Binetter v Binetter

[2022] NSWCA 169

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Binetter v Binetter [2022] NSWCA 169

Hearing dates:

8 August 2022

Date of orders:

1 September 2022

Decision date:

01 September 2022

Before:

White JA at [1];
Mitchelmore JA at [2];
Basten AJA at [3]

Decision:

(1)   Dismiss the appeal from the judgment and orders made in the Common Law Division.

(2)   Order that the appellant pay the respondent’s costs in this Court.

Catchwords:

LIMITATION OF ACTIONS – debt – limitation period – suspension of limitation period – lender under relevant disability – mental impairment – whether impairment rendered lender incapable of, or substantially impeded in, managing her affairs in relation to initiating proceedings to recover loan – whether enduring powers of attorney and enduring guardianship prevent finding of disability – Limitation Act 1969 (NSW), ss 11, 52

EVIDENCE – documentary evidence – business records – medical reports – records of treating health professionals – admissibility – whether other party can require party tendering record to call expert for cross-examination – Uniform Civil Procedure Rules 2005 (NSW), r 31.29

EVIDENCE – evidence of disability – solicitor for deceased lender who took instructions at material time not called – whether Jones v Dunkel inference available – whether solicitor-client privilege justified absence

Legislation Cited:

Evidence Act 1995 (NSW), s 69

Limitation Act 1969 (NSW), ss 11, 14, 52, 63, 69

Uniform Civil Procedure Rules 2005 (NSW), rr 31.17, 31.18, 31.28, 31.29; Pt 31, Div 2

Cases Cited:

Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kotulski v Attard [1981] 1 NSWLR 115

Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 1 WLR 1511; [2003] 3 All ER 162

Olive v Johnstone [2006] NSWCA 21

State of New South Wales v Harlum [2007] NSWCA 120

Texts Cited:

J Wilterdink, “Mental status scales to evaluate cognition” (2020) UpToDate

D Zheng et al, “Longitudinal Associations Between Visual Impairment and Cognitive Functioning” (2018) 136(9) JAMA Ophthalmol 989

Category:

Principal judgment

Parties:

Steven Binetter (Appellant)
Ronald Binetter (Respondent)

Representation:

Counsel:
D B Studdy SC / C D Freeman (Appellant)
G Sirtes SC / C P O’Neill (Respondent)

Solicitors:
Braddon Marx Lawyers (Appellant)
Eakin McCaffrey Cox (Respondent)

File Number(s):

2021/00292457

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2021] NSWSC 1249

Date of Decision:

01 October 2021

Before:

Beech-Jones J

File Number(s):

2018/166618

HEADNOTE

[This headnote is not to be read as part of the judgment]

In May 2018, Mrs Ida Wolff, by her tutor, commenced proceedings against her nephew Mr Ronald Binetter, to recover a loan of $1,000,000 made in September 2010. Mrs Wolff died in September 2018 at 98 years of age and Mr Steven Binetter, as legal representative of her estate, continued the proceedings.

The six-year limitation period for the recovery of debts had expired in September 2016 pursuant to ss 14 and 63 of the Limitation Act 1969 (NSW). The plaintiff, however, submitted that the running of the limitation period had been suspended whilst Mrs Wolff had been under a disability which made her incapable of, or substantially impeded in, managing her affairs in relation to the recovery of the loan. Three categories of evidence were relied on to establish that Mrs Wolff had suffered such a disability: the evidence of Ms Suzanne Binetter who had cared for Mrs Wolff; Mrs Wolff’s medical and hospital reports; and an expert report by Dr Eikens, a rehabilitation physician.

The primary judge found that Mrs Wolff had given a loan to Mr Ronald Binetter which had not been repaid, but that Mrs Wolff had not been under a relevant and sufficient disability and the limitation period had expired. Although the evidence showed that Mrs Wolff had suffered bouts of confusion, forgetfulness and delirium and physical impairments, it did not establish that Mrs Wolff was incapable of, or substantially impeded in, managing her affairs in relation to recovery of the loan.

On appeal, the primary issues were whether the primary judge erred:

1. in finding limitations in Dr Eikens’ report and the opinions expressed in other medical reports; and

2. in failing to find that the evidence of Ms Suzanne Binetter demonstrated a relevant disability.

Held by Basten AJA (White and Mitchelmore JJA agreeing), dismissing the appeal:

1. A person is under a disability for the purposes of the Limitation Act if three conditions are satisfied. First, there must be a disease or impairment of the person’s physical or mental condition. Second, the impairment must operate for a continuous period of at least 28 days to render the person incapable of, or substantially impeded in, the management of his or her affairs. Third, the incapacity or substantial impediment must relate to the management of the person’s affairs in relation to the commencement of proceedings: [10]-[12].

   Limitation Act 1969 (NSW), ss 11(3)(b)(i), 52(1), considered.

   Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 396, followed; Kotulski v Attard [1981] 1 NSWLR 115; State of New South Wales v Harlum [2007] NSWCA 120, considered.

As to issue (i) – expert reports and opinions

1. The primary judge did not err in finding that Dr Eikens’ report did not directly address the matters identified in s 11(3) of the Limitation Act, identified above. Evidence that Mrs Wolff’s abilities to consider “complex legal issues” and to “manage and/or control her own affairs” did not address Mrs Wolff’s capacity to give instructions to commence legal proceedings. The legal issues involved in recovering the loan were not “complex”: [56], [67], [72].

2. The primary judge was entitled to place limited reliance on contemporaneous medical reports where the authors were not called for cross-examination. The primary judge was not obliged to accept whatever conclusion the party tendering the report sought to draw from it. Further, r 31.29 of the Uniform Civil Procedure Rules does not require the attendance of an expert who was not intended to be a witness in the proceedings. The rule does not undermine s 69 of the Evidence Act by rendering business records inadmissible unless the author is called: [84], [91]-[93].

   Uniform Civil Procedure Rules 2005 (2005), rr 31.17, 31.18, r 31.27, 31.28, 31.29, Pt 31, Div 2; Evidence Act 1995 (NSW), s 69, considered.

As to issue (ii) – evidence of Ms Suzanne Binetter

1. The primary judge did not err in finding that Ms Suzanne Binetter’s evidence did not support the appellant’s case. In some respects her evidence supported the conclusion that Mrs Wolff was not under a relevant disability. In 2018, well after the expiry of the limitation period, (i) Ms Suzanne Binetter thought that Mrs Wolff was capable of giving instructions to recover the money, (ii) Mrs Wolff gave a clear and rational response to the suggestion of legal representation, and (iii) Mrs Wolff sought legal advice about commencing proceedings: [76].

2. The possibility that a plaintiff may need a tutor if proceedings are commenced does not necessarily demonstrate that the plaintiff was under a relevant disability for the purposes of the Limitation Act: [82].

   Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369, followed.

JUDGMENT

1. WHITE JA: I agree with Basten AJA.

2. MITCHELMORE JA: I agree with Basten AJA.

3. BASTEN AJA: On 28 May 2018, the late Ida Wolff commenced proceedings against her nephew, Ronald Binetter, to recover a loan of $1,000,000. The proceedings were commenced in her name by her then tutor, Suzanne Binetter. On 4 September 2018, Mrs Wolff died and the proceedings were continued on behalf of her estate by Steven Binetter, the appellant, as an executor of her estate.

4. The case for the estate was that, on or about 20 September 2010, Mrs Wolff had given Ronald Binetter a cheque for $1,000,000 as a loan repayable on demand. However, no demand was made for repayment until 27 April 2018. The defence denied the making of the loan and receipt of the money. It further alleged that recovery was statute-barred pursuant to ss 14 and 63 of the Limitation Act 1969 (NSW), the amount having been paid more than six years prior to the demand for repayment and the commencement of the proceedings. The plaintiff filed a reply asserting that Mrs Wolff was under a disability for a period of years prior to the commencement of the proceedings and that the running of the limitation period was suspended for the duration of her disability, pursuant to s 52(1)(d) of the Limitation Act. There was no dispute that Mrs Wolff suffered from a number of ailments in her later years, prior to her death at an age of 98 (or possibly 104) years, but there was a live issue as to whether they were sufficiently disabling to suspend the limitation period.

5. The trial judge, Beech-Jones J, held that there had been a loan made by Mrs Wolff to Ronald Binetter, but that her undoubted infirmities did not constitute a relevant disability sufficient to suspend the running of the limitation period before it had expired. Accordingly, the proceedings brought by the plaintiff were dismissed. [1] Steven Binetter, as the legal representative of the estate, filed a notice of appeal.

   1. Ida Wolff bht Steven Binetter v Binetter [2021] NSWSC 1249 (“Binetter”).

6. The only issue raised on the appeal was whether the judge had erred in rejecting the claim that Mrs Wolff had been under a disability during the relevant period so as to suspend the running of the limitation period. Although there was no issue raised with respect to the trial judge’s statement of the relevant legal principles, it will be convenient to set those out briefly before considering the factual issues.

7. The substance of the appeal concerned factual findings made by the trial judge. These turned on three categories of evidence which may be broadly identified in the following terms:

1. contemporaneous evidence of Suzanne Binetter, a trusted member of the family, who spent significant time with Mrs Wolff during the decade prior to her death;

2. medical and hospital reports available in respect of her treatment for various ailments in the same period prior to her death; and

3. a report by a rehabilitation physician, Dr Luba Eikens, prepared for the purposes of the proceedings.

8. For the reasons set out below, no error was demonstrated in the findings of the trial judge and the appeal must be dismissed with costs.

Legal principles

9. No issue arises from the proposition that the limitation period would have been suspended for the duration of the period during which Mrs Wolff was “under a disability”. The critical provision, appearing with definitions in s 11 of the Limitation Act, reads as follows:

11 Definitions

…

(3)   For the purposes of this Act a person is under a disability–

…

(b)   while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of–

(i)   any disease or any impairment of his or her physical or mental condition,

(ii)    restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1958,

(iii)    war or warlike operations, or

(iv)    circumstances arising out of war or warlike operations.

10. The factor identified in subpar (i) was relied on. Relevantly, there are three elements to that limb of the definition of being “under a disability” which are material. First, there must be a disease or impairment of the person’s physical or mental condition. Mrs Wolff undoubtedly suffered from impairments affecting both her physical and mental conditions. However, the focus was on her mental condition.

11. Secondly, such an impairment had to operate for a continuous period of at least 28 days to render her incapable of, or substantially impeded her in, the management of her affairs. There was clearly evidence that from time to time Mrs Wolff was confused and delusional. On more than one occasion she was admitted to hospital. However, unless the period of incapacity or the hospital stay continued for the minimum period, it was not to be measured as part of a period of suspension of the limitation period.

12. Thirdly, and importantly for present purposes, it was not sufficient that any period of incapacity or substantial impediment related to her ability to look after herself, or to manage her affairs generally. Rather, the incapacity or substantial impediment had to relate to the management of her affairs “in relation to” the cause of action “in respect of” the limitation period.

13. As explained by Campbell JA in Guthrie v Spence,[2] the grammatical structure of par (b) is awkward, but its meaning is tolerably clear:

“159 A meaning that is the same as I have just been considering will arise if the syntax is analysed so that ‘in respect of the limitation period for which the question arises’ is an adjectival phrase that describes the noun phrase ‘affairs in relation to the cause of action’. So regarded, ‘in respect of the limitation period for which the question arises’ serves to divide off, from the whole ambit of a person’s affairs in relation to a cause of action, those affairs that are in respect of the limitation period for which the question arises. Reading s 11(3)(b) as having that syntax would advance the purpose for which s 11(3)(b) exists. It is readily understandable policy that a limitation period should continue to be suspended while a plaintiff is substantially impeded in dealing with those practical matters that need to be attended to for the action to be brought in time.

160 In my view, that is the correct syntactical structure of s 11(3)(b). Its having that syntax enables one to advance from the conclusion reached by analysis of the meaning of ‘affairs’, namely that the shade of the meaning of ‘affairs’ in s 11(3)(b) is one that places particular weight on the activities in relation to the cause of action leading up to and ending with the institution of proceedings, and to conclude that the only ‘affairs’ that are referred to by s 11(3)(b) are those practical matters that lead up to and end with the institution of proceedings for the particular cause of action in question.”

2. (2009) 78 NSWLR 225; [2009] NSWCA 369 at [154]-[159] (Handley AJA and I agreeing).

14. On that reading there are two limitations on the question as to the ability to manage one’s affairs, namely those identified by the two connecting phrases. Importantly, the focus is not on running proceedings from beginning to end, but on their commencement. That is not to say that the nature of the proceedings should be artificially confined by identifying the decision as being to commence or not. On the other hand, the reasoning of Campbell JA reflects a purposive approach to construing the provision, which was not challenged.

15. The trial judge set out a further passage from Guthrie:[3]

“140 In the context in which it occurs in s 11(3)(b), the relevant ‘affairs’ are ones in relation to a particular cause of action. In a general sense, managing one’s affairs in relation to a particular cause of action includes doing the various things that would need to be done if that cause of action were to be dealt with. Thus, it includes seeking advice about whether a civil remedy exists for some perceived wrong, seeking advice about the difficulties, risks, cost and effort involved in pursuing any such remedy and the likely returns, comprehending and evaluating that advice, and, if the decision to commence proceedings is taken, thereafter engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action.”

3. Binetter at [98].

16. This appears to have led the appellant to submit that Mrs Wolff had to be capable of reasoning “normally about matters relevant to the cause of action”, including in relation to all the steps which might arise in the course of a proceeding, a list of eight steps being catalogued. [4] However, that is not the test required by s 11(3)(b). In Guthrie at [140] Campbell JA was dealing with the phrase “management of his or her affairs”; but it would be wrong to take that phrase out of its context, something that Campbell JA did not do. He immediately noted a critical contextual limitation:

“141 In deciding the meaning of ‘affairs’ in s 11(3)(b), one must bear in mind that the context in which it occurs is that of the Limitation Act. The sole concern of the Limitation Act is with the time within which an action must be commenced – anything that happens after an action has been commenced is irrelevant to it. The Act prescribes various limitation periods for different types of causes of action. The purpose of s 11(3) and s 52 is to identify circumstances in which it would always be just to allow the plaintiff a longer time within which to commence an action. (That is a different purpose to the purpose of provisions of the Limitation Act that empower a judge to grant a discretionary extension of the limitation period.) If a plaintiff were to become substantially impeded in the management of his or her affairs in relation to the cause of action after the action had been commenced that would not be relevant to the application of s 11(3).

142    As well, it is relevant that the only consequence that flows under the Limitation Act from a person being under a disability is that the running of a limitation period is suspended. A limitation period becomes of no practical importance once proceedings have been commenced within the limitation period.

143 Both these aspects of the context assist in concluding that the shade of meaning of ‘affairs’ in s 11(3)(b) is one that places particular weight on the activities in relation to a cause of action leading up to and ending with the institution of proceedings.”

4. Appellant’s written submissions, 24 July 2022, par 41.

17. The conclusions set out at [159]-[160] were directed to the provision read as a whole, not to individual phrases. They should be applied.

18. In relation to the term “mental condition”, it is commonplace to adopt a passage from the reasoning of Slattery J in Kotulski v Attard,[5] to the following effect:

“‘Mental condition’ which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings.

It seems to me that the expression ‘mental condition’ is meant to cover the mind’s activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment. …

I am of opinion that it is a relevant matter, in the consideration of the question raised by the notice of motion, to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action.”

5. [1981] 1 NSWLR 115 at 117-118.

19. There is a danger in ignoring context. In Guthrie, Campbell JA explored the wide range of statutory and rule-based provisions dealing with disability and incapacity in relation to legal affairs, involving differing language and different shades of meaning, concluding:

“175    The task-specific nature of these tests of capacity has the effect that the one person could have capacity to perform one task, but lack capacity to perform a different task … . In Masterman-Lister v Brutton & Co,[6] Kennedy LJ recognised that a personal injuries plaintiff might have capacity to make decisions concerning the litigation including whether or not to settle, but lack capacity to decide (even with advice) how to administer a large award.

176 These differing tests for capacity emphasise the need, when considering whether there is disability within the meaning of s 11(3)(b), to pay close attention to the wording of s 11(3)(b), and not be distracted by whether the person in question exhibits capacity in some other sense.”

6. [2002] EWCA Civ 1889; [2003] 1 WLR 1511; [2003] 3 All ER 162 at [27].

20. While the statement in Kotulski may be helpful in some cases, in State of New South Wales v Harlum,[7] I expressed a note of caution in relation to its general application:

“139    That passage was adopted by this Court in Olive v Johnstone. [8] In some cases, that question may be of considerable assistance, particularly where, as in Olive, there was a lack of relevant medical evidence. However, it is important not to replace the statutory test with that which Slattery J identified as ‘a relevant consideration’. For example, a person can act irrationally without having a disease or impairment of the mind, especially if acting irrationally extends to the results of confused thinking, conflicting emotions and other forms of behaviour in which an outsider’s view of rational behaviour does not prevail. In particular, people often do not pursue legal claims and their reasons may be manifold, including doubt as to the likelihood of success, fear of lawyers’ fees, fear that the benefit will not be worth the cost, including the emotional cost, of being involved in litigation, not wishing to sue a person one knows and many other similar reasons. Simply to ask, ‘Did the plaintiff behave rationally in the circumstances?’ may often obscure the inquiry prescribed by statute, rather than provide a clear answer.”

7. [2007] NSWCA 120.

8. [2006] NSWCA 21 at [61].

21. In the present case, the task facing the trial judge was to determine whether he was satisfied that, for a sufficient period before the limitation period expired in September 2016, Mrs Wolff was at least substantially impeded in making a decision to commence proceedings against her nephew Ronald Binetter. The judge correctly addressed that issue.

Family background

22. Her death certificate recorded that that Mrs Wolff was born in 1920, in Czechoslovakia. (A referral letter in 1995, from Dr Sylvia Terkasher, her general practitioner, indicated that she believed Ida Wolff had been born in 1913.) In any event, she and her sister, Margaret Binetter, were the only two of their family to survive the Holocaust. Both came to Australia after the war. She had married Dr Arthur Wolff, who died in 1994, in Hungary after the war. Margaret’s husband, Erwin Binetter, died in 2009. Mrs Wolff had no children, but her sister had four sons, Michael, Ronald, Peter and Andrew Binetter.

23. Suzanne Binetter was married to Michael. In the period from 2010 to 2018, each year she spent some 10 or 11 months in Australia and one to two months overseas. While she was in Australia she visited Mrs Wolff every two or three days. Mrs Wolff was living at home in an apartment but had round-the-clock carers. Suzanne Binetter took her to appointments with doctors and took her out of the apartment for walks and shopping trips. In December 2011, Mrs Wolff appointed Margaret and Suzanne as her attorneys under an enduring power. At the same time, her sister was appointed her enduring guardian. By that stage, Mrs Wolff was functionally blind.

24. On 29 April 2014, Mrs Wolff signed an authority for Suzanne Binetter to act on her behalf with the two banks with which she had accounts. The authority stated that Suzanne Binetter had been assisting her “in an increasing capacity for many years” since the death of her husband in 1994. Suzanne Binetter was present at a family dinner in September 2010 when Ronald Binetter asked Mrs Wolff for a loan of $1,000,000. Mrs Wolff arranged for Suzanne Binetter to transfer that amount from one bank account to another so that she could write a cheque in favour of her nephew Ronald.

25. Suzanne Binetter affirmed four affidavits in the proceedings and was cross-examined. She was undoubtedly an important witness as she was able to give detailed evidence, as a lay person, concerning Mrs Wolff’s condition throughout the relevant period. (Suzanne Binetter referred to herself in the course of her evidence as a retired dentist. It seems she was retired at least during the period from 2012.)

26. The only other person in a position to give such evidence was Margaret, but she, as Ronald Binetter’s mother, had an insoluble conflict in relation to the litigation and withdrew as her sister’s attorney with respect to any aspect of her sister’s claim against her son. She did not give evidence.

27. There was no complaint on the appeal with respect to the manner in which the trial judge dealt with Suzanne Binetter’s evidence, with one qualification addressed below. It is convenient to deal with her evidence by setting out the judge’s findings. [9] Those findings commenced in the first part of the judgment, dealing with the loan. They were relevant to the subsequent deterioration of Mrs Wolff’s health and the extent to which it affected her ability to consider and make decisions with respect to any claim she may have had against Ronald Binetter for repayment of the money. In this regard, the judge recounted:

“25   Suzanne stated that ‘[f]rom time to time over the course of the next couple of years’ [that is, from September 2010] Mrs Wolff said to her words [to] the effect: ‘When is Ronny going to give me back my money?’ Suzanne stated that she replied: ‘I don’t know. Why don’t you ask him?’ Suzanne stated that, ‘[a]fter a few years’, Mrs Wolff stopped mentioning the loan to her and that she, ‘struggled with her eyesight and also struggled with her hearing, mobility, respiratory and gastrointestinal function’.

26   In cross‑examination, Suzanne said that Mrs Wolff started asking this within a few weeks of lending Ronald the money and repeated it every ‘fortnight, possibly three weeks thereafter.’ Suzanne said Mrs Wolff continued asking this although with less regularity ‘all the way up to September 2013’. Suzanne agreed that Mrs Wolff raised the loan with her more than 20 times and each time she made the same response.”

9. The judgment contained references to the evidence, which have been omitted in the passages set out below.

28. Suzanne Binetter gave evidence that she did not know, as at April 2014, whether the loan to Ronald had been repaid. The judge expressed some doubt as to whether he could accept that evidence and further whether, given its improbability, he accepted other evidence of Suzanne Binetter. For present purposes, that reservation was not important. The judge concluded this section of the reasons with the following passage:

“31   Further, insofar as it is suggested that Mrs Wolff was not capable of managing her own affairs, this aspect of Suzanne’s evidence, if accepted, reveals that at least throughout the period 2010 to 2013 Mrs Wolff was clearly cognisant of the fact that she had lent money to Ronald, was aware that it had not been paid, sought advice from a trusted confidante about those matters and was capable of understanding the document she signed in April 2014. Further, Suzanne’s evidence that Mrs Wolff did not raise the loan after that time is not surprising given that, on Suzanne’s version, Mrs Wolff had previously raised it more than 20 times with someone she trusted and received no assistance every time.”

29. On 12 March 2018, Ronald Binetter lodged an application with NCAT seeking an order for the appointment of the Public Guardian to manage Mrs Wolff’s affairs. He relied in part on allegations of impropriety by Michael Binetter, Suzanne’s husband, as a company director and to the fact that Michael Binetter was living overseas. He said that Suzanne spent “most of her time” with her husband. When proceedings were commenced, Suzanne Binetter was overseas, but returned immediately to Australia.

30. The judge’s summary of events continued:

“34   Suzanne was emailed these applications [to NCAT] on or around 8 April 2018. She was overseas at the time. She said that she told Margaret that they had a legal duty to Mrs Wolff to take some action. She returned to Australia on 11 April 2018 and went to see Mrs Wolff. Suzanne told Mrs Wolff that a legal matter had arisen and she needed to obtain legal representation. Suzanne’s evidence was that Mrs Wolff’s ‘first reaction was how much is it going to cost’. She agreed that Mrs Wolff comprehended what was being asked of her.

35   Suzanne arranged for the plaintiff’s solicitor, Mark Secivanovic of BraddonMarx, to attend on her and Mrs Wolff on 13 April 2018 at Mrs Wolff’s apartment. Suzanne states that, after introductions, ‘Mark met with Mrs Wolff alone’. She said that the three of them then had a ‘general discussion’. She said that during the ‘general discussion’ the following was stated:

‘MS:   Mrs Wolff, has Ron repaid you any of the money?

IW:   No.

MS:   Mrs Wolff, do you want Ron to repay the money?

IW:   Yes.

MS:   Do you want me to get the money back for you?

IW:   Yes.’

36   In her first affidavit Suzanne stated as follows in relation to this conversation:

‘Being involved in Mrs Wolff’s day to day affairs at this time and having day to day contact with her, I verily believe that she [Ie Mrs Wolff] understood the substance of the conversation with Mark [Secivanovic] deposed to above, and indicated to Mark her true intentions in respect of the loan.’

37   Suzanne also stated that in ‘mid to late April 2018’ she and Margaret as ‘attorneys for Mrs Wolff’ instructed Mr Secivanovic to issue a demand to Ronald to repay $1,000,000.00. A letter of demand was sent on or about 27 April 2018.”

31. The trial judge returned to Suzanne Binetter’s evidence when considering Mrs Wolff’s disabilities. This was summarised in the following passages:

“103   In her second affidavit, Suzanne set out various observations of Mrs Wolff’s medical condition and cognitive functioning during the period 2010 to 2018. She said that while she travelled overseas during this period, she spent the majority of her time in Australia. Suzanne said that while she was in this country [she would] visit Mrs Wolff on average two or three times per week.

104   Suzanne said that as at September 2010, Mrs Wolff had difficulty in walking, hearing, complained her food was tasteless, had limited vision and only chose to read when it was ‘absolutely necessary such as reading an item to which her signature was required.’ Suzanne stated that she sat next to Mrs Wolff at meal times to assist her with cutting up her food. Suzanne stated that during 2011 and 2012 aspects of Mrs Wolff’s behaviour became erratic with her sometimes buying an item and then requiring it be returned. She also described Mrs Wolff as becoming ‘noticeably forgetful’.

105   Suzanne said that during 2013 Mrs Wolff’s health continued to deteriorate, especially her hearing, eyesight and continence. She described continued deterioration of these faculties in 2014 and 2015. Further, she described instances of apparent memory failure in 2014 and 2015 where she forgot conversations soon after they occurred.

106   Suzanne also described an incident in 2015 where Mrs Wolff conveyed seeing hallucination[s] such as ‘elephants walking up the wall’ and in 2016 and 2017 where she insisted on being taken to the police station to have her identity confirmed. According to a discharge summary, on 29 August 2016 Mrs Wolff was admitted to St Vincent’s Hospital and presented with ‘confusion and visual hallucinations’ including that she “could see people in a swimming pool and things on the wall”. The principal diagnosis was ‘Delirium/Dementia’ and under the heading ‘Dementia’, the notes stated that she was ‘cognitively impaired with rigid thought process’.

107   Suzanne recounted similar instances of failing to remember conversations during 2017. As for 2018, Suzanne stated:

‘In 2018 Ida was essentially bedridden and was essential[y] non-communicative. Her sustenance was poor as she refused to eat most of the meals which were prepared for her.’

108   Mrs Wolff was hospitalised on 9 May 2018 and entered respite care on 20 May 2018. Suzanne said that when she visited Mrs Wolff thereafter, she was mostly ‘non-responsive to communication’.”

32. The judge not only accepted this evidence, but placed significant weight upon it. The judge observed that the estate had placed reliance on the role of Suzanne Binetter in looking after Mrs Wolff’s financial and personal affairs and on her evidence as to Mrs Wolff’s disabilities. Finally, the judge returned to Suzanne Binetter’s evidence in a passage which was challenged by the appellant and should be set out in full:

“129   As noted, Suzanne gave evidence of her observations in relation to Mrs Wolff’s deteriorating cognitive functioning and general impairments generally. However, her evidence concerning Mrs Wolff’s understanding and capacity to manage her affairs in relation to the particular cause of action the subject of these proceedings is all the one way. Suzanne said that from 2010 to 2013 Mrs Wolff repeatedly raised with her the loan to Ronald and the fact that it was not paid back. When the topic was raised with her again in April 2018 by Mr Secivanovic, Mrs Wolff understood precisely what was being asked of her and provided clear instructions for its recovery. The absence of any discussion about the outstanding loan in the intervening period is explicable on the basis of Suzanne’s failure to provide any meaningful response to Mrs Wolff’s repeated queries. In addition, there is Suzanne’s evidence that her response about the necessity to obtain legal representation was to inquire about the cost of doing so; that was a perfectly rational response.”

33. It will be convenient to return to this passage after addressing the other evidence relied upon by the trial judge.

Reports of treating doctors

34. In this Court, the appellant’s case was that “Mrs Wolff had severe cognitive impairment from 2016, and such conclusion is sufficient to establish that she was a disabled person”. [10] By that, the appellant meant that she was under a disability from no later than May 2016, a few months before the expiration of the limitation period on 20 September 2016. More aggressively, the amended notice of appeal suggested that Mrs Wolff was under a disability “from October 2014 onwards, or alternatively, from May 2016 onwards, or alternatively, from June 2016 onwards”: ground 4A.

    10. Appellant’s written submissions, 24 July 2022, par 40.

35. Dr Eikens, who reviewed the extensive medical records relating to Mrs Wolff, provided a summary which included the following propositions: [11]

“Ms Wolff had several conditions prior to 2010 predisposing to cognitive impairment which would be cumulative over time and would be expected to lead to significant cognitive impairment (Hypertension atherosclerotic cerebral and coronary vascular disease, strokes, diabetes mellitus, visual impairment and Depression). The most definitive evidence of cognitive impairment from 2014 would be neuroimaging documentation of cerebral infarcts in the left parietal and right occipital lobe, as well as widespread chronic microvascular ischaemic changes….

Although there is no documentation of Ms Wolff having significant cognitive impairment in 2009, it is likely, based on her neuroimaging findings of extensive white matter lesions and a parietal stroke, that she would have had some cognitive impairment, but severity cannot be determined. There is reference in St Vincent’s Hospital records [in] October 2014, of Ms Wolff having cognitive impairments: From 2015 there is documentation of moderate cognitive impairment, and from 2016 documentation of severe cognitive impairment. Although cognitive function testing on 3.2.2015 suggested mild dementia with moderate memory loss and impaired problem solving, testing on 15.6.2016 disclosed a score consistent with severe cognitive impairment with limited capacity to make judgments and severe memory impairment/disorientation. Ms Wolff’s cognitive scores in 2016 may not be entirely accurate (even taking into account her severe visual impairment) due to her additional hearing impairment and Depression which may have contributed to a lower score. However, even allowing for these factors, based on the medical records of her general medical condition from 2014, through to 2018, it is very likely that Ms Wolff had moderate to severe cognitive impairment from 2016 until her death in September 2018.”

11. Report, Dr Luba Eikens, 15 July 2020, p 7.

36. In one sense, it would not be fruitful to repeat an analysis of the contemporaneous medical records to establish from time to time the degree of disability under which Mrs Wolff laboured. If the analysis differed from Dr Eikens’ assessment, it would be a view based on the same medical records without Dr Eikens’ experience and expertise. Further, such an analysis would suffer from the same limitation which affected Dr Eikens’ opinions, namely that she had never treated, or even met, Mrs Wolff.

37. However, the trial judge had the benefit of contemporaneous evidence (of the kind summarised above) as to the activities Mrs Wolff was in fact able to perform from time to time and the assessment of her capacities by those caring for her. For example, the fact that in April 2018 Suzanne Binetter, who knew her best of all the lay witnesses, thought it appropriate to obtain her instructions in relation to the guardianship application and the possibility of recovering the loan from Ronald Binetter, gives rise to an inference that she at least thought Mrs Wolff was capable of giving rational instructions in relation to such matters.

38. Further, the medical records did not provide a uniform picture of the expert assessments of Mrs Wolff’s conditions. That may in part have been a function of the fact that her condition was variable and different practitioners saw her at different times and in different circumstances. While it is apparent, and was no doubt predictable, that her level of cognition would deteriorate with time, the evidence did not demonstrate a measurable or regular rate of deterioration.

39. Accordingly, it is desirable to set out briefly the key points of the medical record.

40. On 14 May 2012, Mrs Wolff’s general practitioner, Dr Terkasher referred Mrs Wolff to Dr Tuly Rosenfeld, a consultant geriatrician and physician, for assessment of visual hallucinations. Having seen Mrs Wolff, accompanied by Suzanne Binetter, on 8 August 2012, Dr Rosenfeld reported that, whilst Mrs Wolff “was able to give a reasonable account of the history [of her condition]”, Suzanne helped considerably. Dr Rosenfeld continued:

“She has been concerned about her worsening eyesight and there have been episodes of what appear to have been hallucinations. On one occasion about a year or so ago she began to see animals and on another occasion about two years ago she saw people with ‘big eyes and big noses’ walking around her bed. This occurred for about four days but then passed off and has not recurred.

About two weeks ago she began to see patterns on the walls. She hasn’t been particularly troubled by the patterns and according to Suzanne these have not led to any specific problems.”

41. Dr Rosenfeld referred to a history of transient ischaemic attacks and noted that there had been a cerebral CT scan in May 2012. He stated that this scan showed “a significant atrophy and white matter disease”. There was also “hypodensity within the left occipital lobe region”. Dr Rosenfeld noted that they had “discussed at some length the nature and effect of the hallucinations or rather the aberrant visual symptoms”. No specific treatment was recommended at that time.

42. Understandably, this report was not relied upon as demonstrating a relevant level of disability in relation to legal affairs, but it demonstrates the existence of particular conditions (including white matter hypodensity) which were relied upon later as suggesting a level of disability.

41. Mrs Wolff had seen her general practitioner, Dr Terkasher, on innumerable occasions between June 1990 and August 2018. Over the last decade, Mrs Wolff made at least monthly visits to her general practitioner. However, as Dr Eikens recorded in her report of 15 July 2020:

“General practice records by Dr Terkasher from 27.6.1990 to 30.8.2018 do not refer to symptoms suggestive of cognitive dysfunction, apart from references to mood changes of depression in 1998, 2001 and 2018.”

44. Mrs Wolff was admitted to St Vincent’s Hospital for four days in October 2014 in relation to apparent transient ischaemic attacks. On 21 May 2014, Dr Dennis Kuchar, a consultant cardiologist associated with St Vincent’s, provided a report to Dr Terkasher. The report noted amongst other things visual hallucinations, but made no clear diagnosis. She was described as having “stable cardiac function”.

45. Mrs Wolff was admitted to St Vincent’s Hospital following a fall, for five days in May 2015. The Hospital discharge summary dated 25 May 2015 noted “[t]he brain is essentially unchanged since 11/10/2014”.

46. On 30 May 2016, Dr Terkasher issued a request for consultation to the “Geriatric Flying Squad” in relation to Mrs Wolff, identifying numerous reasons for referral including dementia and “very confused”. The past history noted in the referral included, against the date 29 January 2005, “vascular dementia” and “depression”. The Court was not taken to any documentation in relation to the diagnosis of vascular dementia in 2005, nor as to the circumstances of the diagnosis. Nothing more can be made of the entry in the general practitioner’s record, other than to note the caution with which such records should be treated.

47. On 15 June 2016, Dr Tim Foley, working with the psychogeriatric mental health service at St Vincent’s Hospital, reported to Dr Terkasher, noting:

“She was recently admitted to St Vincent’s Hospital with worsening visual hallucinations. She was diagnosed with delirium secondary to presumed urinary tract infection … . On further questioning she reports 15-months of visual hallucinations. They include normal looking women and men, whom she does not recognise, walking around her unit. She is not scared by the hallucinations and understands they are not real, however she does find them distressing.

In regards to depression she reports feeling lonely and unhappy; however she also doesn’t want any visitors … .

On review she scored 6/17 on MoCA-Blind, with no evidence of superimposed delirium. She had not signs of psychosis i.e. thought disorder, delusions or auditory hallucinations and has excellent insight. There was no evidence of melancholic depression.”

48. The MoCA-Blind test refers to the Montreal Cognitive Assessment test administered by voice for persons with visual impairment. The significance of the score was a matter for interpretation and will be discussed in dealing with Dr Eikens’ evidence. The visual hallucinations were said by Dr Foley to be “in keeping with Charles Bonnet Syndrome AKA visual release hallucinations”.

49. On 7 June 2016, Catherine Friel (a clinical nurse specialist at the psychogeriatric mental health service) described Mrs Wolff as having “mild vascular dementia”, though the notation may merely have been repeating Dr Terkasher’s history. The same diagnosis appears in a note created on 8 August 2016 by Dr Yu-Tang Shen, a psychogeriatric registrar.

50. On 5 September 2016, Dr Terkasher referred Mrs Wolff to Dr Peter Gonski, a geriatrician, who visited Mrs Wolff at home the following day. He reported to Dr Terkasher in the following terms:

“She is a 95-year-old female who has had a history of severe macular degeneration causing blindness. She is also a diabetic on Metformin. She has had some deterioration in her cognition. There have been two episodes of visual hallucinations. The first coincided with a urinary tract infection. The second was recent and she was admitted to St Vincent’s Hospital. At that time no definite cause of the delirium was determined. The only possibility mentioned on the discharge summary was constipation. She was started on Risperidone.

She being at home the Risperidone has been ceased. Her cognition is improving….

She has a full-time … carer. She gets quite anxious. She does not get depressed. She has quite a strong personality and tends to be definite about decision-making.

…

Mental state testing showed that she was completely orientated. Short-term memory was a little impaired. It was impossible to fully examine her from this point of view due to her visual abnormalities.

There has been a suggestion that she has Charles Bonnet syndrome due to her poor visual acuity. I think this is unlikely since the two episodes of hallucinations are far apart.

Given her neurological signs I suspect she has had a vascular episode. This has probably caused delirium. Apparently no CT brain scan was performed at St Vincent’s.

…

My overall impression is that she has a mild vascular dementia which recently deteriorated due to her delirium secondary to cerebrovascular disease and that her condition may improve a little with time.”

51. There were no further contemporaneous medical reports prior to 20 September 2016. However, Dr Gonski saw Mrs Wolff at home for a second consultation on 17 May 2017. He reported that “[c]ognitively she is much the same”. He thought she had peripheral neuropathy secondary to diabetes.

52. There was no further significant report from any geriatrician or neurologist before May 2018. It will be recalled that the statement of claim was issued on 28 May 2018, some 20 months after the expiration of the limitation period.

53. If this were the total of the evidence capable of demonstrating disability, it would be unremarkable that the trial judge was not satisfied that any relevant disability had been established prior to 20 September 2016. The next question is whether that conclusion should be reconsidered in the light of Dr Eikens’ report and evidence.

Geriatrician’s report

54. Dr Eikens was a rehabilitation physician. Her summary of the medical documentation has been set out above. Her final conclusion read as follows:

“In summary, from available documentation, up to and including 2009-2010 Ms Wolff had no clinical evidence of significant cognitive impairment but based on neuroimaging findings it is most likely she had some degree of cognitive impairment. Whether she would have been able to understand legal advice and provide sufficient instruction to a lawyer prior to 2010 cannot be determined from the records. From October 2014 and early 2015 it is likely that Mrs Wolff had significant cognitive impairment which most likely [would] have hindered her understanding of complex legal issues. However, from 5^th May 2016 until her death in September 2018 Mrs Wolff would most likely have had severe impairment in her ability to manage and/or control her own affairs based on CT brain scan findings, her frequent episodes of delirium/confusion, cognitive function testing as well as impaired self-care and mobility.”

55. Dr Eikens had been invited to identify whether Mrs Wolff suffered from physical or mental difficulties or impairments, if so when, and to “describe whether these physical or mental impairments would have substantially impeded Ms Wolff’s ability to manage or control her own affairs”. No doubt the solicitor appreciated that those questions did not directly address the test of being “under a disability” for the purposes of the Limitation Act, and added a further question, namely to identify the times between 2010 and 2016 in which Mrs Wolff “would not have been able to:

1. reason normally about matters set out in the amended statement of claim;

2. understand and consider legal advice in respect of those matters and the conduct of the proceedings generally; and/or

3. provide sufficient instructions to a lawyer in respect of those matters.”

56. Dr Eikens’ conclusions set out above referred to a hindered understanding of “complex legal issues” from late 2014 into early 2015, and then, from 5 May 2016, “severe impairment in her ability to manage and/or control her own affairs”. As the trial judge noted, that conclusion did not address with specificity Mrs Wolff’s capacity to give instructions in relation to the commencement of proceedings. [12] Nor did the judge consider that the legal issues involved in the case were “complex”. There were no doubt difficulties in asking a rehabilitation physician to address such questions, but that consideration suggests that the focus of the appeal must be on the evaluative exercise undertaken by the trial judge based on all of the evidence. Dr Eikens’ opinions were no doubt an important part of that exercise, but they were, nevertheless, only one part. The implication in ground 3 of the appeal that Dr Eikens’ conclusions answered the question posed by s 11(3) was not sound.

    12. Binetter at [128].

57. Dr Eikens provided a second report on 1 August 2020, three weeks before the commencement of the trial. The letter of instruction, which appeared not to be in the material before this Court, sought a further response to the matters raised in the earlier letter after considering documents produced by Dr Rosenfeld. Dr Eikens noted the matters set out in Dr Rosenfeld’s report, including a Mini Mental Status Examination (MMSE) conducted on 7 August 2012. She noted that not all items on the test were administered because of Mrs Wolff’s visual impairment. Thus, out of a possible score of 30, she “achieved a score of 15/24, she was disoriented in time, had mild-moderate impairment of memory and calculation.” Acknowledging that the MMSE is a screening test and “not a comprehensive assessment of cognitive dysfunction”, Dr Eikens said that the score “suggests that in 2012 Ms Wolff had mild-moderate dementia”. She further noted that the score was consistent with that obtained by Dr Jankelowitz on 3 February 2015 of 18/25. Dr Eikens noted that by 15 June 2016 Mrs Wolff had achieved a score of 6/17 on the Montreal Cognitive Assessment–Blind Scale, a score “consistent with severe cognitive impairment”. Dr Eikens opined that that test “may be” more accurate than the MMSE for people with severe visual impairment. She continued:

“It is possible that had the MoCA-Blind testing been administered before 2016, Ms Wolff would have also achieved a low score suggestive of moderate to severe cognitive impairment.”

58. Apart from the last sentence, which was speculative, Dr Eikens stated:

“In summary, from August 2012 it is likely that Ms Wolff had significant cognitive impairment which most likely would have hindered her understanding of complex legal issues.”

59. In other respects she confirmed her earlier opinions. The effect of the supplementary report was to take the timing of significant cognitive impairment back to the date of Dr Rosenfeld’s examination.

60. There was an issue as to what matters were appropriately given weight for the purpose of Dr Eikens’ opinions. Dr Eikens stated in her first report that “[t]he most definitive evidence of cognitive impairment from 2014 would be neuroimaging documentation of cerebral infarcts in the left parietal and right occipital lobe, as well as widespread chronic microvascular ischaemic changes”. She continued:

“On review of medical literature, it has been documented that, even when a person recovers from a stroke without clinically apparent cognitive impairment, subsequent cognitive impairment gradually develops and progresses in many patients (evident over 5 years) associated with higher volume of White Matter Hyperintensities.” [13]

13. The disparity between Dr Eikens’ reference to “hyperintensities” and Dr Rosenfeld’s reference to “hypointensities” was apparently not explored, but casts doubt on the relevance of her statement.

61. Dr Eikens attached to her first report four medical papers, two of which dealt with and supported the last observations set out above. A second dealt with associations between visual impairment and cognitive functioning, and the third dealt with mental state evaluation scales. The third paper [14] concluded that there was a correlation between a diminution in visual acuity and cognitive impairment. The study supported the theory that a decline in visual acuity led to a decline in cognitive ability.

    14. D Zheng et al, “Longitudinal Associations Between Visual Impairment and Cognitive Functioning” JAMA Ophthalmol (2018 Sep) 136(9): 989-995.

62. The fourth paper, which received greater attention in the course of the hearing of the appeal, addressed the use of mental status scales to evaluate cognition. [15] The paper suggested that caution must be applied in using such tests beyond their intended purposes. The author stated that “screening mental status scale scores, irrespective of the length of the assessment, represent only a portion of the necessary workup for cognitive impairment or dementia, and should be interpreted in the context of other clinical information when rendering such diagnoses”. The author further noted:

“In particular, intraindividual variance has been seen on repeated testing on both the MMSE and MoCA across shorter intervals in cognitively normal individuals, suggesting that only relatively large declines (≥ three points on the MMSE and ≥ four points in the MoCA) are likely to meaningful.”

15. J Wilterdink, “Mental status scales to evaluate cognition” Walters Kluwer UpToDate (March 2020).

63. The paper further stated that changes in those scales “are less sensitive in detecting longitudinal decline in cognition than formal neuropsychological testing”.

64. Three particular qualifications were relevant in relation to Mrs Wolff. First, there was a correlation between levels of formal education and testing in one’s native language. There was no record of Mrs Wolff’s formal education, but it is known that she often preferred Hungarian to English. Further, the paper stated:

“Most mental status scales focus on testing memory and orientation, as these cognitive domains are often affected early in the course of [Alzheimer’s disease], the most common cause of dementia in older adults. Thus, the test characteristics (sensitivity, specificity, accuracy) are less well defined for other conditions.”

65. The assumption in the present case was that Mrs Wolff suffered from vascular dementia, not Alzheimer’s disease.

66. It should be observed that Dr Eikens did not merely attach the papers; her opinions expressly addressed the qualifications, for example, on the use of mental status scales identified in the paper on that topic.

The reasoning of the trial judge challenged on appeal

Ground 3

67. One of the matters relied upon by the trial judge, as noted above, was the fact that Dr Eikens’ report did not in terms address the test set out in s 11(3) of the Limitation Act. Ground 3, which challenged that passage in the judge’s reasoning has been rejected.

Ground 1

68. That was in fact the second matter relied upon by the trial judge, the first being expressed in the following terms:

“127   In this case, it is necessary to identify the limitations on Dr Eikens’ report. First and foremost, Dr Eikens never saw Mrs Wolff. Instead, the reports of those who did do not provide much support for the plaintiff’s contention. Her general practitioner who saw her regularly did not discuss cognitive dysfunction. Dr Jankelowitz’s report in 2015 suggest her hallucinations ‘may’ have been the result of ‘mild-moderate dementia’. In his report dated February 2016, Dr Foley preferred a diagnosis of Charles Bonnet syndrome and described her insight as ‘excellent’. Associate Professor Gonski’s September 2016 report went no further than suggesting she had ‘mild vascular dementia’ and reiterated that in May 2017.”

69. Ground 1 in the amended notice of appeal sought to identify two errors in that reasoning. The first was in the statement that Dr Eikens did not see Mrs Wolff and assess her condition; the second lay in the proposition that the reports she relied upon did not support her conclusions.

70. As to the first matter, the appellant’s submissions noted that, in cases involving challenges to testamentary capacity, it was often the case that professionals who had not seen the deceased were able to express opinions as to testamentary capacity. That, of course, is true, but there was no challenge to the admissibility or qualifications of Dr Eikens to form opinions. It is also true that in cases involving challenges to testamentary capacity, contemporaneous medical evidence and lay evidence from people who associated with the deceased during his or her lifetime is often a valuable source of relevant information. It was entirely appropriate for the judge to take into account the fact that Dr Eikens was reviewing medical reports which had been provided to her and basing her opinion entirely on those reports, evaluated in accordance with her training and experience.

71. As to the second matter, the trial judge did not criticise Dr Eikens’ opinions on the basis of the other reports, but rather stated that those reports “[did] not provide much support for the plaintiff’s contention”. The plaintiff’s contention had been set out two paragraphs earlier, and was in the following terms:

“125   The plaintiff’s submissions pointed to Mrs Wolff’s impaired eyesight since 2010, her reliance on Suzanne in looking after her financial and personal affairs, the hospital records concerning her lack of mobility and need for a carer, her age in 2016, Suzanne’s evidence of her observation of Mrs Wolff noted above and the various medical reports. Its primary submission was that ‘in light [of] the opinion of Dr Eikens that from October 2014 to early 2015 Mrs Wolff had significant cognitive impairment and that would have rendered her unable to understand complex legal issues [involved in] suing [Ronald] for $1,000,000.00’.”

72. The analysis of the earlier reports has already been discussed. There was no denying, nor did the trial judge purport to deny, that Mrs Wolff suffered, in the period from 2012 until 2016, from a range of medical conditions and accompanying disabilities. Several of her conditions were relevant to her ability to manage her affairs in relation to the proposed cause of action to recover the loan. None of that material, even when read with the analysis provided by Dr Eikens, demonstrated with any degree of clarity that the test in relation to the specific disability relied on under s 11(3) was satisfied. Indeed, for the reasons already given, the better view is that that material did not satisfy the test. The analysis in [127] of the trial judgment was not erroneous.

Ground 3B

73. Ground 3B took issue with the judge’s analysis at [129] which was in the following terms:

“129   As noted, Suzanne gave evidence of her observations in relation to Mrs Wolff’s deteriorating cognitive functioning and general impairments generally. However, her evidence concerning Mrs Wolff’s understanding and capacity to manage her affairs in relation to the particular cause of action the subject of these proceedings is all the one way. Suzanne said that from 2010 to 2013 Mrs Wolff repeatedly raised with her the loan to Ronald and the fact that it was not paid back. When the topic was raised with her again in April 2018 by Mr Secivanovic, Mrs Wolff understood precisely what was being asked of her and provided clear instructions for its recovery. The absence of any discussion about the outstanding loan in the intervening period is explicable on the basis of Suzanne’s failure to provide any meaningful response to Mrs Wolff’s repeated queries. In addition, there is Suzanne’s evidence that her response about the necessity to obtain legal representation was to inquire about the cost of doing so; that was a perfectly rational response.”

74. Ground 3B was expressed as follows:

“3B   The primary judge erred in finding that the evidence of Suzanne Binetter concerning Mrs Wolff’s understanding and capacity to manage her affairs in relation to the particular cause of action the subject of these proceedings was all the one way.”

As the appellant correctly noted in his submissions, the phrase “all the one way” was clearly intended to indicate that her evidence did not support the relevant kind of disability required to suspend the limitation period.

75. There are three points to be made in respect of this criticism. First, the trial judge was not suggesting that Suzanne Binetter did not give evidence indicating that Mrs Wolff had numerous disabilities, some of which, such as her blindness, were continuous. It may be inferred that there was a degree of cognitive impairment which was also continuous. Other afflictions came and went: these included confusion, forgetfulness, delirium. Suzanne Binetter’s evidence in relation to these matters, based on her direct communications with and personal observations of Mrs Wolff, was clear and unequivocal. That was expressly acknowledged by the trial judge in the first sentence at [129].

76. A comparison was then drawn between that evidence and the evidence as to Mrs Wolff’s understanding of her cause of action based on the loan to her nephew, Ronald Binetter. As to that, Suzanne Binetter’s evidence fell into three periods. First, she supported the conclusion that Mrs Wolff firmly believed in September 2010 that she was making a loan to Ronald for a precise amount. Secondly, in the period starting some weeks after making the loan, she was agitated by the fact that it had not been repaid and that she was entitled to be repaid. Thirdly, when the issue arose in 2018, Suzanne Binetter’s description of the conversation between her and Mrs Wolff reflected the propositions that (i) Suzanne Binetter thought Mrs Wolff was capable of giving instructions in relation to recovery of the money; (ii) when she posed the question to Mrs Wolff she got a clear and rational response; and (iii) that response was to obtain legal advice with the purpose of commencing proceedings. It may be observed that the context in which that occurred was the commencement by Ronald of proceedings in NCAT which would, if pursued, have deprived Mrs Wolff of control of her affairs and vested them in the Public Guardian. That step by her nephew probably removed any prior hesitation in taking the course of commencing proceedings against her sister’s son for repayment of the loan.

77. There was no error in this passage in the judge’s reasoning.

Ground 3A

78. Ground 3A stated:

“3A   The primary judge erred in finding that there was no evidence adduced by Suzanne Binetter as to Mrs Wolff’s degree of impairment.”

79. This ground related to the following passage in the judgment:

“130   Consistent with Guthrie at [140] and Harlum at [92], an assessment of whether Mrs Wolff was under a relevant disability is not confined to whether she could answer the three questions posed of her by Suzanne or understood that there would be costs involved in the litigation. However, the onus of proving that she was relevantly disabled rested on the plaintiff. Beyond Suzanne’s evidence of her discussions with Mrs Wolff about the recovery of the loan, there was no evidence adduced of any attempt to take instructions from Mrs Wolff in relation to this litigation or any assessment of her degree of impairment calibrated to what is required by this litigation.”

80. Ground 3A did not accurately reflect the reasoning at [130].

81. Both in written and oral submissions, ground 3A was dealt with on the basis that Suzanne Binetter’s evidence, supported by the medical evidence, demonstrated that Mrs Wolff could not reason normally about all the matters relevant to her cause of action, so as to be able to understand and consider any advice given. The matters included, (a) giving instructions to proceed, (b) entering into a costs agreement and understanding its terms (often detailed with the basis of billing and the client’s rights set out), (c) reviewing a statement of claim, (d) reviewing any defence, (e) giving instructions for an affidavit, (f) reviewing the defendant’s affidavits, including responding where appropriate, (g) considering advice and giving instructions as to expert evidence, and (h) submitting to cross-examination. As the submissions further stated, “[m]any lay litigants who have no disability find these steps complicated and confusing at times”.

82. The trial judge accepted that Mrs Wolff’s capacity needed to extend beyond answering the questions posed by Suzanne Binetter as to her intention to obtain legal representation to pursue her claim. However, as explained above by reference to the reasoning in Guthrie v Spence, the possibility that if proceedings are commenced the plaintiff may need a tutor does not necessarily demonstrate that the plaintiff was under a disability in relation to the commencement of proceedings sufficient to engage the suspension of the limitation period under the Limitation Act. To the extent that the appellant’s submissions suggested a different approach, that should not be accepted. There was no error in the approach adopted by the trial judge in this respect.

Ground 2

83. Further grounds of appeal, not expressly identified above, raised substantially the same criticisms in relation to other aspects of the judge’s reasons. With one exception, none warrants further consideration. The exception is ground 2 which alleged error on the part of the trial judge “in finding limitations in the expert reports served by the appellant in circumstances where the respondent never required the authors of the reports for cross-examination”. The reports in question including those of Drs Jankelowitz, Foley and Gonski.

84. This ground was carefully formulated to suggest that the trial judge “found limitations” with respect to the opinions expressed by experts, but it did not suggest that he rejected their opinions. That was a correct analysis. However, every expert opinion has “limitations”, often identified, but sometimes implicit. The suggestion that a trial judge must ignore such limitations if the expert is not cross-examined about them is manifestly unsound. The same would be true for any suggestion that, absent cross-examination, the judge is obliged to accept whatever conclusion the party tendering the report seeks to draw from it. On one view, the appellant’s case failed because the reports did not provide sufficient support for the particular matter which the appellant was required to prove, based on the limited effect of the expert evidence. Ground 2 needs to be addressed because, if correct, it would presumably not be open to this Court on an appeal by way of rehearing to uphold the findings of the trial judge based on the limited effect of the expert evidence. That reasoning cannot be accepted and ground 2 must be dismissed.

85. However, as the respondent noted, there was a bold assumption underlying ground 2. It was that because there was a power under the Uniform Civil Procedure Rules 2005 (NSW), r 31.29(2), for a party served with expert reports to require the attendance of the expert for cross-examination, there was an obligation to require such attendance if the content of the report were to be the subject of criticism, limitation or challenge. That proposition is not self-evidently correct.

86. Rule 31.29 relevantly provides as follows:

31.29   Admissibility of expert’s report

(1) If an expert’s report is served in accordance with r 31.28 or in accordance with an order of the court, the report is admissible:

(a)   as evidence of the expert’s opinion, and

(b)   if the expert’s direct oral evidence of a fact on which the opinion was based would be admissible, as evidence of that fact,

without further evidence, oral or otherwise.

(2)   Unless the court otherwise orders, a party may require the attendance for cross-examination of the expert by whom the report was prepared by notice served on the party by whom the report was served.

87. It might be expected that the subject matter of r 31.29 was an expert report obtained for the purposes of the litigation, with the common expectation that, if required, the expert would attend and give oral evidence as a witness. However, that understanding may need to be qualified by the fact that r 31.29 deals with reports served “in accordance with r 31.28”. The latter rule is broad in its scope:

31.28   Disclosure of experts’ report and hospital reports

(1)   Each party must serve experts’ reports and hospital reports on each other active party─

(a)   in accordance with any order of the court, or

(b)   if no such order is in force, in accordance with any relevant practice note, or

(c)   if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.

…

(3)   Except by leave of the court, or by consent of the parties─

(a)   an expert’s report or hospital report is not admissible unless it has been served in accordance with this rule, and

(b) without limiting paragraph (a), an expert’s report or hospital report when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and

(c)   the oral expert evidence in chief of any expert is not admissible unless an expert’s report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.

88. As the respondent submitted, it would be a startling proposition if every health professional involved in treating a patient who prepared a document which became part of the hospital records or was sent to a general practitioner, or constituted the records of the general practitioner, became liable to a requirement to attend for cross-examination if the document obtained on subpoena was tendered because it contained an expert opinion.

89. Part 31, Div 2, relating to expert evidence, contains the following definitions:

31.18 Definitions

In this Division—

court-appointed expert means an expert appointed pursuant to rule 31.46.

expert, in relation to any issue, means a person who has such knowledge or experience of, or in connection with, that issue, or issues of the character of that issue, that his or her opinion on that issue would be admissible in evidence.

expert witness means an expert engaged or appointed for the purpose of—

(a)   providing an expert’s report for use as evidence in proceedings or proposed proceedings, or

(b)   giving opinion evidence in proceedings or proposed proceedings.

expert’s report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert’s opinion and the facts, and assumptions of fact, on which the opinion is based.

hospital report means a written statement concerning a patient, made by or on behalf of a hospital, that the party serving the statement intends to adduce in evidence in chief at the trial.

parties’ single expert means an expert engaged pursuant to rule 31.37.

90. If these definitions were applied uniformly through Part 31, Div 2, entirely anomalous results would be achieved. Thus, r 31.27 imposes a set of requirements with respect to “an expert’s report” which self-evidently cannot apply to hospital records and treating health professional reports generally. Further, the main purposes of Part 31, Div 2 are identified in r 31.17 in the following terms:

31.17 Main purposes of Division

The main purposes of this Division are as follows—

(a)   to ensure that the court has control over the giving of expert evidence,

(b)   to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings,

(c)   to avoid unnecessary costs associated with parties to proceedings retaining different experts,

(d)   if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court,

(e)   if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings,

(f)   to declare the duty of an expert witness in relation to the court and the parties to proceedings.

91. These purposes would not be advanced by rendering all treating health professionals liable to be required for attendance for cross-examination in litigation. It is not necessary to determine whether and to what extent r 31.28 applies to such treating doctors and hospital records. Assuming that it applies generally, r 31.29(2) should be read down so as not to permit a party to require the attendance of an expert who was not intended to be a witness in the proceedings.

92. However, it is sufficient for present purposes to observe the limits of the rules. Whilst r 31.28 no doubt limits the circumstances in which otherwise admissible evidence can be adduced in a hearing, it says nothing about the principles governing cross-examination or the effect of not cross-examining the author of a report. It should be inferred that the rule does not intend to undermine the beneficial purposes of s 69 of the Evidence Act 1995 (NSW), rendering business records admissible without the need to call the author of the document.

93. It is, however, sufficient for present purposes to observe that r 31.29(2) imposes no obligation to cross-examine in circumstances where that would not otherwise be thought necessary, nor does it say anything about the use which can be made of a document where the author has not been the subject of cross-examination. For this additional reason, ground 2 was not soundly based.

Other issues

94. By his notice of contention filed on 21 April 2022, the respondent sought to raise two issues. The first, which had not been relied on by the trial judge, was that Mrs Wolff was not under a “disability” for the purposes of s 52 of the Limitation Act at any relevant time from 2 December 2011 when she executed enduring powers of attorney in favour of her sister Margaret Binetter and Suzanne Binetter and appointed Margaret as her enduring guardian. The trial judge noted a similar submission put to him, doubted its correctness but did not need to consider it further as the plaintiff had failed to discharge his onus of proof as to disability at the relevant time. [16] For similar reasons, it is not necessary to determine the contention on the appeal. However, the doubts of the trial judge carry weight.

    16. Binetter at [135].

95. There is nothing in ss 11 and 52 of the Limitation Act to suggest that they are in some way qualified by the existence of legal powers of others to act on behalf of putative plaintiffs. Rather, they are concerned directly and specifically with the personal circumstances of the putative plaintiff and his or her capacities (in particular respects) and abilities. As Campbell JA noted in Guthrie, the circumstances identified in s 11(3) amounting to a relevant disability are far from comprehensive. There are other matters which might excuse a person’s failure to comply with a limitation period which are not included. Similarly, the fact that a person may have appointed another to look after his or her affairs in the event of disability might be thought to undermine the justification for suspending a limitation period with respect to a person under a disability. The Limitation Act does not do that. It should not be given such an effect by implication in the absence of any attempt to reconcile potentially conflicting tests for the engagement of guardianship provisions and the language of s 11(3).

96. The second issue, addressed in the course of submissions, concerned an inference which might have been drawn from the failure of the appellant to call the solicitor, Mr Secivanovic, who took instructions from Mrs Wolff for the commencement of the proceedings. The trial judge declined to draw a Jones v Dunkel inference from the solicitor’s failure to give evidence about what was “arguably” a privileged conversation. [17] The judge continued:

“Nevertheless, the absence of evidence from him or anyone else who may have attempted to speak to Mrs Wolff about the cause of action to assess her capacity and willingness to take the various steps identified in Guthrie simply highlights the difficulties for the plaintiff in discharging [his] onus of proof on this issue.”

17. Binetter at [131].

97. The complaint, somewhat muted, and not addressed in the grounds of appeal, was that the judge had in fact drawn an inference from the absence of the solicitor. However, the statement set out above did not involve an inference of the kind permitted by Jones v Dunkel [18] that the evidence of the solicitor would not have assisted the plaintiff. Arguably such an inference may have been available, but it was not that which the trial judge drew. There was no error in the passage set out above.

    18. (1959) 101 CLR 298 at 308 (Kitto J), 312 (Menzies J) and 320-321 (Windeyer J); [1959] HCA 8.

Conclusions

98. For these reasons, the challenges to the finding of the trial judge that the appellant had not discharged his onus of proof in relation to the suspension of the limitation period[19] must be rejected. The Court should make the following orders:

1. Dismiss the appeal from the judgment and orders made in the Common Law Division.

2. Order that the appellant pay the respondent’s costs in this Court.

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19. Binetter at [134].

Endnotes

Decision last updated: 01 September 2022