Gersbach v Gersbach

[2020] NSWCA 153

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gersbach v Gersbach [2020] NSWCA 153

Hearing dates:

17 July 2020

Decision date:

23 July 2020

Before:

Macfarlan JA at [1];
Leeming JA at [2];
White JA at [51].

Decision:

Summons filed 20 March 2020 dismissed, with costs.

Catchwords:

PROCEDURE – appeals – extension of time – application for extension of more than a year to bring appeal – applicant mentally unwell – poor prospects of success – change of position by respondent during previous year – more than usual prejudice in responding to appeal – extension refused

Legislation Cited:

Limitation Amendment (Child Abuse) Act 2016 (NSW)

Cases Cited:

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gersbach v Gersbach [2018] NSWSC 1685

R v Tillott (1995) 38 NSWLR 1

Category:

Principal judgment

Parties:

Jayne Gersbach (Applicant)
Rodney Gersbach (Respondent)

Representation:

Counsel:
Applicant in person
G McNally SC (Respondent)

Solicitors:
Breene & Breene Solicitors (Respondent)

File Number(s):

2018/371542

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2018] NSWSC 1685

Date of Decision:

9 November 2018

Before:

Garling J

File Number(s):

2013/327902

Judgment

1. MACFARLAN JA: I agree with Leeming JA.

2. LEEMING JA: Ms Jayne Gersbach seeks an extension of time to appeal from the judgment against her, following a nine day hearing in the Common Law Division, given on 9 November 2018: Gersbach v Gersbach [2018] NSWSC 1685. At that trial, she was represented by a firm of solicitors who briefed senior and junior counsel. The gravamen of her claim is that, while a child (and indeed after she turned 18) she was sexually abused by her father, Mr Rodney Gersbach, who was the defendant at trial and is the respondent in this Court. She had commenced proceedings in 2013, and her action on any view became permitted by reason of the amendments introduced, with retrospective effect, by the Limitation Amendment (Child Abuse) Act 2016 (NSW). The trial judge gave judgment for the defendant. His Honour in accordance with usual practice calculated damages notionally and would have ordered $679,950 had he accepted the plaintiff’s case.

3. A notice of intention to appeal was filed on 3 December 2018. It was filed on behalf of the applicant by the solicitors who had appeared for her at trial. The document was given a file number “2018/371542”. As will be seen below, it was followed by a request for advice on the prospects of an appeal from junior counsel who had appeared at trial. The consequence of the notice was that the time for filing of an appeal was extended to 9 February 2019. It stated:

“NOTICE

The applicant intends to commence appeal proceedings within 3 months after the material date, that is on or before 9 February 2019.”

4. No notice of appeal has ever been filed. Rather, on 20 March 2020, more than a year after the time for filing an appeal had expired, the applicant filed a summons seeking leave to appeal. The summons was given the same 2018 file number as had (erroneously) been given to the notice of intention to appeal, but there is no dispute that what matters is the 16 month delay between entry of judgment and filing of the summons. The latter appears to have been drafted by the applicant without the assistance of a lawyer. At subsequent directions hearings in this Court, the applicant has been unrepresented, and the voluminous materials supplied in support of her application suggest that she has been unrepresented throughout the entirety of 2020.

5. The applicant did not and does not need leave to appeal. She does, however, need a substantial extension of time to bring an appeal. The fact that she has used the wrong document to bring proceedings in this Court should not be held against her. Thus, in June 2020, amendments were made to the summons so that in substance it could be treated as an application to extend time. That application was set down, separately from any appeal, for hearing in this Court constituted by three Judges of Appeal on 17 July 2020.

6. The respondent supplied short submissions opposing the extension of time on 13 July 2020. It was clear that the applicant had received those submissions and she had ample opportunity to respond to them.

Respondent’s submissions

7. The respondent’s submissions correctly identified that the most important matters for consideration by this Court were the length of the delay, the reason for the delay, the nature of the case sought to be advanced if the extension of time were granted, and the extent of any prejudice suffered by the respondent. It will be convenient first to identify the matters underlying the respondent’s opposition to the application for an extension of time.

8. The respondent submitted that the delay of more than a year was substantial. The respondent invited, in both written and oral submissions, this Court to find that the reason for the delay was the fact that junior counsel who had appeared for the applicant at trial had given advice on prospects. Counsel’s advice had been included in the voluminous materials supplied in support of her application and was also annexed to the respondent’s solicitor’s affidavit. There was no suggestion that the waiver of privilege was other than advertent. Counsel’s advice concluded:

“[M]y review of this matter does not lead me to form an opinion that, given the authority to which I have referred, Ms Gersbach is likely to succeed on appeal. I therefore am not willing to draft a notice of appeal. I intend to return the brief in this matter. I can well understand that Ms Gersbach might be dissatisfied with my opinion, and if it were possible for other experienced counsel to consider the matter, then I consider that might provide Ms Gersbach with some reassurance.

Nevertheless, based on my review of this matter, I am not, unfortunately, able to recommend an appeal.”

The advice was dated 21 January 2019.

9. The respondent also relied upon evidence that, after the time for lodging an appeal had expired, the respondent had retired from his legal practice as a solicitor and no longer has an income that could be used to meet the costs of any appeal. The respondent submitted that relevant to prejudice was the unlikelihood of the applicant being able to pay any adverse costs order of this Court. The costs ordered against her at first instance have not been sought to be recovered.

10. The respondent also contended that the foreshadowed appeal was not fairly arguable, although those submissions were hampered by the absence of any notice of appeal. Essentially, this submission was based upon the proposition that the primary judge accepted the evidence of the respondent, the applicant’s mother (who also had been accused of participating in some of the assaults) and the evidence of her two sisters, to the effect that the applicant’s assertions that the respondent had abused them were untrue and that the applicant had admitted that the sexual assaults had not happened and that “the psychologist put it in my head”. The primary judge also accepted evidence from a psychologist and sexual assault counsellor that false memories of sexual assaults could be developed by writings and the suggestions of a therapist ([375]-[390]). The primary judge concluded that some of the applicant’s allegations were simply invented ([405]) and others were based on false memories ([409], [421], [429]). The primary judge referred also to the lack of corroboration of and inconsistency in the applicant’s complaints. The respondent contended that this was a case where the difficulties identified in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23] would be at the forefront.

11. It will be seen that the submissions as to the underlying lack of prospects of an appeal accorded with the advice of junior counsel who had appeared at trial.

Applicant’s oral submissions

12. The applicant has been given a very substantial opportunity to present the case she seeks to advance for an extension of time. That is reflected in the volume of material she has been permitted to file and rely upon, and the oral submissions she was permitted to make.

13. I mean no disrespect, but a deal of what was put orally was difficult to comprehend, reflecting at least in part the obvious distress of and stress suffered by a woman who is quite unwell attempting to develop submissions in Court. Nonetheless, especially when directed to the matters of greatest significance concerning the delay in her application, the oral submissions presented by the applicant amounted to the following five points:

1. she had received advice that an appeal was unlikely to succeed, and only more recently had come to a different view;

2. she had been traumatised, originally as a child and more recently by the litigation experience, and could not bring herself even to read the lengthy judgment at first instance until recently;

3. she had received trauma therapy in order to be able to read the judgment;

4. she was only then able to read it and make a series of comments on the points in the judgment with which she disagreed; and

5. in light of the abolition of the limitation period to bring claims of child sexual assault, additional liberality should be given to the time within which to bring an appeal.

14. Those submissions are to be read in the context of what may be gleaned from the written materials which the applicant has supplied. The voluminous written materials provided by the applicant assert that in 2019 she suffered from botched plastic surgery and dental treatment and was occupied with a claim for total and permanent disability cover and workers’ compensation

Applicant’s written materials

15. The written materials supplied by the applicant comprise some 1,500 unpaginated pages. In the absence of any index or pagination, the most transparent course is to summarise them in the order the documents took in the three large folders supplied by the applicant.

Two page handwritten submissions

16. There is a two page hand-written document within the draft notice of appeal with a heading “grounds of appeal”, plainly written by the applicant without the assistance of a lawyer. After dealing with the definition of “trauma”, the document maintains that the trial judge was wrong to accept the evidence from a psychiatrist that her father had paid who “doesn’t know me, he met me once or twice”. That may be inferred to be a reference to Dr Phillips, who gave evidence that “the most likely explanation for the plaintiff’s accusations against her father was through the development of false memory” ([375]). The document asks how the applicant can give direct evidence when her father “silenced me + my mother”. Much of the document refers to claimed medical negligence suffered by her plastic surgery and certain dental treatment. The document refers to her receipt of workers compensation for “aggravated/exacerbated pre-injury of PTSD” which may be read as asserting that it corroborated her claims.

17. The document also states “EMDR has brought me here”. I understand “EMDR” to be an acronym for Eye Movement Desensitization Reprocessing, a mode of treatment discovered in California in the 1980s, which remains intensely controversial amongst psychologists and psychiatrists, but is used by some, and others without university qualifications, who find it useful in some cases. The difficulties occasioned in criminal trials are discussed in R v Tillott (1995) 38 NSWLR 1. It may be inferred (in light of Ms Higgins’ report mentioned below) that at least part of the “trauma therapy” which the applicant says was necessary in order to enable her to read the judgment was EMDR.

18. Parts of the document refer to the workplace incidents and the errors which occurred in the plastic surgery which the applicant wishes to have fixed.

Professional literature and guidelines

19. The materials include some professional literature and guidelines concerning child sexual abuse, some materials published by the Domestic Violence Resource Centre Victoria, the organisation “Beyond Blue”, some posts from the National Eating Disorders Association blog, some academic literature (including “Understanding the process of child sexual abuse disclosure: What does the research tell us?”) and a publication from the Australian Institute of Family Studies headed “The long-term effects of child sexual abuse”.

20. All this material is general; none is written with Ms Gersbach’s personal circumstances in mind.

Ms Higgins’ report

21. In a different category is a report dated 18 December 2019 by Ms Rebecca Higgins, a clinical director of a practice who is certified to perform EMDR. The report states that in the 12 week period between 2 October and 18 December 2019, she has conducted fifteen 90-minute sessions, predominantly for EMDR treatment and that there has been some improvement in her self-esteem. Part of the report deals with the litigation:

“A significant issue for Jayne was the unfairness of not getting justice in the court case against her father. Jayne sued her father for sexual abuse Jayne sustained in childhood. Jayne recounts that the Judge ruled in favour of her father, citing that Jayne had “false memories”. This trauma has significantly impacted her “getting stuck” on the issue around false memories. Given my close contact with Jayne over the past few months, I have no doubt these memories are real to Jayne. Research suggests that Jayne’s diagnosis and behavioural patterns align with chronic childhood neglect, sexual and psychological abuse. I do not doubt that Jayne has sustained the trauma she recounts.”

22. The report also gives content to the complaints made concerning her dental and plastic surgery treatment.

23. Perhaps the most powerful part of the report is the reference to the fact that the surgeon who performed the plastic surgery of which the applicant complains took out an AVO on her, seemingly following what she regarded as the applicant’s obsessive pursuit of her.

24. The report goes on to refer to the applicant’s obsessive behaviour, and the fact that she will then turn her attention on

“the service provider, doctor, therapist, fellow recovery companions, caseworkers etc… Jayne will contact them by phone, text or email becoming compulsive, abusive and threatening.”

25. The document is helpful insofar as it confirms to my mind, and I proceed on the basis, that the applicant was during 2019 suffering from serious mental unwellness.

Advice from junior counsel and annotated judgment

26. The applicant’s materials also include the advice from counsel to which reference has already been made.

27. They also include the lengthy judgment at first instance, many pages of which are annotated with the applicant’s handwriting which disclose the dissatisfaction she has with the judgment. For example, on the front page is written:

“Causes of Action – defamation

– I don’t have false memories

– Fraud – I’ve been traumatised from Rod + court case

– Intentional infliction of emotional distress, sexually + physical assault personal injury”

28. Many of the paragraphs dealing with the evidence at trial have comments in handwriting. Some express disagreement with what is recorded. Others indicate additional matters which go beyond the reasons (it is not clear whether they go beyond the evidence). For example, against [146] where the primary judge recorded that there seemed to have been no further police involvement with the plaintiff and her complaints of sexual assault, there is added:

“- the police wouldn’t do anything why would I go back plus I forgot about them. I went to Penrith police xmas just gone 25/12/19.”

29. Against the comment ([148]) that the applicant gave a history of severe physical abuse from the age of 5 years until she was about 14 years old there is the comment:

“- there were that many incidents in the first room down the hall on the right + I was in + out of that room – like groundhog day hard to separate as each was very similar.”

30. Some of the comments do not relate to the judgment. Two are of some importance because they bear upon the applicant’s circumstances between February 2019 and March 2020. First, on page 2 of the judgment, there is an entry:

“11.3.2020 – I just had a car accident today.”

31. At the conclusion of the judgment there is this annotation:

“7.3.2020 – I’m quite ‘distant’ from this but need to get it done – I don’t want to spend time on it: it’s painful plus my teeth + head aren’t comfortable. [The daughter] comes home tonight. Can I sit with judges + go through this please, from about paragraph 99 onwards… it’s taxing, depressing, my face…”

The handwritten submission

32. There are some 55 handwritten pages containing an account of the applicant’s evidence, what appears to be the layout of the family home and recollections of her early childhood. Much is chaotically expressed. Parts of it recount, graphically, what is said to have been the sexual abuse inflicted upon her. There is no occasion to summarise it. I have read it all, and none of it is directed to the explanations for the delay, save for the fact that the writing is consistent with a mentally unwell person.

Text messages

33. The documents also include some text messages between what appears to be the applicant and unidentified correspondents. It may that at least two of these were friends who attended high school with the applicant (that is something that I infer from some of the handwriting on the pages). Whether the messages were in evidence is not clear.

Plastic surgery

34. The documents also include a fee letter and receipt dated 27 June 2019 for the applicant’s cosmetic procedure.

Workers compensation claim

35. There is a letter dated 22 October 2019 from a firm of solicitors to the applicant concerning a workers compensation claim. It suggests that she attended that firm shortly before 22 October 2019 but there is no information about the nature of the claim. There is also a draft document concerning a statement of claim arising out of a car accident. Many of these pages are struck though in handwriting with the word “void”.

Recent emails

36. Shortly prior to the hearing, the applicant supplied, by email, a handwritten reference from a friend who said she had known the applicant for almost 20 years, and believed that she had suffered abuse at the hands of her father.

37. The applicant also supplied an email from an organisation which sources expert evidence opinions. Its response, in February 2020, was that it was unable to assist her request for expert evidence in relation to a plastic surgeon because it did not assist unrepresented litigants.

38. By a further email the applicant supplied a decision of the New South Wales Court of Criminal Appeal and a chapter from the benchbook on personal violence offences.

Other documents

39. The applicant also provided a draft notice of motion and affidavit, presumably in support of the notice of motion, dated 14 May 2020. A number of medical examinations with respect to the applicant’s mental health and eating disorder have been included in the materials supplied to this Court, as well as numerous pages of email correspondence between the applicant and the dental surgeon responsible for her dental treatment. None of these appear to be directly relevant to the application for an extension of time.

Emails following 17 July hearing

40. After judgment was reserved, the applicant supplied a further email, containing a document prepared by a firm of solicitors summarising the effect of the Limitation Amendment (Child Abuse) Act 2016. She says that this means she does not require an extension of time. The document states, accurately, that the limitation period for “actions” has been abolished. It says nothing about the time limits for bringing an appeal.

41. The applicant also supplied, on 21 July 2020, a typed submission in reply, and attached her handwritten comments on one of the affidavits relied on by the respondent. Notwithstanding the absence of leave, I have read the documents. Parts of the submission are directed to explaining the delay. They reiterate, and to an extent elaborate on, what has been summarised above. Part of the submission and part of the handwritten comments are critical of aspects of the respondent's evidence. The submission repeats her belief that as a result of the legislation enacted in 2016, she does not need an extension of time.

Conclusions

42. I proceed on the basis, favourably to the applicant, that she has during the relevant 13 months from February 2019 until March 2020 suffered from a series of physical and (principally) psychological injuries. I am also prepared to proceed on the basis, favourably to her, that the process of engaging with and seeking to challenge the reasons of the primary judge, which are replete with adverse findings in relation to matters which she believes occurred and have drastically altered her life, has been traumatising, difficult and upsetting. Against that, there is no medical or psychiatric evidence per se explaining that her disabilities have wholly precluded her from bringing an appeal.

43. I can see why the applicant believes that the abolition of limitation periods for child sexual abuse might have a similar effect on the time for bringing an appeal. However, that is not correct. The policy justification which prompted The Royal Commission into Institutional Responses to Child Sexual Abuse to recommend relaxation of limitation periods for bringing proceedings has no application to appeals, and the legislative amendments did not affect the time periods for bringing appeals. A dissatisfied litigant has 28 days to appeal, which may be extended to 3 months if a notice of intention to appeal is filed.

44. I have no doubt that the applicant was told that she had 3 months to appeal. She must have given instructions in order for the notice of intention to appeal to have been filed, and she unquestionably received written advice from junior counsel on the prospects of an appeal.

45. Even so, I shall proceed on the basis, favourable to the applicant, that her unwellness has prevented her from bringing an appeal in a timely way.

46. In light of the importance of the matter to the applicant, and her evident inability to identify legal error, I have read the reasons of the primary judge with care. I agree with the conclusion expressed by the applicant’s junior counsel and advanced by the respondent that the prospects of success of an appeal are, at best, weak. No grounds have been identified. The appeal presents as one where substantial deference must be given to the advantage enjoyed by the primary judge who saw the witnesses give such diametrically opposed evidence of things as to which one side must be wrong. True it is that some judgments appear at first blush to be plausibly reasoned, only to be shown in light of all of the evidence not to be securely founded. However, the assessment of prospects can only take place on the basis of the material provided, and in this case, that was in the absence of any grounds of appeal, any submissions directed to errors in the reasoning, and most of the material on which the primary judge relied.

47. There is in addition a powerful case for prejudice on the part of the respondent whose unchallenged evidence is that he retired from his practice following the expiration of time within which to appeal. He said that he would not have done this if an appeal had been commenced. Even though his solicitors seem to have acted for him without charge, he still incurred substantial costs for counsel at trial in the form of disbursements, and the costs associated with defending an appeal would be substantial.

48. Indeed, what has already been revealed by the voluminous nature of the present application persuades me that merely preparing for this appeal and responding to such materials as might be provided would be considerably more arduous than would ordinarily be the case.

49. The real problem faced by the applicant is that, unlike at trial, she has not been able to obtain the assistance of lawyers. Her former junior counsel, and presumably the remainder of her legal team, is unwilling to act for her. Every aspect of this application persuades me that the ordinary prejudice occasioned upon a respondent to an appeal would be significantly exacerbated by the applicant’s inability to marshal her thoughts and direct attention to such appellable errors as there might be in the judgment at first instance.

50. This is a clear case for refusing an extension of time. It has not been shown that any useful purpose would be served by granting an extension, and substantial prejudice to the respondent has been established. I propose that the summons filed 20 March 2020 be dismissed, with costs.

51. WHITE JA: I agree with Leeming JA.

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Decision last updated: 23 July 2020