George Potkonyak v Clifford Powell

[2007] NSWDC 282

Reported Decision: 6 DCLR (NSW) 101

District Court

CITATION:	George Potkonyak v Clifford Powell [2007] NSWDC 282
HEARING DATE(S):	8 December 2006, 19 February 2007
EX TEMPORE JUDGMENT DATE:	19 February 2007
JURISDICTION:	Civil
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Summons dismissed; Plaintiff to pay defendant's costs; Pursuant to Uniform Procedure Rules 50.3(1)(b) time extended for plaintiff to appeal to the Supreme Court to fifty-six days; Exhibits to be retained.
CATCHWORDS:	Application to extend time to bring action for damages against a clinical psychologist. - Psychologist had interviewed plaintiff on 3 occasions in 1996 and also had interviewed plaintiff's former wife. - Psychologist gave evidence in Family Law proceedings in Local Court on 20 January 2000. - Orders adverse to plaintiff were made by Local Court. - Those orders set aside by Family Court which conducted a hearing de novo and orders made on 11 January 2001 more adverse to plaintiff. - Further applications to Family Court and an appeal to the Full Bench of that Court were unsuccessful. - Plaintiff originally stated that his cause of action arose when the defendant gave evidence in the Local Court on 20 January 2000. - Claim reformulated to rely on actions/inactions of defendant prior to his giving evidence, in particular a failure to produce documents required on subpoena. - Held: the proposed action would be futile as the proposed defendant was entitled to claim witness immunity. - Application dismissed.
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Cabassi v Vila (1940) 64 CLR 130 Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 Duke v State of New South Wales [2005] NSWSC 632 Cran v State of New South Wales (2004) 62 NSWLR 95 Giannarelli v Wraith (1988) 165 CLR 543
PARTIES:	George Potkonyak (Plaintiff) Clifford Powell (Defendant)
FILE NUMBER(S):	169/06
COUNSEL:	J. Turnbull (Defendant) (Plaintiff in person)

JUDGMENT

1 HIS HONOUR: By summons filed on 19 January 2006, the plaintiff, Mr George Potkonyak, seeks an extension of time in which to bring an action claiming damages from the defendant, Dr Clifford Powell, a clinical psychologist.

2 Dr Powell saw the plaintiff on three occasions: 4 March 1996, 22 March 1996 and 16 April 1996. The defendant also saw the plaintiff’s former wife on three occasions. The first two occasions were separate to his consultations with the plaintiff, and his last consultation with the plaintiff’s wife was a joint consultation with the plaintiff and his wife. Subsequently, there appears to have been a matrimonial break-up.

3 Proceedings were commenced in the Local Court of New South Wales, exercising its jurisdiction under the Family Law Act. The defendant was called to give evidence in those proceedings on 20 January 2000. The plaintiff was called by Mr Hume who was a solicitor in the firm of Phillip K Coster and Co of Spit Junction. Dr Powell was cross-examined by Mr Kenny of counsel who was instructed by a solicitor retained by the present plaintiff. Those proceedings were decided by the learned magistrate, who made an order that the children of the plaintiff and his former wife reside with his wife, and that the plaintiff have contact with his children every three weekends out of four. The learned magistrate also made an order restraining the plaintiff’s wife from involving her children with a religious sect known as the Potter’s House.

4 The plaintiff then commenced proceedings in the Family Court of Australia at Sydney, where the orders made by the Local Court were set aside and the matter was heard de novo. The case was decided by Chisholm J, who gave judgment on 11 January 2001. His Honour ordered that the children of the marriage reside with the wife, and that the plaintiff have contact with his children every second weekend. There were no orders restraining the plaintiff’s wife from involving her children in the Potter’s House.

5 The plaintiff then commenced further proceedings in order to obtain an order essentially preventing the children from attending upon the Potter’s House. The plaintiff was unsuccessful in that application.

6 The plaintiff then made a further application for relief from the Family Court, to obtain, as the plaintiff put it, “protection of children from the influence of the Potter’s House”. That application was summarily dismissed and an order was made declaring the plaintiff a vexatious litigant. From that order, the plaintiff appealed to the Full Court of the Family Court. That appeal was heard on 8 February 2006, and some eight months later was dismissed. The plaintiff is now considering an appeal to the High Court of Australia. The plaintiff has also referred to other possible appeals to the High Court of Australia.

7 The plaintiff wishes to commence an action in this court against a number of defendants. An annexure to the plaintiff’s affidavit of 28 August 2006, which is Exhibit B, sets out the proposed litigation in this fashion:

“The claims will be for economic loss, mental harm and loss of amenities of life, suffered by my three children and me, caused by wilful and/or negligent acts of the defendants. The acts that led to the alleged harm commenced on 20 January 2000, as far as it can be ascertained and as far as the defendant, Dr Powell is concerned, and continued throughout the Family Court litigation that has not finalised to this date. As far as the defendant, Dr Powell is concerned, my claims fall within sections 14 and 18A of the Limitation Act 1969 (NSW). The full extent of the losses and harm cannot yet be ascertained, neither can the contribution of each of the defendants without a full and proper hearing.

My claims would be against the following defendants:

First Defendant: The Chief Justice of the Family Court of Australia (or the Attorney General)

Breach of duty of care owed to my children and me by failing to provide a system of fair administration of justice. The failure resulted in the acts of conspiracy between the second defendant and some Family Court staff to pervert the course of justice. Those acts led to the harm for which damages will be claimed.

Second Defendant: The Legal Firm that represented my former wife in the proceedings

The wife’s solicitor, who was an employee of the second defendant, has conspired with some family court staff, for whose conduct the first defendant was vicariously responsible, to pervert the course of justice by fraud. He also conspired with the fourth defendant to pervert the course of justice by withholding the results of the MCMI-II tests from the court.

Third Defendant: The Potter’s House

The pastor of The Potter’s House, where my former wife and the children attend, has assumed full and unquestioned authority over them, failing to exercise his authority by advising my former wife and my daughter on what course of action was best for them. Instead he exercised the undue influence and outright psychological coercion that led to the wife’s refusal to consider my request for stopping the children’s involvement with the The Potter’s House. He also exercised the coercive persuasion techniques over my daughter who has been totally alienated from me, thus depriving her of her right to maintain proper relationship with her father. The methods of the coercive persuasion, generally practised by The Potter’s House, are the methods that can cause psychological and psychiatric harm to people...

Fourth Defendant: Dr Clifford Powell

In response to the request of the wife’s solicitor Dr Powell produced the misleading Opinion Reports for the proceedings in the Local Court and, more importantly, withheld the facts about the wife’s true psychological condition. Even though Dr Powell’s testimony was rejected by the court, if the learned magistrate was aware of the information withheld by Dr Powell, the outcome of the proceedings could have been different. Also, the judge in the first proceedings in the Family Court accepted Dr Powell’s claim of my Narcissistic personality as being “significant”. If that were the case, if the judge was consistent, he would have accepted as “significant” that the wife suffered from the OCD, thus the outcome of the proceedings could have been different.”

By “OCD”, I understand the plaintiff to be referring to a diagnosis of obsessive-compulsive disorder.

8 When the current summons first came before me, I asked the plaintiff when the cause of action arose. He told me that it arose on 20 January 2000 when Dr Powell gave evidence. The plaintiff has been unrepresented throughout these proceedings. I then referred the plaintiff to the decision of the High Court of Australia in Cabassi v Vila (1940) 64 CLR 130, to paragraph 9-17 commencing on page 220 of the sixteenth edition of Phipson on Evidence (2005) and to some authorities collected in Fleming, Law of Torts, 8th edition, (1992) page 559. The matter was then stood over so that Mr Potkonyak could consider those matters and so that the defendant could also consider the matter. The matter came back before me again on 8 December 2006, but only as a mention. On that occasion, the plaintiff handed to me some written submissions headed “Case Outline”, which are marked for identification 3. The matter was then stood over for completion today.

9 When the matter was before me on 8 December 2006, it was clear that the plaintiff had considered the authorities to which I referred him and sought to distinguish the position in which he found himself on 19 October 2006 by submitting that his claim was based on what the defendant did or did not do before he appeared as a witness. Essentially, the plaintiff says that the defendant was served with a subpoena to produce documents, that certain documents were produced by the defendant before the Local Court on 20 January 2000, but those documents did not include the MCMI-II narrative test reports which are Exhibit E and Exhibit F before me. One of those tests was carried out on the plaintiff and the other on the plaintiff’s wife. The test on the plaintiff’s wife was carried out on 12 March 1996, and the tests on the plaintiff were carried out on 13 March 1996.

10 It should be clear from the brief recitation of the plaintiff’s proposed action that I have set out from the plaintiff’s affidavit that the plaintiff alleges either misconduct by the defendant or some form of conspiracy by the defendant or collusion by the defendant with his former wife’s solicitor in effect not to produce to the court the MCMI narrative test reports. The defendant did not go into evidence on this application, but learned counsel for the defendant, Mr Turnbull, conceded that the subpoena for production which had been issued out of the Local Court to the defendant was wide enough to require him to produce the MCMI-II narrative test reports, and conceded that his client failed to do so, but maintains that the defendant’s position is that he misunderstood or misread the subpoena and was unaware of his obligation to produce those reports.

11 The plaintiff became aware of the MCMI-II narrative test reports after he had inspected them a number of months after the conclusion of one set of proceedings in the Family Court, that is in about the middle of the year 2002.

12 Whether the production of the MCMI-II narrative test reports earlier would have changed anything is a moot question. The plaintiff had a score of eighty on the narcissistic scale which led to an inference that the plaintiff had narcissistic personality traits. The plaintiff's wife had a score of seventy-five on the schizoid scale, seventy-two on the dependent scale and a score of 103 on the compulsive scale. It is clear to me from reading exhibit F that those scores suggested some schizoid personality traits and obsessive compulsive personality traits but did not lead to the diagnosis of obsessive compulsive personality disorder or of a schizoid personality disorder, just as the plaintiff’s scoring did not lead to a diagnosis of a narcissistic personality disorder, merely to the diagnosis of a narcissistic personality trait.

13 The essence of the plaintiff's allegation is that had the defendant produced to the local court the MCMI-II narrative test report as he was required to do on 20 January 2000 the outcome of the proceedings in the Local Court and the outcome of proceedings subsequently in the Family Court may have been quite different. It is the outcome of the family law litigation which has led to the plaintiff's psychiatric claim and his claim for personal injury damages arising from the alleged default of the defendant.

14 The leading decision of the High Court of Australia in this area is Cabassi v Vila to which I have already referred. In that case the plaintiff Marie Cabassi had claimed 200 pounds damages for assault from one Ferrando. Proceedings were commenced by way of plaint and summons in the Magistrates Court in the state of Queensland. The magistrate gave judgment for the Ferrando. An appeal by the plaintiff against the magistrate’s decision was dismissed by the Supreme Court of Queensland in July 1934, and the plaintiff was ordered to pay costs. In April 1938 the plaintiff brought an action by way of a Writ of Summons in the Supreme Court of Queensland against Ferrando and his two witnesses, Vila and Aracil. The head note continues the statement of facts thus:

“In her statement of claim the plaintiff craved leave to refer to and incorporate the depositions and set forth the facts shown above. She alleged that to the extent that the evidence given by and on behalf of Ferrando was in conflict with the evidence given by and on behalf of herself it was false, and false to the knowledge of the defendants and Clement [another witness], and that such evidence was material to the issue and the issues before the court. She further alleged that the defendants unlawfully conspired together to cheat and defraud her and to deceive and fraudulently mislead the Magistrates Court and the Supreme Court, and agreed together to give, adduce and procure the evidence given by them and clement as mentioned above, and that in pursuance of such agreement the evidence mentioned was given, adduced and procured by the defendants and the said evidence did in fact deceive and fraudulently mislead each of the said courts and was adduced to and did cheat and defraud her.”

The defendant filed a demurrer in the Supreme Court which was allowed by the Full Court which ordered that judgment be given for the defendant. The plaintiff then appealed to the High Court of Australia. That appeal was unsuccessful.

15 Rich ACJ said this:

“A proceeding of this kind is an attempt to re-examine the merits of a judgment in a collateral suit between the same parties. Reasons of public policy and uniform authority forbid the attacking and impeachment of a judgment in this way. The plaintiff’s only remedy is an equitable proceeding to set aside the judgment, or a petition for a new trial under the statute. An action by the defeated party cannot, or equally good reasons, be maintained against a witness or witnesses for giving false testimony in favour of his opponent. Public policy and safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury. Though not a party to the former suit and judgment, the merits of that judgment cannot be re-examined by a trial of the witness’ testimony in a suit against him. The procedure, if permitted, would encourage and multiply vexatious suits, and lead to interminable litigation.”

16 Stark J said commencing at 140:

“No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts.”

His Honour then lists a number of cases in support of the immunities of various classes referred to by him.

17 His Honour then continues at 141:

“Actions against witnesses for defamation have failed and so have actions analagous to actions for malicious prosecution, which Brett MR thought were brought “in despair ” (Munster v Lamb (1883) 11QBD at 602), and now we have an action against witnesses for conspiracy to give, adduce and procure false evidence justified by the proposition taken from Sorrell v Smith that a combination of a set of persons or a conspiracy for the purpose of injuring another following by actual injury is actionable.

But it does not matter whether the action is framed as an action for defamation or as an action analagous to an action for malicious prosecution or for deceit or as in this instance for combining or conspiring for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared ( Watson v McEwan [1905] AC at 486), given, adduced or procured by it in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice. ...The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court: See Watson V McEwan . ”

18 The other judge in Cabassi was Williams J with whom Rich ACJ had concurred.

19 At 148 His Honour said:

“When the statement of claim was filed there was in existence a binding judgment against the appellant in favour of Ferrando. Until rescinded the appellant could not have taken any civil proceedings against Ferrando which impugned the judgment except to challenge its validity. The appellant claims to have suffered damage because the judgment was procured by false evidence of he defendant and his witnesses, but it is a maxim that actus legis nemini facit injuriam. While the judgment stood no averment could be committed against it otherwise the judgment would be ‘blowed off by a side wind’...”

20 His Honour went on to say at 151:

“Apart from considerations of public policy there does not seem to be any reason why the unsuccessful party in legal proceedings should not be able to sue the other party or a witness who had committed perjury in an action on the case for damage which he had thereby suffered. If such right of action existed against one person who had committed perjury, it would also exist against a number of persons who had done so in concert, and they could be sued at the plaintiff’s option as joint tort feasors or severally for the same conduct. ‘If a combination of persons do what if done by one would be a tort, an averment of conspiracy so far as found in a civil action is mere surplusage.’ ...

Every consideration of public policy which prevents the crime of perjury followed by damage from constituting a tort is equally applicable to prevent the crime of conspiracy to commit perjury followed by its commission and consequential damage from doing so.

A joint action can be brought against two or more persons for conspiracy to slander as well as against them severally...If the appellant is right the immunity of a witness who made a slanderous statement in the course of his evidence would be destroyed by alleging he had conspired to do so with another person. A witness usually discusses his evidence with a solicitor of the party on whose behalf he is going to give evidence, and often with that party himself, so it would be simple to allege the conspiracy to give false evidence or to utter slander in order to found the action. The value of the immunity of witnesses would be substantially diminished and in fact almost destroyed if such an action be brought because, even if you fail, as pointed out by Lord Penzance in Dawkins v Lord Rokeby, ‘the witnesses may be cleared by the jury of the imputation and may yet have to encounter the expenses and distress of harassing litigation. With such possibilities hanging over his head, a witness cannot be expected to speak with that free and open mind which the administration of justice demands’.”

21 There are a number of principles alluded to by their Honours in the High Court. The first is the clear absolute immunity of a witness in giving evidence in a court. The second is the principle which gives rise to the immunity, that there be firstly finality to litigation and secondly that all witnesses and counsel for that matter feel themselves free to say what they must say in order to play their part in the litigation. A third principle is the principle that one set of proceedings cannot be used to impugn another set of proceedings.

22 In Cabassi it is clear that the second action commenced by the plaintiffs sought to have an outcome completely inconsistent with the first proceedings determined in the Magistrate’s Court.

23 However the principle in my view is equally applicable where, as appears to be the case here, the plaintiff alleges that he has been unsuccessful in other litigation because of, for example, a failure to do something or a failure to say something in the first proceedings. Essentially the plaintiff in this action seeks to impugn the outcome Family Law litigation. It appears that the decision of the Local Court has been set aside, but for the plaintiff to succeed here he would need in my view to have the decision of the Family Court of Australia set aside.

24 The plaintiff’s argument is essentially that if the defendant had given evidence unfavourable to the plaintiff’s wife, as the plaintiff maintains he ought to have, then the outcome of the Family Law litigation would have been very different and that he would not have suffered the psychological injury that he has, would not have suffered the financial and other losses that he has.

25 In essence, this Court is asked to say that the Family Court erred, that if certain evidence had been given in the Family Court the proceedings would have been different. Only the Family Court of Australia can make that decision. However, I rely on the principle that there must not be an inconsistency of judgments, that one cannot in collateral proceedings impugn the outcome of other proceedings.

26 This is in particular highlighted by difficulties that the plaintiff has when one considers the provisions of the Limitation Act. There are arguments available in the current proceedings that the plaintiff was not initially aware that he had suffered personal injuries, that he was not initially aware of the nature and extent of his personal injuries and that he was unaware of the connection between his psychiatric condition and the defendant’s act or omission.

27 Theoretically the cause of action accrued on 20 January 2000 when Dr Powell went to the Local Court both to produce documents and to give evidence. The transcripts suggest that he had earlier produced documents, however, the 20 January 2000 was his final opportunity to do so. By 28 November 2001 the plaintiff had come under psychiatric care and been given supportive counselling by Dr S Benjamin, a consultant psychiatrist. In a report of 17 December 2003 Dr Benjamin advised the plaintiff had suffered from an adjustment disorder with anxiety which was most likely precipitated by the ongoing litigation with his former wife and his concern for the well being of his children. Dr Benjamin said that in a report addressed to the presiding judge of the Family Court at Parramatta. That report is exhibit H before me. Accordingly, one can see that the plaintiff had commenced receiving psychiatric treatment by 20 November 2001. He was aware of the MCMI-II narrative test reports by middle of 2002 and by the 17 December 2003 was in complete knowledge of the nature and extent of his psychiatric condition and to what it was related, namely the Family Law litigation. Although there may prior to that time have been elements which suggested that this was a “latent injury” everything can be seen as being patent by 17 December 2003.

28 Because of the operation of s.60J of the Limitation Act 1969 I do not need to consider the matters later referred to in s.60I of that Act because the period of limitation referred to in s.60C of the Act had not expired as at 17 December 2003. Accordingly, I must consider the matter under s.60C of the Limitation Act. In particular, I have had to take into account the matters referred to in s.60E (1). The first of those matters is “the length of and reason for the delay.” Learned counsel for the defendant has submitted that there is really no explanation for delay between 17 December 2003 and the commencement of the current application by the filing of summons on 19 January 2006, a period of over two years.

29 All that I do know that the plaintiff was doing during that two year period is making unsuccessful applications to the Family Court of Australia which has subsequently led to that court making some order in the nature of an order against a vexatious litigant. Otherwise the period of two years is unexplained. However, in argument the plaintiff advised me well he was awaiting the outcome of his various applications in the Family Court and waiting to see whether he might be successful on appeal. In other words, the very reason proffered for not doing anything in the two years between 17 December 2003 and 19 January 2006 was the plaintiff’s continued expectation of having a different outcome in the Family Law litigation than that which had actually occurred. One might be forgiven for thinking that if some appeal were successful in the Family Court prior to 19 January 2006 and the original judgment of the Family Court set aside and proceedings were resolved favourably, so far as the plaintiff was concerned, the psychiatric condition might ameliorate. In other words the very reason for the delay offered by the plaintiff highlights in these proceedings that he indeed seeks to impugn the Family Court proceedings, trying to have this court determine that if evidence had been given in some other way than was given by the defendant, that the proceedings would have been determined favourably to the plaintiff and not to his wife.

30 A remaining area, I apprehend, is the distinction which the plaintiff draws between the giving of evidence by the defendant and his antecedent failure to produce documents mainly the MCMI-II narrative test reports. Learned counsel for the defendant has submitted that the ratio decidendi of Cabassi v Vila still covers that matter.

31 However, the defendant relies in particular on the decision of the House of Lords in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435. He also relies upon the subsequent decision of Justice Hidden in Duke v State New South Wales [2005] NSWSC 632.

32 However, those cases are very different to the current one. The head note in Darker sums up the case as follows:

“Following a police undercover operation involving an informer, four of the five plaintiffs were indicted on counts alleging conspiracy to import cannabis resin and four on counts alleging conspiracy to forge travellers’ cheques. In the course of the trial the judge ruled that the police had been significantly at fault in respect of disclosure and directed the charges be permanently stayed on the ground of abuse of process. The plaintiffs brought an action against the defendant Chief Constable claiming damages for conspiracy to injure and misfeasance in public office alleging, inter alia, that police officers had fabricated evidence against them. The defendant applied for a statement of claim to be struck out, claiming that the acts alleged were covered by an absolute privilege or immunity. The Judge struck out the statement of claim and dismissed the plaintiffs’ action. The Court of Appeal dismissed the plaintiffs’ appeal.”

The House of Lords allowed the appeal. Again, following, the head note their Lordships held:

“that public policy required in principle that those that suffered a wrong should have a right to a remedy and that, although the absolute immunity from action given in the interests of the administration justice to a party or witness, including a police witness in respect of what he said or did in court extended to statements made for the purpose of court proceedings and to prevent him being sued for conspiracy to give false evidence, public policy did not require it to be extended to things done by the police during the investigative process which could not fairly be said to form part of their participation in the judicial process as witnesses; that, in particular, immunity did not extend to cover the fabrication of false evidence; and that, accordingly, the plaintiffs’ statement of claim should not have been struck out and the action should be allowed to proceed to trial.”

33 In Duke v State of New South Wales Hidden J stated at [21] that Darker was accepted to be the law in New South Wales in Cran v State of New South Wales. Cran is reported at (2004) 62 NSWLR 95. The leading judgment was given by Santow JA. However, Cran was a very different case to the current one.

34 On 25 March 1998 Cran was arrested near Kings Cross where he was found drinking in a park. He had some paper stickers in his possession. Police thought those stickers were LSD. The appellant told the police they were only paper but they did not believe him. The appellant was charged and remanded in custody. Orders were made by the Local Court for certain analytical testing to be carried out on the evidence collected by the police, but the police and the office of the Director of Public Prosecutions were dilatory in complying with the court orders and in fact there was substantial delay and the plaintiff was held in custody. The matter finally came before Central Local Court on 11 June 1998 when the Prosecution offered no evidence and the charges were dismissed. Subsequently, the Local Court ordered that the appellant’s costs in the criminal proceedings be paid by the Director of Public Prosecutions.

35 The plaintiff then brought an action for damages claimed by him to have resulted from a chronic post traumatic stress disorder as a result of his experiences in gaol. During his imprisonment the appellant was bashed, but received fairly minor physical injuries, however he witnessed both a rape whilst he was in gaol and the murder of another prisoner. The plaintiff was unsuccessful both at first instance and on appeal. The question proposed by Santow JA was whether the State of New South Wales owed any duty of care to the appellant in circumstances where the appellant claimed to have suffered harm in gaol by way of chronic post traumatic stress disorder as a result of his experiences there during the unnecessary prolongation of his imprisonment before trial. There was held to be no such duty. Santow JA did refer to Darker v Chief Constable of the West Midlands Police in [61] on page 113 but with great respect it appears that the mention of that decision is obiter dictum. It clearly was not necessary for the decision of the case of Cran which essentially concerned the duty of care owed by a gaoler.

36 In Duke the plaintiff had on 2 February 1990 been arrested and charged with supplying heroin after the police had searched his home. The plaintiff alleged that the police had placed a quantity of heroin in a resealable plastic bag on his premises and then fabricated evidence that he made relevant admissions about it. In other words, the allegation of the plaintiff was that the police had both “planted” the heroin and then had “verballed” the plaintiff. The plaintiff was committed for trial in the District Court at Bathurst and that trial took place towards the middle of 1992. The plaintiff was found guilty and sentenced to a term of imprisonment. In 1996 at the Police Royal Commission conducted by Mr Justice Wood a number of police admitted that the evidence against Duke had been fabricated. In 1999 the Court of Criminal Appeal quashed the plaintiff’s conviction and ordered a verdict and judgment of acquittal. The matter before Hidden J was a motion for leave to file an amended statement of claim and to join another police officer as a sixth defendant. That police officer is one of those to have admitted fabricating evidence against the plaintiff. Again, that is a very different case to the present one and in particular one where the judgment that was sought to be impugned had in fact been set aside, that is the conviction that had entered up as a result of the trial in the District Court.

37 I accede therefore to the submission put to me by Mr Turnbull for the defendant that Cabassi v Vila is still binding authority on me and that Darker is not binding authority as far as this Court is concerned. There is no binding decision of the Court of Appeal telling me that Darker is binding insofar as it is inconsistent with Cabassi. However, in my view there is no inconsistency between the current matter and the decision of the House of Lords in Darker.

38 Receiving a subpoena either to give evidence or to produce documents is part of the litigious process. Most witnesses receive a subpoena of one form or another. It is a document that they have to obey. There is no evidence before me on this application that the defendant destroyed evidence. The evidence was eventually produced. Although the subpoena required the defendant to produce documents he was not cross-examined to suggest that he had not fully complied with his obligations, in fact was not cross-examined as to where the results might be. Indeed, but for binding authority the plaintiff might have thought that his cause of action was against his solicitor who failed to question the defendant in cross-examination about where his test results were and what they showed. However, as I understand it, the ratio decidendi in Giannarelli v Wraith (1988) 165 CLR 543 would prevent such an action arising. This in my view reinforces the whole problem which the current application makes. In my view all that the evidence before me on this application establishes to my satisfaction is that the defendant failed to produce the documents, but there are other causes of the potential damage: the failure of the solicitor to cross-examine, the failure to ask where the documents were, the failure to inspect the documents at some other stage.

39 There is also of course completely innocent explanation that the documents may not have been in existence at the time the subpoena was issued. They may have been stored away in a computer and not printed out. In any event to refer again to the head note in Darker the immunity of a witness extends to statements made for the purpose of court proceedings and, in my view, extends to conduct engaged in for the purpose of court proceedings. Of course, if the evidence established that there had been a destruction of evidence or a fabrication of evidence the whole question of the applicability of Darker to Australian Law would arise, but again it must be pointed out that in Darker the criminal proceedings had been permanently stayed and if Darker obtained a civil judgment there would be no consistency with any other judgment such as a conviction of a criminal offence.

40 In my view the granting of the leave sought in the current matter would be futile. In my view the case is covered by the principle of witness immunity. If I be wrong in that it is covered by the fact that what is sought to be established in the proceedings which leave is sought to commence out of time against the current defendant, is to impugn the result of the Family Law proceedings which is against every principle of public policy and might also raise a question inter se of the powers of the Commonwealth and the State.

41 Furthermore, even if I be wrong in that, the delay between the plaintiff’s becoming fully aware of his entitlement 17 December 2003 and the commencement of the current application by the filing of the summons on 19 January 2006 a period of over two years has not been explained adequately at all.

42 For those reasons the summons is dismissed.

43 I order the plaintiff to pay the defendant’s costs.

44 Pursuant to the Uniform Civil Procedure Rules 50.3 (1)(b) I extend time for plaintiff to appeal to the Supreme Court to fifty-six days.

45 Exhibits to be retained.

**********