Cooke v State of NSW - [2006] NSWSC 655

No judgment structure available for this case.

CITATION: Cooke v State of NSW & Anor [2006] NSWSC 655

HEARING DATE(S): 13, 14, 15, 19 & 20 June 2006

JUDGMENT DATE :
30 June 2006

JURISDICTION: Common Law

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The summons filed 20 March 2001 is dismissed; (2) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS: Extension of time - ss 60G & I - Limitation Act 1969 - adoption of baby in 1962

LEGISLATION CITED: Limitation Act 1969 (NSW) - ss 60G & I

CASES CITED: Arthur v State of Queensland [2004] QSC 456
Barker v Wingo (1972) 407 US 514
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1
BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997)
Christakos Transport Pty Ltd (in Liq) v Croft [2005] NSWCA 472
Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271
Commonwealth of Australia v Nelson [2001] NSWCA 443
Commonwealth v Smith [2005] NSWCA 478
Delta Pty Ltd v Whitefield [2004] NSWCA 220
Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129
Drayton Coal Pty Limited v Drain (Unreported, NSWCA, Gleeson CJ, 22 August 1995)
Harris v Commercial Minerals Ltd (1996) 186 CLR 1
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128
"JX" v "GX" & Ors [2006] NSWCA 167
McGloin v Magann [2005] NSWCA 358
McLean v Sydney Water Corporation [2001] NSWCA 122
Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315
Rutter v State of New South Wales [2005] NSWCA 231
Schering-Plough Pty Limited v Page [2002] NSWCA 4
South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477
State of New South Wales v Knight [2002] NSWCA 185
Sydney City Council v Zeggarac (1998) 43 NSWLR 195
'W' v State of New South Wales (unreported, NSWCA, Master Greenwood, 13 December 1996)
'W' v State of New South Wales (Unreported, NSWSC, Hidden J, 10 July 1997)
'W' v State of New South Wales (Unreported, NSWCA, 15 September 1997)
Yu v Spiers [2001] NSWCA 373

PARTIES:
Cassandra Robyn Cooke
(Plaintiff)
State of New South Wales
(First Defendant)
Benevolent Society of New South Wales
(Second Defendant)

FILE NUMBER(S): SC 10920/2001

COUNSEL:
Mr M Maxwell (Plaintiff)
Mr S A Woods (First Defendant)
Mr M Scott (Second Defendant)

SOLICITORS:
Turner Freeman, Lawyers (Plaintiff)
Frances Allpress (First Defendant)
Henry Davis York (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 30 JUNE 2006

10920/2001 - CASSANDRA ROBYN COOKE v STATE OF NEW SOUTH WALES & ANOR
JUDGMENT (Extension of time – ss 60G & I
- Limitation Act 1969 – adoption of

baby in 1962)

1 HER HONOUR: By summons filed 30 March 2001 the plaintiff seeks an order extending the time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (“the Act”) in relation to the adoption of her child born on 15 September 1962.

2 The plaintiff is Cassandra Robyn Cooke. The first defendant is the State of New South Wales. The second defendant is the Benevolent Society of New South Wales (the Benevolent Society). The plaintiff sues these defendants alleging that as a result of their negligence and misrepresentations made by the second defendant, her child was adopted and now as a result she suffer psychiatric illness. She seeks damages and additionally exemplary and punitive damages from the second defendant.

3 The plaintiff was born on 25 April 1947. She is now 59 years of age. She has been married twice, has two sons and is now divorced.

4 In December 1961 when she was 14 years of age Ms Cooke (then Cassandra Deroubaix) was sexually assaulted on her way home from Beverley Hills High School. The plaintiff has given various differing accounts of the sexual assault. As a result of the assault she fell pregnant. At the time she was living with her parents and older sister in Peakhurst.

5 About nine weeks after the sexual assault occurred the plaintiff became aware that she was pregnant and ran away from home. She was located by the police within one or two days. Her mother did not know that she was pregnant until about 4½ months into the pregnancy. The plaintiff’s parents sent her to a home for unwed mothers at Burwood. Her mother visited her each week but she has little recall of this time.

6 On 15 September 1962 the plaintiff gave birth to a baby daughter who, after discharge from Crown Street Women’s Hospital, was placed in the care of Scarba House. The plaintiff’s baby was subsequently adopted. After the birth of her daughter until 1995 the plaintiff coped reasonably well. She married twice, had two sons and was in regular employment.

7 The plaintiff’s case is that from 1995 onwards memories of the events of 1962 started to emerge. I shall deal with firstly, the threshold requirements; secondly, whether the plaintiff has a real case to advance; and lastly, whether it is just and reasonable to extend the limitation period.

8 On 6 May 1982 and 7 October 1982 the plaintiff contacted Crown Street Women’s Hospital and place her name on the adoption register. The plaintiff now does not have any memory of contact made in 1982. On 6 May 1982, the Crown Street Hospital records show that the plaintiff contacted the Department of Social Work. It shows that Origins had referred the plaintiff to them. She was seeking details of her daughter. The file note recorded that “she would never think about her daughter because the pregnancy resulted from rape, but every Mother’s Day gets very upset, hence her inquiries. [She] has two boys, 15 and 13, and this makes her think of her daughter. Definite that she doesn’t want to disrupt her daughter’s life.”

9 On 7 October 1982 a further hospital file note recorded “Given details about child & pat. [patient]. Very keen for child to know that it was a rape situation & hence the reason for adoption. Very keen also that child see her as a mother.” In the margin of the same note it is written, “note emotional about the situation today remembered a lot of birth details”. [Ex 1D/1 – 90]. The plaintiff says that she has no memory of these 1982 events. It is a complete blank and she has never been able to get memory of them. When she was told of what occurred in 1982 it frightened her a bit, really was quite scary (t 55) and really distressing (t 51).

10 In 1984 the plaintiff consulted a psychiatrist Dr Poulos. While she recalls seeing Dr Poulos, because she was having difficulties with her marriage, she does not recall telling him anything about the rape, the birth or the adoption of her child. Dr Poulos’s notes record (doing the best I can to interpret his handwriting):

rape

11 As previously stated the plaintiff says that it was only during 1995 that she first started to have memories of the rape, birth and adoption of her daughter. Certain triggers would reawaken memories. In 1985, according to Dr Poulos, the plaintiff was really quite well put together and had reorganised her life satisfactorily.

12 In late 1995 the plaintiff had a dream that her legs were tied to the end of the bed. On 25 July 1995 she saw an Oprah Winfrey television show dealing with adoption (see Ex D1/11). The plaintiff’s mother Mrs Deroubaix confirmed that a conversation between her and her daughter occurred in 1995. Her mother telephoned Cassandra who was crying. Cassandra said “I am watching this show on Oprah about adoption and I am crying and I don’t know why”. Mrs Deroubaix asked her “Are you thinking about your daughter?” And she said, “What daughter?”.

13 At this time the plaintiff became emotionally distraught and sought counselling from Lyn Pearl at the Post Adoption Resources Centre (PARC). As a result of Ms Pearl’s advice, the plaintiff obtained a copy of her daughter’s certificate. The plaintiff says she was not able to confront the various difficulties that she had had until after she sought the assistance of a psychiatrist.

14 In late 1995 she was able to contact her daughter Kim who resides in Canada. Kim indicated that she did not want to have any further contact with the plaintiff.

15 In March 1996 the plaintiff was referred to Dr Debra Montgomery, psychiatrist where she underwent psychotherapy. At this time, Dr Montgomery reported that the plaintiff had been “deeply depressed and suicidal” over previous months. Dr Montgomery stated:

16 Dr Montgomery’s view has be read in the light of what the plaintiff said in about 1996 in her submission to the Standing Committee of Social Issues, to the Legislative Council of New South Wales (Ex 1D/4).

“My mother and father are still hurting there are lot of people that this has damaged or destroyed, my whole family and the only one that seems to be happy are the people that took my child. I have been having psychiatric counselling since 1996. In the last four years I have only worked approximately 18 months, because every time I take a step to heal I would be in tears and unable to work as I would suffer from depression as well. But my life was such a disaster I has to finally face the anger and pain which I had put into a little box.

…

I would also like to add why am I being punished and put through tough and painful times. Because of other people’s errors and selfishness and why should our babies be given to strangers to make their life fulfilled and leave us empty. They might as well have shot us as I can’t take this anymore. This is far beyond the call of love and motherhood. I hope you can give me some answers to help me out of this maze and pain.”

17 I accept that the latter paragraph refers to the plaintiff’s state of mind in 1998. Nevertheless, from the above passage, in 1996 the plaintiff at a time when she was under the care of a psychiatrist was aware that she suffered from depression.

18 On about 13 November 1996 the plaintiff found out that her baby had been adopted out approximately 13 months after she had been born.

19 Between mid 1998 and mid 1999 the plaintiff’s condition improved. The plaintiff returned to work so contact was made with Dr Montgomery by way of occasional telephone calls.

20 In April or May 1998, as a result of seeing programs on Channel 7 and Channel 10 dealing with adoption practices in the 1960’s, the plaintiff became aware that there might have been some things that were done which were not proper as far as the adoption of her child was concerned.

21 In 1998 the plaintiff made a submission to the Standing Committee. She admitted that this version of events was made upon her interpretation of the medical records not from actual recollections. The contents of this document are referred to elsewhere in this judgment.

22 In mid 1999 Dr Montgomery reported that the plaintiff’s physical and emotional health deteriorated and that she was unable to work and required psychiatric assistance.

23 Dr Montgomery reported [8/11/1999]:

“At the time of referral she was experiencing a number of stressful life-events, including ill-health in the form of chronic lower back pain, dismissal from her job of ten years and financial hardship. At around this time she had also made contact with her adopted daughter Kim and this had not gone well. At that time I treated her with anti-depressant medication and supportive psychotherapy and she subsequently improved sufficiently to return to work. Ms Cooke began dealing with the trauma of conceiving a child as the result of a violent rape and then being pressured to relinquish her baby for adoption. For many years she had repressed these memories but in the past year in particular she has suffered worsening depression, anxiety and physical symptoms of psychological distress. Her overall level of functioning has deteriorated very significantly over this time and certainly she is not coping with the day-to-day demands placed upon her anywhere near as well as she was only several years ago. She continues on antidepressant medication and now finds she also requires regular analgesia for chronic back pain in addition to Diazepam for anxiety. Her psychiatric symptoms meet diagnostic criteria for a number of conditions including Major Depression, Dysthymia, Dissociative Disorder and Post-Traumatic Stress Disorder (delayed).”

24 On 7 October 1998 the plaintiff arranged to see her current solicitors who referred her to Dr Rickarby. The plaintiff says that it was only after seeing her solicitor that she became aware that she was entitled to bring proceedings if it is shown that either of the defendants had not properly provided her with advice and/or appropriate treatment.

25 On 19 April 1999 the plaintiff consulted Dr Rickarby who reported:

“With the blanketing Dissociative Disorder, where her memories of what was done to her was split off, and where she was having a highly distressing time coming to terms with the fact that her baby was taken from her and then as an adult was rejecting her, she only found … and the connections to her disorder when she was in contact with the Origins Group after seeing the programme on Channel 10 in 1998.” [report, 25/05/2006]

“Ms Cooke from the beginning has described blocks (as in large pieces) of memory being missing. As the dissociative mechanism arises to protect consciousness from unbearable events and their accompanying affects, it may vary from time to time, or even day to day if an aspect of unintegrated personality moiety is conscious to remember the data. Underlying this there is a large amount of energy used to protect the self from untenable thoughts and feelings, as well as personality disorganization – even chaos.” [report, 16/06/2006]

26 Dr Rickarby explained that the concept of integrated personality moiety involved the circumstance where a person had some piece of information that did not fit within their world view and they block that piece of information out or forgot it (t 135.4-8).

27 In February 1999 the plaintiff received a copy of the Consent to Adoption document dated 11 December 1962 from the Supreme Court.

28 On 4 June 1999 the plaintiff lodged an application for victim’s compensation (Ex 1D/7). At paragraph [13] she stated that it was in about April 1998 that she finally became aware of what had happened to her and it was later even still before the details of the rape could be properly recalled by her. It was not until January 1999 that she was able to face reporting the rape to the police.

29 On 30 March 2001 the plaintiff filed a summons seeking an extension of time.

30 The plaintiff relies on s 60G and s 60I (1)(a)(i)-(iii) of the Limitation Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997); Sydney City Council v Zegarac (1998) 43 NSWLR 195; Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128; McLean v Sydney Water Corporation [2001] NSWCA 122; Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315; Yu v Spiers [2001] NSWCA 373; Schering-Plough Pty Limited v Page [2002] NSWCA 4; Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271; Delta Pty Ltd v Whitefield [2004] NSWCA 220; Rutter v State of New South Wales [2005] NSWCA 231; Christakos Transport Pty Ltd (in liq) v Croft [2005] NSWCA 472. The onus rests with the applicant. In addition to satisfying the relevant threshold requirements, it must be shown that it is just and reasonable to make an order.

31 The parties referred to ‘W’ v State of New South Wales (Unreported, NSWSC, Master Greenwood, 13 December 1996); ‘W’ v State of New South Wales (Unreported, NSWSC, Hidden J, 10 July 1997); ‘W’ v State of New South Wales (Unreported, NSWCA, 15 September 1997); and Arthur v State of Queensland [2004] QSC 456 which specifically deal with adoption and adoption practices in the 1960’s and 1970’s.

32 The procedure provided by this group of provisions is available for causes of action that accrue after 1 September 1990; but “also (by the operation of Schedule 5) for causes of action that accrued before that date” (s 60F).

33 Schedule 5 provides by clause 4(1) that:

“Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990…”;

(a) the period of three years referred to in s 60I; or

(b) the period of three years commencing 1 September 1990.”

34 The application to extend time was made on 30 March 2001, which is outside the time stipulated in clause 4(4)(b). The application can only succeed if that date is shown to be “within the period of three years referred to in s 60I”.

35 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, “for such a period as it determines”.

36 The relevant provisions of s 60I are as follows:

(i) did not know that personal injury had been suffered; or

(ii) was unaware of the nature or extent of personal injury suffered; or

(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and

37 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that:

(1) As at 25 April 1974 (the expiration of the relevant limitation period) she was unaware of one or more of the matters identified in s 60I (1)(a)(i), (ii) or (iii);

38 The practical effect is to require the plaintiff to identify specifically what fact or facts she claims not to have known as at 20 March 1998, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I (1)(a); and to show by evidence the date on which she acquired knowledge thereof (being a date later than 20 March 1998); or to show that that fact was or those facts were still unknown to her on that date. The defendants did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I (1)(b). There was no dispute that the plaintiff had acquired the requisite knowledge prior to the expiration of the limitation period, namely 25 April 1974.

39 Counsel indicated that the plaintiff relied on s 60I(1) (a)(i), (ii) and (iii). The second defendant relied upon what it says are admissions contained in the plaintiff’s answer to particulars dated 17 June 2003 in which it concedes that she knew that personal injury had been suffered prior to 30 March 1998 and that she was aware of the connection between the personal injury and the defendant’s act or omission before 30 March 1998. It is my view that this statement written in a letter by the plaintiff’s solicitor answering particulars does not amount to an admission.

40 The knowledge required by s 60I(1)(a)(i) is actual knowledge – see Commonwealth v Smith [2005] NSWCA 478 at [101] and Harris v Commercial Minerals Ltd (1996) 186 CLR 1.

41 Commonwealth of Australia v Smith concerns an appeal against a time extension for a psychological injury claim arising from the collision between HMAS Melbourne and HMAS Voyager. Handley JA, at [7], noted that where an extension of the limitation period is sought in a case of mental injury the question is whether the victim was aware that he or she suffered from a recognisable psychiatric illness. Santow JA (with whom Handley and Basten JJA agreed) affirmed the finding of the primary judge that the plaintiff did not know that he had suffered a mental injury until he read a psychologist’s report (at [21], [99] and [192]). This approach is the same as in Commonwealth v Dinnison (1995) 56 FCR 389; (1995) 129 ALR 239.

42 It is my view that the plaintiff knew that she had suffered a personal injury in 1996. At that time she was seeing a psychiatrist and in her submission to the Standing Committee she referred to having depression and having had psychiatric counselling since 1996. The plaintiff’s claim under s 60I(1)(a)(i) fails.

43 The extent of the injury is to be determined at the date of the hearing the application for an extension of time and not the expiration of the limitation period - see Harris at 12 per Dawson, Toohey, Gaudron, McHugh and Gummow JJ and State of New South Wales v Knight [2002] NSWCA 185.

44 A plaintiff may be held to have been aware of the nature or extent of her/his injury within the relevant period if during that period s/he was aware of the effect, which the injury was then having upon her/him, and of its likely future course, even though s/he may have been unaware of the precise pathology or medical diagnosis. On the other hand, knowledge of the medical diagnosis will not itself amount to knowledge of the nature or extent of the injury if the plaintiff is unaware of significant aspects of the prognosis, for example that the injury is permanent and will not be amenable to treatment; or that it may deteriorate with the passage of time. As long as the consequences are of a kind that the plaintiff expects, the plaintiff will be aware of the extent of the injury – see Harris.

45 The words “become aware” means that the plaintiff must have knowledge and awareness of the fact that such a statement was given – see Harris and Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 at 151.

46 The defendants referred to Commonwealth of Australia v Nelson [2001] NSWCA 443 at [79] where Rolfe AJA said:

“In the result, I am of the view that Mr Nelson was aware of all the symptoms from which he was suffering and, therefore, the extent of his personal injuries. The mere fact that he was not aware that those symptoms could be characterised as Post Traumatic Stress does not, conformably with the authorities to which I have referred, lead to the conclusion that he was unaware of the extent of the personal injuries. It would be, in my opinion, an extraordinary result if, having the awareness he did, he could nonetheless overcome the problems created by subs (a)(ii) because doctors’ views varied as to the way in which the problem was described.”

47 By this time the plaintiff’s memories were no longer being repressed. In 1999, the plaintiff’s depression worsened. I accept that the plaintiff was already aware that she suffered from depression. She was also suffering from anxiety and psychological distress. Her overall level of functioning had deteriorated to the point where she was no longer coping with the day to day demands placed upon her. In 1999, in additional to major depression, the plaintiff was diagnosed as suffering from dysthymia dissociative disorder and Post Traumatic Stress Disorder (Delayed) (PTSD) by Dr Montgomery. Likewise, in 1999 Dr Rickarby diagnosed the plaintiff as suffering from major depression, PTSD (chronic), dissociative disorder (now decompensated), pathological grief, benzodiazepine dependency and personality damage due to the rape and loss of her baby and the long term sequelae of these events.

48 In terms of awareness, in 1999 the plaintiff was no longer able to block out memories concerning the adoption and the events surrounding the adoption. She had to confront and deal with them. In 1999 the diagnosis of dissociative disorder was made. This explains why the plaintiff was able to talk about the rape, birth and adoption of her daughter in 1982 and 1984, yet not have any memory of doing so. He mental state had significantly deteriorated. In my view it was only in 1999 that the plaintiff became aware of the extent of her injuries. The plaintiff acquired the requisite knowledge under s 60I(1)(a)(ii) within the prescribed time. The plaintiff has passed through the s 60I(1)(a)(ii) gateway.

49 Section 60I (1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. The acts or omissions referred to in s 60I (1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s 60G. Those acts or omissions will be found in the plaintiff’s particulars of negligence - Drayton Coal Pty Limited v Drain (Unreported, NSWCA, Gleeson CJ, 22 August 1995).

50 The plaintiff submitted that she was unaware of the connection between the personal injury and the defendants’ acts or omissions until 7 October 1998 when she consulted her solicitor Dr Della Marta. It was then that she became aware that she was entitled to bring proceedings if it is shown that either of the defendants had not properly provided her with advice and/or appropriate treatment. While the plaintiff has not specifically given dates that she became aware of specific particulars of negligence, I accept that she was unaware of the connection between personal injury and the defendants’ act or omissions until 7 October 1998. Blame does not equate with existence of acts or omissions. The plaintiff acquired the requisite knowledge under s 60I(1)(a)(iii) within the time stipulated.

51 The plaintiff has passed through the s 60I (1)(a)(ii) and (iii) gateways.

52 If I am wrong I will consider s 60I(1)(b) in relation to the s 60I(1)(a)(ii) and (iii) gateways. For the purposes of s 60I(1)(b) of the Act, did the plaintiff become aware, or ought to have become aware, of the matters listed in s 60I(1)(a) at the time of the expiration of the limitation period (or earlier when proceedings might reasonably have been instituted)? What a person ought to know or be aware of for the purposes of s 601(I)(b) must necessarily take account of the circumstances of the particular applicant - see Rea. The question is what a person with the actual qualities of the particular plaintiff should have done in the circumstances –per Santow JA (Handley JA agreeing). Relevant factors may include the effect of the applicant’s mental impairment, instructions (if any) not to discuss the matter or circumstances bearing on the applicant’s capacity to consult a psychiatrist. Personal characteristics such as shyness and embarrassment, which inhibit a person from seeking knowledge about his condition, are also relevant – see Commonwealth v Smith at [103], [109] and [110] per Santow JA (Handley JA agreeing).

53 According to Dr Rickarby, one of the features of the plaintiff’s psychiatric condition, namely dissociative disorder, is that even when she obtained some piece of information, which did not fit in with her world view, she would block it out or forget it. Taking into account the effect of dissociative disorder, it is my view that it cannot be said that the plaintiff ought to have become aware of the extent of her injury at an earlier date. Nor can it be said that the plaintiff ought to have become aware of the connection between personal injury and the defendants’ acts or omissions prior to seeing her solicitor in October 1998. It is appreciated that the plaintiff was aware she had depression and she had had her baby adopted out prior to 1998 but I do not think she was in a psychological position to see a solicitor and act on his advice prior to October 1998.

54 From 14 May 1962 onwards the plaintiff attended the out patients clinic for prenatal checkups in relation to the pregnancy. From 7 July 1962 until 11 July 1962, when she was approximately seven months pregnant the plaintiff had a haemorrhage and was admitted to Crown Street Women’s Hospital.

55 On 10 September 1962 the plaintiff was admitted to Crown Street for the birth of her child. On 15 September 1962 the plaintiff’s daughter was born. On 25 September 1962 the plaintiff was discharged from hospital.

56 During the birth of her daughter the plaintiff now recalls being in a darkened room with a mask on her face and her legs in stirrups. She was trying to look up to see the baby but was pushed back down by a nurse who put a pillow under her chin. She recalled hearing someone say in the delivery room words to the effect “You can’t see the baby it’s going out for adoption”. The plaintiff recalled replying, “You can’t do that”. She then asked if the baby was a boy or a girl but her question was ignored. She did not hear the baby cry and thought the child was dead. Immediately following the birth the plaintiff was taken to another room. She picked up her chart and read it and this is how she found out that the baby was a girl.

57 The plaintiff recalled on the fifth day after the birth of her daughter her parents telling her that they had decided to adopt her baby and the plaintiff heard them tell the hospital staff words to the effect “Give her the child”. From that time onwards the plaintiff had the baby next to her bed. On 16 September 1962 the hospital records indicate that the baby was placed next to the plaintiff’s bed on the second day after the birth when she asked to see her baby. When the plaintiff was asked to look at the medical records she conceded that this could have occurred on the second day after the birth.

58 In her statement to the Standing Committee of Social Issues, NSW Legislative Council (Ex 1D/4) the plaintiff says that she was drugged from the time she was admitted until the time of discharge on 24 September 1962. The plaintiff says:

“I remember them putting a pillow over my chest when I gave birth to my baby on the 15/9/62, they took the baby away so fast I did not even hear it cry. I asked the Doctor could I see my child and what sex was it. The doctor said we don’t tell the sex or let you see it, this baby is going out for adoption. I felt my child come out of my body, and they would not even let me see my child, they made me fell like a worthless piece of garbage.

I was then taken to a ward with other women who had their babies next to their beds. I will never forget how that felt, (traumatic and painful). I was given tablets to dry up my milk without my consent. On about the 6th day my parents came to me and told me they had decided to adopt her, but I would have to put her at Scabra (sic) until they moved house. The hospital then gave me my child.”

59 Ethel Deroubaix is the plaintiff’s mother. She has sworn three affidavits dated 15 June 2001, 26 July 2005 and 5 June 2005 and was cross examined. Mrs Deroubaix was an elegantly dressed lady who was in a wheelchair. She gave evidence that she visited her daughter at the unwed mothers’ home prior to the birth every Saturday but that she only went to Crown Street Hospital for the birth of her daughter’s child and after the birth she visited mostly every night. Mrs Deroubaix deposed that on the second night after the birth Cassandra said to her “they won’t allow me to see my baby”; and that on asking the Sister in Charge why Cassandra’s milk was not coming through the Sister had replied, “We are stopping the milk because the baby is going to be adopted”.

60 During cross examination Mrs Deroubaix admitted that she has no recollection of any discussions about breastfeeding (t 114.50-51). However she did notice that Cassandra was not breast feeding and wondered why she was not getting her milk and she complained about it. She was told that the baby was not being breast fed and she was up for adoption (t 118.30-35). Mrs Deroubaix agreed that it was probably on 17 September 1962 that she asked that the baby be brought to Cassandra’s bed. In cross examination Mrs Deroubaix was asked if she had difficulty recollecting many of the conversations that occurred all the way back then. She relied “No. It’s very hard to remember everything that happened 40 or so years ago.” (t 116.13-16).

61 Mrs Deroubaix’s evidence is that she did not discuss what would happen with the baby with her husband until the baby was born. Mrs Deroubaix then said that she had had discussions with him about bringing the baby home and pretending that it was hers, and that she was trying to persuade her husband to move to another suburb. But at that time her husband had not made up his mind. Mrs Deroubaix did not change her mind. She approached the nursing staff after the baby was born and asked them if there was somewhere the baby could be placed while they made up their minds and that Cassandra would come home. She admitted that she had a lot of trouble trying to persuade her husband to adopt the baby and move house. “He was a very determined man.” The plaintiff now recalls walking out of the hospital with her baby and her parents.

62 The particulars of negligence asserted against the Crown Street Women’s Hospital are as follows: (a) failure to properly counsel the plaintiff following the birth of the child; (b) administering medication to the plaintiff which was unnecessary or not requested such as drugs to dry up the plaintiff’s milk; (c) administering medication which the defendant knew or ought to have know would result in the plaintiff not being able to make a clear determination in relation to the adoption and/or non adoption of the child; (d) failure to allow the plaintiff to see the child; (e) failure to ensure that the plaintiff received appropriate medical treatment having regard to her age; (f) failure to ensure that at all times the plaintiff was given appropriate choice and/or counselling in relation to the adoption and/or non adoption of the child; (g) failure to ensure that the plaintiff was appropriately advised in relation to all financial and/or other benefits that she was entitled to; and (h) giving the plaintiff regular injections of Pentobarb which were unnecessary for the general welfare of the plaintiff.

63 The plaintiff says that at no time was she informed of other alternatives for keeping her daughter such as foster care until she was older. She said that she was never given any information about her financial position or the rights that she might have for obtaining pensions or other financial assistance, nor was she given any counselling or advice as to what she could do in relation to keeping her baby. (Aff 30/05/2001 - [37], [40] & [42]). The plaintiff also says that she did not consent to the administration of stilboestrol and barbiturates. There are nursing reports to show that the plaintiff was given Pentobarb – 100gms at 9.00pm each night from 16 September 1962 to 23 September 1962 and that on 17, 18 and 19 September 1962 she was given codeine for a headache. There is a consent form signed by the plaintiff’s mother where she consented to “the submission of my child Sandra to the operation of confinement” (Ex 1D1 – 31). The plaintiff’s evidence establishes that she has a real case to advance against the first defendant.

64 On 25 September 1962 the plaintiff and her parents took the baby to Scarba House. She took the baby there voluntarily. She believed that she had to leave the baby there until her parents sold their home at Peakhurst. During this time that her daughter was at Scarba House the plaintiff resided at home with her parents at Peakhurst. The plaintiff together with her mother went to Scarba House a couple of times a week to visit her baby. In her statement to the Standing Committee she recorded this period at Scarba House in the following terms:

“I went out to Scrabra (sic) every chance I could to see her. I was never told at any time at Crown St, Scrabra (sic) or DOCS that I could get any financial help or any other assistance in any way for me to be able to keep my child. I remember crying every time that I left her to go home after I had been visiting her. On the third month after I had her at Scrabra (sic) they appear (sic) to be hassling my parents to get me to sign her up for adoption. My parents advised me that Scrabra (sic) told them they would be sorry later if they adopted her and that, if you loved her I would give her to parents that could give her everything that I could not (except a real Mothers Love). They did not at any time tell my parents that I would suffer post-traumatic stress later on in life. Actually they never communicated with me at all it was like I was a nothing person sitting there listening.”

65 Approximately three months after the birth of her daughter, which would be December 1962, the plaintiff says she went to Scarba House together with her mother and father for a meeting that took about 15 minutes. The plaintiff felt that during the course of this meeting that she had no rights. At this meeting the plaintiff recalled her mother saying to the person in charge “We have been advised that we should give the child up for adoption as it is going to a nice family and a wealthy family in the country”. The woman behind the desk said “It is better if the child has two parents”. Her mother or father replied “Yes it is better for the baby if you do that”. Then someone in the group said, “If you love the child you will give her up. It is the best thing to do”. The plaintiff was then asked to sign something, which she did, however while signing it she said, “Do I have to do this, do I have to give her up, I do not want to do this”. At that visit the plaintiff signed a Consent to the making of an Order for Adoption. The plaintiff has also written “the tears were pouring down my face as I was signing the papers” [Ex 1D/4]. The plaintiff’s explanation is that she does not know what these papers were.

66 More importantly, the plaintiff stated in her statement to the Standing Committee:

“The tears were pouring down my face as I was signing the papers. I have no problem with adoption but only if you really want to give it up, and did not. I was also told you will have other children and you will forget about her, but that we know that’s not true (sic). My life has been like a Horrible Movie, ever since that day .” [plaintiff’s emphasis]

67 The plaintiff had also deposed that she was asked to sign something, which she did. However while she was signing it she asked, “Do I have to do this, do I have to give her up? I do not want to do this.” (Aff 30/05/2001, para 36). However, during cross examination when the plaintiff was asked “What you were talking about signing there are the adoption papers?” The plaintiff replied “Yes but I have remembered since that I didn’t sign anything because I stopped.” (t 93.10-15). It is fair to say that on this vital issue the plaintiff has given conflicting evidence.

68 The plaintiff’s father, Mr Marcel Noel Deroubaix swore an affidavit dated 3 September 2004, and made a prior statement dated 1 March 2001 which the plaintiff relied upon in the Victims Injury Compensation Claim (Ex D1/2). He was examined and cross-examined via telephone linkup. Mr Deroubaix resides in Western Australia and is in ill health. Mr Deroubaix agreed that his memory of the events, which occurred in 1962, was very poor. In 2001 Mr Deroubaix stated that all he could remember was that they went to Scarba House and they got him to sign something but he did not know what it was. He recalled someone from Scarba House saying that it was for the benefit of the child that the child be adopted out.

69 At paragraph [5] of his 2001 statement he said that he did recall signing something. The factors which played on his mind in relation to making a decision not to keep the child were firstly, that the plaintiff was not that keen to keep the baby herself and she seemed not to request to keep the baby; secondly, because his wife and he were not that compatible; thirdly, they did not have a big house and it would mean another mouth to feed although they certainly could have managed; and fourthly; advice from the person at Scarba House that it would be best for the child to be adopted out. However, he placed only a little bit of relevance on what the person at Scarba House said about it being the best for the baby to be adopted out. At first he said that he did not have conversations with people from Scarba House about the adoption. The he conceded that he must have. He now cannot remember anything about it (t 36.1-9). Mr Deroubaix does remember that he opened a bank account for the child in the Name “Marcelle Deroubaix” with the Commonwealth Bank. It is clear that Mr Deroubaix did not want to adopt the child.

70 According to Mrs Deroubaix, prior to going to Scarba House for the last time, Mr Deroubaix’s had told Mrs Deroubaix that he was unwilling to adopt the baby. Mrs Deroubaix did not tell anyone that she and her husband were not going to adopt the baby. She is not sure whether her husband told anyone at Scarba House that they were not going to adopt the baby.

71 It is Mrs Deroubaix’s evidence that the pressure from Scarba House was shocking and that they never stopped trying to say that it would be wise to have the child adopted, as Cassandra would not get any help from the Welfare Department (t 117.7-10) and “from the time that they got there they were at us to give the child up because it was best for the child.” Mrs Deroubaix’s understanding of what would happen to the child on that last visit to Scarba House was that Scarba had a good couple from the country that wanted to adopt (t 117.47-55). Her evidence is that at this time the plaintiff was crying and that she did not see the plaintiff sign anything.

72 The plaintiff alleges that the signature on that Consent to Adoption document is not hers as her second name “Robyn” has been spelt with an “i” whereas she has always spelt her second name with a “y”. A copy of the plaintiff’s driver’s licence reveals the plaintiff’s middle name as being “Robin”. The plaintiff’s explanation is that in 1965 someone in the RTA spelt her middle name incorrectly and she has never changed it [Ex 1D/1-9]. On a Royal Prince Alfred Hospital consent form, filled out by the plaintiff on 17 March 1980, she has written her middle as “Robin” [Ex 2D/2]. In support, the plaintiff tendered handwriting expert’s reports of Michelle Novotny of Forensic Document Services dated 12 May 2005, 16 January 2006 and 27 March 2006.

73 Ms Novotny (report, 12/05/2005 [15] – [23]) after an examination of the questioned signature “Sandra Robin Deroubaix” noted the spelling of the middle name “Robin” and that parts of the first and middle names “Sandra Robin” exhibited poor fluency in the form of shaky pen movements which indicated slow or laboured pen movement. The letter “S” and both letters “A” in “Sandra” exhibited overwriting of the ink lines or parts thereof with separate pen strokes. There also appeared to be a short added stroke to the right foot of the letter “R” in “Robin”. It was Ms Novotny’s opinion that these features were inherently suspicious and is often considered to be hallmarks of simulation/imitation. In Ms Novotny’s opinion the surname “Deroubaix” exhibited evidence of having been written freely and fluently. Scarba House tendered a report (21/09/2005) of C I Anderson of Chris Anderson & Co Pty Ltd in which Mr Anderson questioned Ms Novotny’s methodology.

74 The particulars of negligence asserted against the second defendant are: (a) failure to ensure that the plaintiff was properly counselled; (b) providing advice to the plaintiff when she was not in a fit mental and/or physical condition to make an informed decision; (c) failure to ensure that appropriate counselling was offered to the plaintiff by appropriately qualified persons; (d) failing to ensure that the plaintiff’s consent for the adoption of the said child was made without any intimidation and/or made when the plaintiff was in a fit condition with appropriate information to make such decisions; (e) failure to counsel the plaintiff; (f) failure to advise the plaintiff of her entitlements at law in relation to financial and/or other benefits for the caring of the said child; (g) placing undue force and/or coercion upon the plaintiff to induce the plaintiff to leave the said child in the care of the second defendant at Scarba House; (h) failing to properly inform the plaintiff of the condition of the said child and/or where the said child would be retained pending adoption; (i) failure to provide the plaintiff with information in relation to the fact that the said child was not to be adopted immediately but was awaiting appropriate adoptive parents; (j) failure to allow the plaintiff to keep the said child; (k) failure to adhere to the expressed wishes of the plaintiff and ensuring that the plaintiff received appropriate counselling in relation to those wishes; (l) placing undue pressure upon the said plaintiff having regard to her age and/or mental and/or physical capacity to ensure that she signed appropriate papers for adoption of the said child; and (m) failure to ensure that the plaintiff had been appropriately treated at the premises of the first defendant and had been provided with all necessary information by the first defendant in relation to her entitlements at law and/or her entitlements to retain the said child and obtain appropriate benefits.

75 The issue of whether or not it is the plaintiff’s signature on the consent form is in dispute and is one that is to be determined at trial, if there is one. There are difficulties with the plaintiff’s case in relation to this issue. She has completed other forms spelling her middle name as “Robin”, and she has given conflicting evidence as to whether or not she actually signed the consent form. The plaintiff’s alleged signature was witnessed by Mrs Blakemore who is deceased. As there is expert evidence concerning her signature, I am only just prepared to accept that the plaintiff has a case to advance as to whether or not she signed the consent form. In relation to the other particulars of negligence, the plaintiff’s evidence establishes that she has a real case to advance against the second defendant.

76 While the plaintiff’s plight deserves sympathy, it is this Court’s task to determine whether it is just and reasonable to extend the limitation period. The ultimate test in any such application is whether a fair trial can be conducted not withstanding any delay (see Wynter), or whether or not the plaintiff seeking the extension has discharged the onus of satisfying the court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely (South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 per Hodgson JA at [33]).

77 With the passing of 44 years there would be presumptive prejudice. Most relevantly the United States Supreme Court explained in Barter v Wingo (1972) 407 US 514 at 532:

“’What has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ’knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”

78 Crown Street Women’s Hospital closed in 1983. The plaintiff’s hospital records, including the social work file, are available (see Ex 1D/1). The relevant legislation in place at the time of the adoption was the Child Welfare Act 1939. In 1967 it was replaced by the Adoption of Children Act.

79 Prior to the final report an Interim Report on Inquiry into Adoption Practices from 27 August 1998 to 19 October 1988 and Second Interim Report on Adoption Practices from 16 June 1999 to 25 October 1999 have been produced. There is some reference and evidence to the practices at Crown Street Women’s Hospital in the early 1960’s and brief reference to Scarba House in the Final Report – Releasing the Past – Adoption Practices 1950-1988 by the Standing Committee on Social Issues, Legislative Council of New South Wales Parliament. Chapter three focuses upon adoption practices from 1950 to early 1970. There may be witnesses who gave evidence to the inquiry who could be called to give evidence at trial such as Dr Hinde and Dr Rickarby. While Dr Rickarby gave evidence to the Committee he did not practice in New South Wales in the 1960’s.

80 In ‘W’ a statement of Pamela Thorne nee Roberts who was in charge of the Social Work Department at Crown Street Women’s Hospital, albeit from 1964 (two years after the plaintiff’s baby was born to 1976) was tendered. Master Greenwood recorded the following. Ms Thorne stated that there was no policy of coercing mothers to surrender their child for adoption. It seems that the procedure then in place was to mark the papers with a code to indicate the status of the baby ie "UB negative" would mean "unmarried, baby for adoption" as a guide to the labour ward. It was a guide only and could be changed if there was a change of mind by the mother. The marking would affect the procedures surrounding the birth in three ways. First, as to the contact the mother would have with the child. Secondly, as to the accommodation of the mother and child after the birth. Finally as to the medication that would be administered to the mother.

81 According to Ms Thorne the policy of placing a pillow on the mother’s chest was to prevent any bonding occurring. It would seem however that this policy was under review and in the late sixties whilst eye contact at birth was not permitted the mother could if she wished see the child later in the nursery. It would seem that this practice changed over a period of time. The purpose of moving the mother within hours of the birth, if it were medically possible, was that it was felt in the best interest of the mother as it was too traumatic for her to remain in the hospital where the child would be kept. If a mother stayed at the hospital she would be place in a ward with twenty five other mothers who would have their babies with them as the babies slept in cots by their mother's beds. It was the practice at that point in time, if the mother decided not to keep a child, for the mother to be informed that she would be moved to another area. The medication "stilboestrol" was used to suppress lactation not for the purposes of sedating the mother. Thus, I am prepared to accept that evidence may be called as to the adoption practices at Crown Street Women’s Hospital in 1962.

82 There are text books, such as Obstetrics, J P Greenhill, 13th ed 1966, W B Saunders & Co, Philadelphia & London and Obstetrics by Duncan E Reid, W B Saunders & Co, Philadelphia & London 1962 available (Ex 1D/12). Although American they refer to the practice of obstetrics at the relevant time.

83 The plaintiff recalls having had a conversation with a doctor in the labour ward, Dr Beard, about the possibility of her baby being adopted (t 10.53). Dr Beard is still alive but his wife says that he has a very bad memory. Turning to the case before me, Dr Beard was the RMO in charge of the delivery of the plaintiff’s baby. In the hospital notes next to the heading “reason for transfer of baby to nursery” on the neonatal history is an entry “BFA” (Baby for Adoption). This sheet refers to Dr Beard. Likewise on the nursing report for 16 September 1962 is a note “to nursery BFA”.

84 The plaintiff has “a couple” of other recollections of mention of the adoption of her baby whilst she was in hospital. The plaintiff does not remember telling anyone she was going to keep the baby, but rather she just assumed she was going to and “they” knew about it (t 11.32). Nurse P Shorter, Nurse Cowan and Sister Siddall were also involved in the plaintiff’s care at hospital. Nurses Shorter and Cowan have not been located. Sister Siddall has been located.

85 Ms Jean McDonald is the most critical witness for the Crown Street Women’s Hospital. She was the almoner who was assigned to the plaintiff. An almoner is a social worker with some medical knowledge. Neither party has been able to locate Jean McDonald. It is possible that she may be dead. The hospital notes record that she had discussions with the plaintiff about her baby. At 2.00pm on 17 September 1962 in the hospital notes is an entry “? Keeping baby. To be seen by almoner this PM. Baby in nursery.” There is an entry in the hospital notes “3pm seen by almoner” (t 30.56). It was after that meeting that the plaintiff’s baby was put in a cot beside her bed. The plaintiff has no memory of this. However, the plaintiff says that she noticed that in her hospital records there was no actual notation that she saw Ms McDonald (t 10.23). It seems that there was at least one conversation which occurred at 3.00pm with the almoner. The oral conversation or conversations between Ms McDonald and the plaintiff are of the utmost importance, particularly where the plaintiff asserts that at no time was she informed of other alternatives for keeping her daughter such as foster care until she was older. She said that she was never given any information about her financial position or the rights that she might have for obtaining pensions or other financial assistance, nor was she given any counselling or advice as to what she could do in relation to keeping her baby. (Aff 30/05/2001 - [37], [40] & [42]). The latest information reveals that a death notices media search has revealed too many entries for Jean McDonald. A New South Wales electoral roll search has revealed 34 entries for Jean McDonald. Of the 34 electoral roll entries 19 have been contacted and are not the correct person. Messages have been left for five unanswered telephone calls and telephone numbers for 10 could not be located.

86 The hospital records contain a letter from Dr Coyne. He has no recollection of the letter and cannot recall anything about the case. Dr Coyne thinks that he probably signed the letter with no other involvement. That being so, Dr Coyne is of little importance in this case. Dr Stenning was involved in the treatment of the plaintiff and her baby. Dr Stenning died in 1983. Dr Crowe has reviewed the hospital records and has stated that he only saw the plaintiff for a routine antenatal visit when the plaintiff was 26 weeks pregnant and did not see her after that. The hospital records disclose the involvement of Dr MacKay. In relation to “booking and counselling”. Dr MacKay has not been located but he could be an important witness and may be able to explain what the entry “counselling” meant.

87 Some of the other records from Crown Street Women’s Hospital are held by the Coding company. In December 2000 Ms Vanessa Manuni, Acting Clinical Performance and Information Manager of Crown Street Women’s Hospital, went to the Riverstone storage centre and inspected the documents held there. She identified eight boxes relevant to personnel records. She noted that these contained cards that provided demographic and employment details which were in no particular order. They would not seem to be of any assistance.

88 Enquiries have revealed that Estelle Sperling, Chief Dispenser/Pharmacist from 1960 to 1973 died on 20 November 1992. Ronald Barton Golsby Chief Executive Officer 1952 to 1971 died on 28 March 1989, E A R Blair, Matron/Superintendent of Nursing between 1952 to 1963 died on 23 April 1997 and F R Magarey, University of Sydney Professional Consultant from 1958 to 1976 died on 6 October 1983. These peoples’ notes are of lesser importance to the issues in dispute should a trial take place.

89 The Minsters for the Child Welfare were Francis Harold Hawkins MLA (15 March 1956 – 13 May 1965), Arthur Dalgety Bridges MLC (1965 - 22 May 1968), Arnold Henry Jago MLA (22 May 1968 – 3 September 1968), Frederick Maclean Hewitt MLC (3 September 1968 – 11 March 1971 and Acting Minister 26 May – 31 July 1972) and John Lloyd Waddy MLA (11 March 1971 – 17 January 1973) and Minister for Youth and Community Services (17 January 1973 – 3 December 1973). All are deceased. While they may have had some knowledge about adoption policy it would be most unlikely that they are further removed from having any direct knowledge about matters touching on the plaintiff’s case.

90 Ms Susan Elizabeth Fougler, an executive assistant with the Benevolent Society for approximately two years, conducted a search of the records relating to Scarba House at the Mitchell Library. Scarba House closed in 1975. The records were forwarded to the Mitchell Library. There is a Guide to the Records of the Benevolent Society of New South Wales in the Mitchell Library, State Library of NSW – see Ex 2D/1. Ms Foulger searched for records for the period of 1936 to 1975 for a reference to the plaintiff’s name under the following categories of documents: (a) staff records; (b) day reports/progress notes; (c) diary entries by nursing staff; (d) patient records; (e) minutes of Scarba Committee Meetings; and (f) Scarba Committee correspondence.

91 Ms Sarah Armstrong who was employed by the Benevolent Society as a senior manager of the Post Adoption Centre (PARC) by the Benevolent Society gave evidence and was cross examined. In July 2001 Ms Armstrong conducted a search by children’s name on documents in the storeroom of Scarba House at Ocean Road, Bondi. Even though Ms Armstrong knew there were no records prior to 1967 she searched the storeroom again and did not find any records relating to the plaintiff. There are some documents that remain stored in the Scarba House storeroom, in no particular order, which are now in the process of being archived.

92 On 20 May 2006 Ms Eleanor Maitland Ware, who was the Matron of Scarba House in 1962, died. In 1962, the Registrar at Scarba House was Jean Johanna Blakemore. It was Ms Blakemore who witnessed the signing of the consent form. Ms Blakemore’s evidence is critical to this case. It is alleged that the plaintiff’s signature on that consent form is a forgery. Ms Blakemore has died. Sister Aileen M Chapman who was employed at Scarba House up to 1963 has died.

93 On 16 August 2001 Keith Williamson, who has been the Society’s honorary archivist since 1965, deposed that he spoke to Eleanor Maitland Ware and asked her whether during her time as Matron at Scarba House if she could remember a baby named Marcelle Lee-Ann Deroubaix. Ms Ware was not able to specifically recall that name, as it was Ms Blakemore’s policy not to divulge the full name of children placed at Scarba House. The children were referred to by Christian names and she could not recall a baby named Marcelle or Lee-Ann. Ms Ware died on 20 May 2006 (aged 92 years).

94 In 1969 Mr Williamson was informed by Miss McIntyre that John V Callaghan, a social worker and administrative officer employed at Scarba House between July 1969 and February 1971 destroyed the records up to 1971, which related to children resident at the house. Apparently Mr Callaghan believed that the records should be destroyed to protect the identity of the parents and the children. Mr John V Callaghan may be a lecturer in Social Work at UTS. He may be able to be traced. Miss McIntyre is now a lawyer and may be able to be located. It appears that any documents which would shed light on the plaintiff and her baby at Scarba House no longer exist.

95 The plaintiff’s school records at Danebank Anglican school are no longer in existence. Since 1995 to date the plaintiff has consulted a multitude of doctors. Some of the doctor’s records have not been produced but a lot have. Further enquiries in relation to these records may be fruitful. While there are some gaps in this more recent body of medical evidence, there is enough available in relation to the plaintiff’s medical complaints and treatment during this period.

96 The plaintiff’s recollection of events is unreliable in areas other than the signing of the consent form which I have referred to in more detail earlier in this judgment. Another example is that in 1982 she told the social worker at the Crown Street Women’s Hospital records that she was at ease with counsellors as she had used them in the past (Ex 1D/1 – 89). Dr Poulos recorded that at the age of 14 years she had had counselling. Whether or not the plaintiff had had counselling by either it is an issue in these proceedings. There is a note by Dr Poulos that her mother wanted the baby adopted out and it was done and her mother “turned it off and was cold” and that she was never close to her mother. The plaintiff’s evidence is that she has always has a good relationship with her mother.

97 The evidence of the plaintiff’s and her parents is unreliable. The oral conversations between the plaintiff and the almoner Ms Jean McDonald at Crown Street Women’s Hospital and between the plaintiff and Jean Blakemore the Registrar at Scarba House regarding the adoption are crucial. There are no notes on the social work file at Crown Street as to what was actually discussed. Ms McDonald the almoner cannot be located. Mrs Blakemore who also witnessed the plaintiff’s signature on the consent form is dead. The Matron at Scarba House Ms Ware who may firstly, have had discussions with the plaintiff about adoption; and secondly, may have been able to give evidence concerning the procedure for adoption is dead. So far as the second defendant is concerned it is most unlikely that any records relating to the plaintiff and her baby at Scarba House are still in existence. The defendants will not be given an acceptably fair trial. It is my view that it is not just and reasonable to extend the limitation period. The plaintiff’s claim is dismissed.

98 Normally costs follow the event. The plaintiff is to pay the defendants’ costs as agreed or assessed.

The court orders:

(1) The summons filed 30 March 2001 is dismissed.

**********

Citations

Cooke v State of NSW [2006] NSWSC 655

Most Recent Citation

Cases Citing This Decision

1

Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130

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21

Statutory Material Cited

1

Holt v Wynter [2000] NSWCA 143

McLean v Sydney Water Corporation [2001] NSWCA 122

Milperra Marketing Pty Ltd v Bayliss [2001] NSWCA 315

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CITATION:	Cooke v State of NSW & Anor [2006] NSWSC 655
HEARING DATE(S):	13, 14, 15, 19 & 20 June 2006
JUDGMENT DATE :	30 June 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Associate Justice Harrison
DECISION:	(1) The summons filed 20 March 2001 is dismissed; (2) The plaintiff is to pay the defendants' costs as agreed or assessed.
CATCHWORDS:	Extension of time - ss 60G & I - Limitation Act 1969 - adoption of baby in 1962
LEGISLATION CITED:	Limitation Act 1969 (NSW) - ss 60G & I
CASES CITED:	Arthur v State of Queensland [2004] QSC 456 Barker v Wingo (1972) 407 US 514 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1 BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997) Christakos Transport Pty Ltd (in Liq) v Croft [2005] NSWCA 472 Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271 Commonwealth of Australia v Nelson [2001] NSWCA 443 Commonwealth v Smith [2005] NSWCA 478 Delta Pty Ltd v Whitefield [2004] NSWCA 220 Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 Drayton Coal Pty Limited v Drain (Unreported, NSWCA, Gleeson CJ, 22 August 1995) Harris v Commercial Minerals Ltd (1996) 186 CLR 1 Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 "JX" v "GX" & Ors [2006] NSWCA 167 McGloin v Magann [2005] NSWCA 358 McLean v Sydney Water Corporation [2001] NSWCA 122 Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315 Rutter v State of New South Wales [2005] NSWCA 231 Schering-Plough Pty Limited v Page [2002] NSWCA 4 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 State of New South Wales v Knight [2002] NSWCA 185 Sydney City Council v Zeggarac (1998) 43 NSWLR 195 'W' v State of New South Wales (unreported, NSWCA, Master Greenwood, 13 December 1996) 'W' v State of New South Wales (Unreported, NSWSC, Hidden J, 10 July 1997) 'W' v State of New South Wales (Unreported, NSWCA, 15 September 1997) Yu v Spiers [2001] NSWCA 373
PARTIES:	Cassandra Robyn Cooke (Plaintiff) State of New South Wales (First Defendant) Benevolent Society of New South Wales (Second Defendant)
FILE NUMBER(S):	SC 10920/2001
COUNSEL:	Mr M Maxwell (Plaintiff) Mr S A Woods (First Defendant) Mr M Scott (Second Defendant)
SOLICITORS:	Turner Freeman, Lawyers (Plaintiff) Frances Allpress (First Defendant) Henry Davis York (Second Defendant)