaintiff that in reality, the defendant was seeking to in effect unfairly make an alternative argument for dismissal on the basis that the plaintiff's cases were " unjust " from the outset. The plaintiff submitted that:
"[The] Just solution is to let the actions proceed but subject to tight timetable to force early resolution of the real issues".
Each party developed and supplemented their submissions with further oral submissions.
The defendant went on to argue that as a result of cumulative litigation delays that have occurred thus far without any form of finalisation of the proceedings, including delays referable to conduct on the part of the plaintiff in his contact with the defendant's medical and allied experts, presumptive and real prejudice has arisen. It was argued that such prejudice operates so as to preclude a fair trial of the issues, thus warranting the relief sought by the defendant in these motions.
The defendant also argued that the passing of time has without doubt adversely affected the quality, and therefore the reliability, of the plaintiff's own testimony on important matters of history, questioning whether he would in fact give evidence at all. It was further argued that the ability of the defendant to properly test the evidence of the plaintiff, and the expert evidence to be called on his behalf, has been significantly compromised by the passage of time, such that it is unlikely that a fair trial could be had. In that regard, as an indication of the argued prejudice it claims to have incurred, the defendant also pointed to the fact of the death of a key defence witness, an employee of the Glenfield Park School who would ordinarily have been called to give evidence in the Education claim.
In essence, the defendant asserted that according to the principles established in Aon , the point has been reached in the litigation where the plaintiff's litigation should not be permitted to continue. The position of the defendant was that the proceedings had been on foot for long enough and it was time for the defendant to be able to close its files in these matters.
Consideration
At the outset of my evaluation, I take the opportunity to observe that it is beyond controversy that the plaintiff's proceedings have followed a tortuous path at a slow or glacier-like pace, which until the appointment of a tutor in early 2011, showed little sign of significant procedural or evidentiary progress. It must be said that for personal injury litigation, the plaintiff's proceedings have been on foot for an inordinately and unusually long period of time.
In the paragraphs that follow, I set out my consideration of the critical matters that were the subject of submissions:
(a) Legal capacity of the plaintiff;
(b) The legal aid issue;
(c) Medical and allied evidence concerning the plaintiff's condition, including a review of the reports amenable to analysis, those reports not amenable to analysis, and the conclusions available to be drawn from that review;
(d) Claimed prejudice due to doubtful accuracy in identifying underlying facts for expert witnesses.
(e) Claimed prejudice from non-application of the Civil Liability Act 2002;
(f) Claimed prejudice arising from conduct of plaintiff and the related forensic decisions made by the defendant;
(g) Claimed prejudice to the defence of Education claim due to death of a key defence witness;
(h) Claimed prejudice due to the faded recollections of witnesses;
(i) Claimed prejudicial consequences of delay;
(j) Claimed prejudice from anticipated future failure to achieve due despatch of the proceedings.
Legal capacity of the plaintiff
On 8 May 2002 the Guardianship Tribunal made an order concerning the plaintiff under the Protected Estates Act 1983, stating that the plaintiff was a person who was incapable of managing his financial and legal affairs.
By that order, the management of the plaintiff's estate was committed to the Office of the Protective Commission. That order was stated to have been made on the basis of evidence in the form of the report of Dr Jonathan Phillips ["Dr 1"] dated 14 August 2001, and a report from Dr Thomas Clark dated 3 May 2002. The report of Dr Clark did not otherwise feature in evidence in these applications.
The Guardianship Tribunal's documentation indicates that in the past the plaintiff had been admitted to psychiatric hospitals at Rozelle, Caritas and Corrections Health Service. The details of the diagnoses or treatment, or the duration of the admissions have not been identified in the evidence.
On 22 November 2005 the Guardianship Tribunal revoked its previous orders made on 8 May 2002. Notwithstanding the revocation of those orders, it is common ground between the parties that the plaintiff is a person who should be regarded as being incapable of managing his own affairs.
Although in these applications I am not required to make a formal finding on the nature and extent of the plaintiff's psychiatric condition, it seems from the expert opinions I have reviewed including the most recent opinion of Dr Pete Vaux ["Dr E"] which followed his re-examination of the plaintiff on 29 March 2011, and which is not materially different to that which was before the Guardianship Tribunal on 8 May 2002, that there is ample expert evidence to justify a conclusion that the plaintiff is a person whose circumstances are affected by legal incapacity. Having regard to the medical opinions of Dr Phillips and the more recent report of Dr Vaux, for the purpose of deciding these applications, I consider this to be plainly apparent.
(13) On 23 April 2001 the parties were represented before a Judge at a directions hearing. The matter was stood over for a further directions hearing to 29 October 2001 for the purpose of the plaintiff pursuing an application under the Protected Estates Act 1983;
(14) On 21 February 2002 a Judge made an order in chambers altering the next directions hearing date to 5 March 2002;
(15) On 5 March 2002 the parties were represented before a Judge at a directions hearing. The matter was stood over for mention on 12 April 2002. The plaintiff was directed to file and serve evidence concerning the status of the matter, including the appointment of a tutor and the steps that remain to be taken to achieve readiness for hearing;
(16) On 2 April 2002 the parties were represented before a Judge. Leave was granted for the defendant to file a notice of motion returnable on 9 April 2002;
(17) On 24 May 2002 the parties were represented before a Judge. The defendant's notice of motion filed on 9 April 2002 was dismissed but the plaintiff was ordered to pay the costs of that motion. The matter was stood over for mention on 9 July 2002;
(18) On 9 July 2002 the parties were represented before a Judge. The plaintiff was required to clarify the state of pleadings. The proceedings were stood over for mention to 9 August 2002, to be mentioned with proceedings numbered 14065 of 2001 in respect of the DCS claim. Costs were reserved.
(19) From 6 August 2002 these proceedings were case managed in conjunction with the DCS proceedings and the case management dates set out in Appendix II from 6 August 2002 reflect the further case management course of the matter.
Appendix II
Significant listing dates of the DCS claim
(1) On 20 June 2002 the plaintiff appeared and was self represented at a directions hearing. It was noted that the plaintiff had "served all reports" and was ready to take a hearing date. The defendant required further time and the matter was stood over for a further directions hearing on 9 July 2003. The inter-relationship of damages issues with the Education claim was noted on the file. The defendant was ordered to pay the plaintiff's costs of the day.
(2) On 9 July 2002 the List Judge noted there was a difficulty of the plaintiff's representation, including the need to resolve the issue of the involvement of the Protective Commission. The matter was stood over for further mention to 6 August 2002.
(3) On 6 August 2002 the proceedings were mentioned before the List Judge. The proceedings were stood over for further mention to 22 October 2002, noting the inter-relationship with the Education claim.
(4) On 22 October 2002 the List Judge noted that the plaintiff was in custody. The plaintiff was directed to inform the defendant within 14 days whether it was intended to amend the statement of claim. The matter was stood over to the long matters call-over list for 17 December 2002.
(5) On 26 November 2002 the parties appeared. A notice of motion filed by the plaintiff was listed for hearing for 27 February 2003.
(6) On 3 December 2002 a directions hearing took place before the Registrar. It is not clear as to whether the parties appeared. The court issued both parties with a show cause notice returnable on 20 August 2002.
(7) On 17 December 2002 neither party appeared before the List Judge. The matter was stood over to the long matters call-over list for 19 May 2003.
(8) On 27 February 2003 the parties appeared before a Judge. The defendant was granted leave to file a notice of motion seeking to have the plaintiff's proceedings dismissed. Motion fixed for mention on 20 March 2003.
(9) On 20 March 2003 there was no appearance by the plaintiff and the matter was stood over for mention to 29 May 2003.
(10) On 19 May 2003 the matter was listed before the List Judge. The parties did not appear. A representative of the Protective Commission was present. The matter was stood over for directions to 29 May 2003.
(11) On 29 May 2003 the parties appeared before a Judge. The Protective Commission was required to indicate whether it intended to pursue the proceedings on the plaintiff's behalf.
(12) On 7 August 2003 the parties appeared before a Judge. The proceedings were listed for mention on 18 August 2003 for the purpose of fixing a hearing date.
(13) On 18 September 2003 the parties appeared before a Judge. A direction was given that the issue of liability be determined separately from the issue of quantum. The proceedings were stood over to the long matters call-over on 3 November 2003, along with direction for both proceedings to be heard together.
(14) On 3 November 2003 both parties appeared before the List Judge. The Protective Commission also appeared. The court file noted that a proposed defence motion seeking a permanent stay was to be listed for hearing on 8 March 2004 with an allocated estimate of 2 days. A notation was made on the court file that a secure court was required due to the plaintiff's psychiatric condition. At this time the proceedings were fixed for a hearing with a 30 day estimate to commence on 20 September 2004.
(15) On 5 March 2004 the parties appeared before the List Judge. The Protective Commission also appeared. Orders were made vacating the date fixed for the notice of motion scheduled to be heard on 8 March 2004. A directions hearing was appointed for 17 March 2004.
(16) On 17 March 2004 the parties appeared before a Judge. The Protective Commission also appeared. The defendant's notice of motion fixed for 8 and 9 March 2004 was vacated and further directions were given in accordance with short minutes;
(17) On 30 March 2004 the defendant appeared before a Judge. There was no appearance by the plaintiff. A notice of motion filed by the defendant was fixed for hearing for 22 (sic for 23) June 2004, along with other orders.
(18) On 23 June 2004 both parties appeared before a Judge. The Protective Commission appeared for the purpose of arguing issues concerning the appointment of a tutor. Orders were made in accordance with short minutes which envisaged that the Protective Commission would file a consent to act as tutor. No such document was ever filed. Liberty was granted to apply generally and to seek vacation of the hearing date of 20 September 2004 on reasonable notice. A costs argument was stood over to be determined on the following day. (A stay had apparently been ordered on this day, it is not noted on the court file but it is noted as order 2 in the short minutes.)
(19) On 24 June 2004 both parties appeared before a Judge. The plaintiff and the Protective Commission were ordered to pay the defendant's costs of a notice of motion.
(20) On 27 July 2004 both parties appeared before a Judge. The Protective Commission was also represented. Leave was given to the defendant to file a notice of motion. The proceedings were stood over for directions before the List Judge on 4 August 2004.
(21) On 4 December [sic for August] 2004 the defendants appeared before a Judge. There was no appearance by the plaintiff on that occasion. A notice of motion returnable on this day was stood over to be heard on 12 August 2004 and the court was to notify the plaintiff of that listing.
(22) On 12 August 2004 the defendants appeared before a Judge. There was no appearance by the plaintiff. The hearing date that had been fixed for 20 September 2004 was vacated on the application of the defendant. The stay granted on 23 June 2004 was ordered to continue pending the appointment of a tutor.
(23) On 5 September 2005 the defendant appeared before the Judicial Registrar. There was no appearance by the plaintiff. It was noted that the matter remained stayed. The matter was placed in the courts inactive list for 1 year, and was to be reviewed after 5 September 2006. It was noted the defendant might file a notice of motion seeking to have the proceedings dismissed.
(24) On 20 September 2005 the court file shows the matter was incorrectly listed. There was no appearance for either party on this day.
(25) On 7 November 2005 the Judicial Registrar reviewed the file in chambers and noted the matter may be relisted for directions when legal representation of the plaintiff was obtained.
(26) On 1 September 2006 the Judicial Registrar reviewed the file in chambers and noted that at that stage no tutor had been appointed, nor had legal representation being obtained. It was noted that the stay that had been previously ordered would continue to operate. The proceedings were returned to the inactive list for a further 1 year with a notation for a review to take place after 1 September 2007.
(27) On 12 September 2007 the Judicial Registrar reviewed the file in chambers and noted that no tutor had been appointed at that stage. It was also noted that no legal representation had been obtained. It was noted that the stay that had previously been ordered would continue to operate. The proceedings were returned to the inactive list for a further 1 year with a notation for a review to take place after 1 September 2008.
(28) On 9 October 2007 the parties appeared before the Judicial Registrar. The plaintiff was ordered to file any notice of motion seeking removal of the stay within 21 days. The proceedings were stood over to a case management directions hearing on 6 November 2007. (There is no indication that any such notice of motion has been filed)
(29) On 6 November 2007 the defendant appeared before the Judicial Registrar. There was no appearance for the plaintiff. The defendant was ordered to complete service of all documents in support of " the notice of motion " by 4 December 2007 and the plaintiff was to file anything in reply by 18 January 2008. The notice of motion was listed to appear in the reserve list on 6 February 2008. The file was noted to the effect that the defendant requested that the hearing take place in a secure court.
(30) On 6 to 8 February 2008 a notice of motion was heard before a Judge. The plaintiff was self represented and the defendant was represented by counsel. The proceedings were stood over for judgment to be delivered on 11 February 2008.
(31) On 11 February 2008 the plaintiff's application for the revocation of the stay was refused and dismissed and the stay that was ordered on 23 June 2004 was ordered to continue. An order was made that the proceedings were not to be relisted for review during the operation of the stay.
(32) On 14 May 2010 the parties appeared before the Assistant Registrar. It appears that motions seeking the dismissal of the plaintiff's proceedings had been filed at this stage. These motions were stood over to the general motions list to be heard on 16 July 2010.
(33) On 16 July 2010 the parties appeared before the Assistant Registrar. The motions seeking dismissal of the plaintiff's proceedings were stood over to be heard on 5 October 2010 with an allocated 1 day estimate.
(34) On 5 October 2010 the parties appeared before a Judge. The motions seeking dismissal that were listed to be heard on that day were stood over to be heard by that Judge on 11 November 2010. On this occasion the court file contains the notation that the possibility of the appointment of a tutor was to be explored as well as what further steps were to be taken in relation to the notice of motion. Costs of the day were reserved.
(35) On 11 November 2010 the parties again appeared before the Judge who made orders on 5 October 2010. The motions for dismissal were stood over to 25 November 2010. It was noted that the proceedings were to be case managed until the proceedings were to be referred back to the List Judge. No other specific orders were noted on the court file on this occasion. (This must be read as a reference to an alternative List Judge as the List Judge made an order on 5 March 2004 by which he disqualified himself from further dealings with the plaintiff's cases.)
(36) On 25 November 2010 the parties again appeared before the Judge who made the most recent orders. In the course of case management the proceedings were stood over for directions on 21 December 2010. No other specific orders were noted on the court file.
(37) On 21 December 2010 the parties again appeared before the Judge who made the most recent orders. The proceedings were stood over for further directions on 1 February 2011. Orders were noted on the court file requiring the plaintiff to appoint a tutor if orders [or dismissal] were to be avoided. It was foreshadowed that there would be a timetable fixed for the further conduct of the proceedings. The question of costs was reserved.
(38) On 1 February 2011 the parties again appeared before the Judge who made the most recent orders. Case management orders were made in accordance with short minutes. The proceedings were stood over for further directions on 5 April 2011.The matters in paragraphs 1 and 5 of those short minutes were noted and costs of the day were reserved.
(39) On 5 April 2011 the parties again appeared before the Judge who made the most recent orders. The defendant's motions seeking dismissal or stay of the plaintiff's proceedings were fixed for hearing to commence on 15 June 2011, with an allocated estimate of 2 days. The defendant was ordered to serve within 7 days any further evidence upon which it intended to rely. The plaintiff was ordered to serve any further evidence within 28 days and leave was given to the defendant to serve any evidence in reply within 14 days of being served with any further evidence from the plaintiff.
(40) On 15 June 2011 the hearing of the defendant's motions seeking dismissal or stay commenced and then continued on 16 and 23 June 2011.
**********
Decision last updated: 15 July 2011
24
8