Leonard v Pollock
[2012] WASCA 108
•21 JUNE 2012
LEONARD -v- POLLOCK [2012] WASCA 108
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 108 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:17/2011 | 26 MARCH 2012 | |
| Coram: | NEWNES JA MURPHY JA | 21/06/12 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ARCHIBALD LEONARD EDITH LEONARD DAVID POLLOCK JAMES POLLOCK ANN KENT DANIELLE KILMURRAY CHRISTOPHER VEITCH |
Catchwords: | Practice and procedure Appellants' action struck out as disclosing no cause of action Delay of over three years in filing appeal notice Application for extension of time to appeal dismissed Appeal against dismissal Relevant considerations on application for extension of time No satisfactory explanation for delay No reasonable prospect of success Claim of negligence causing psychiatric injury Family dispute No duty of care owed by respondents Application to admit fresh evidence Relevant principles Fresh evidence irrelevant |
Legislation: | Nil |
Case References: | CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 Cumins v Deputy Commissioner of Taxation (Cth) [2007] WASCA 30 Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 Girando v Girando (1997) 18 WAR 450, 454 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Shilkin v Taylor [2011] WASCA 255 Simonsen v Legge [2010] WASCA 238 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LEONARD -v- POLLOCK [2012] WASCA 108 CORAM : NEWNES JA
- MURPHY JA
- First Appellant
EDITH LEONARD
Second Appellant
AND
DAVID POLLOCK
First Respondent
JAMES POLLOCK
Second Respondent
ANN KENT
Third Respondent
DANIELLE KILMURRAY
Fourth Respondent
CHRISTOPHER VEITCH
Fifth Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : CIV 321 of 2007
Catchwords:
Practice and procedure - Appellants' action struck out as disclosing no cause of action - Delay of over three years in filing appeal notice - Application for extension of time to appeal dismissed - Appeal against dismissal - Relevant considerations on application for extension of time - No satisfactory explanation for delay - No reasonable prospect of success - Claim of negligence causing psychiatric injury - Family dispute - No duty of care owed by respondents - Application to admit fresh evidence - Relevant principles - Fresh evidence irrelevant
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
First Appellant : In person
Second Appellant : In person
First Respondent : Ms F A Stanton
Second Respondent : Ms F A Stanton
Third Respondent : Ms F A Stanton
Fourth Respondent : Ms F A Stanton
Fifth Respondent : Ms F A Stanton
(Page 3)
Solicitors:
First Appellant : In person
Second Appellant : In person
First Respondent : MDS Legal
Second Respondent : MDS Legal
Third Respondent : MDS Legal
Fourth Respondent : MDS Legal
Fifth Respondent : MDS Legal
Case(s) referred to in judgment(s):
CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172
City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120
Cumins v Deputy Commissioner of Taxation (Cth) [2007] WASCA 30
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Girando v Girando (1997) 18 WAR 450, 454
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Shilkin v Taylor [2011] WASCA 255
Simonsen v Legge [2010] WASCA 238
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317
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1 JUDGMENT OF THE COURT: On 14 May 2007, a deputy-registrar of the District Court struck out the appellants' statement of claim against the respondents on the ground that it disclosed no arguable cause of action and dismissed the action. More than three years later, on 1 October 2010, the appellants filed an appeal notice and sought an extension of time to appeal to a judge of the District Court against the decision of the deputy-registrar. The application for an extension of time and the appeal notice were dismissed by Stevenson DCJ on 2 February 2011.
2 The appellants filed an appeal notice in this court on 23 February 2011 but did not serve it until 10 March 2011, with the result that the appeal is out of time. The appellants therefore require leave to bring the appeal. On 27 July 2011, Pullin JA ordered that the application for leave be referred to the hearing of the appeal.
3 For the reasons which follow, we consider that leave to appeal should be refused and the appeal dismissed.
Background
4 The appeal arises out of an unfortunate breakdown in relations between the appellants on one side and their daughter (Julie) and son in law (the first respondent) on the other. The first respondent and Julie were married on 22 November 2008. The first appellant is the husband of the second appellant and the adoptive father of Julie. The second appellant is the mother of Julie. The second respondent is the first respondent's father and the third respondent is the first respondent's mother. The fourth and fifth respondents are friends of the first respondent.
5 In February 2007, the appellants (who have at all times acted in person) commenced an action in the District Court against the respondents. A statement of claim was filed by the appellants on 29 March 2007. It is not entirely easy to follow. However, in substance, the appellants alleged that up to October 2000 they had enjoyed a loving and happy relationship with Julie. They pleaded that in October 2000 Julie had entered into a de facto relationship with the first respondent and since that time their relationship with Julie, and with Julie's brother, James, had deteriorated. The appellants alleged that they had been accused of causing their children (Julie and James) and grandchildren (the children of Julie and the first respondent) serious harm, and that they were now excluded from the lives of Julie and their grandchildren. They further alleged that James had also ceased to have much contact with them.
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6 The appellants alleged that the 'loss of family relationships and vilification of the [appellants] was caused by the negligence of the [respondents]'. The appellants set out particulars of negligence in respect of each respondent. It is unnecessary to canvass those particulars in detail. There are some 24 particulars of negligence in respect of the first respondent alone. Suffice it to say that the appellants alleged, in effect, that the first respondent was negligent in that he had made a number of false and defamatory statements to Julie and others about them; that he had threatened, and by various means had attempted, to prevent the appellants from having any contact with Julie or their grandchildren; and that he had caused Julie to advise her brother to cease contact with the appellants.
7 In respect of the second respondent, it was alleged that he was negligent in that he had told the first respondent and others that the appellants had actively sought to cause the first respondent and Julie to break up; that he had caused the appellants to believe that he intended to separate Julie from her children; and that he had interfered in the bringing up of one of the grandchildren. Further allegations of a like nature alleging interference in the family relationship were alleged against the other respondents.
8 The appellants pleaded that as a result of the respondents' negligence they suffered anxiety, insomnia, panic attacks, depression and, in the case of the second appellant, a major depressive illness. They claimed damages for loss of enjoyment of life and loss of earning capacity.
9 The respondents filed a defence on 12 April 2007. It is in general terms but in substance denies the factual allegations made by the appellants and denies that they have suffered injury.
10 In the meantime, on 5 April 2007, the respondents applied for summary judgment under O 16 of the Rules of the Supreme Court 1971 (WA) or, alternatively, for an order under O 20 r 19(1) that the writ and statement of claim be struck out as disclosing no reasonable cause of action or on the ground that they were scandalous, frivolous or vexatious.
11 That application came on for hearing on 14 May 2007 before Deputy-Registrar Harman. The deputy-registrar concluded that the statement of claim disclosed no arguable cause of action. He struck it out and dismissed the action.
12 As mentioned, more than three years later, on 1 October 2010, the appellants filed an appeal notice, seeking to appeal to a judge of the
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- District Court against the decision of the deputy-registrar. Such an appeal was required to be lodged within 10 days of the decision of the deputy-registrar: District Court Rules 2005 (WA), r 15(2). The appellants therefore required, and applied for, an extension of time.
13 The application for an extension of time and the appeal notice came before Stevenson DCJ on 2 February 2011. The appellants attached a proposed amended statement of claim to an affidavit filed in support of the application. His Honour refused the extension of time and dismissed the appeal. The appellants seek to appeal against that decision.
The decision of the primary judge
14 The primary judge referred to four considerations as being relevant to the exercise of his discretion to extend time: the length of the delay, the reason for the delay, the appellants' prospects of success on the appeal, and the extent of any prejudice to the respondents if the time was extended. His Honour noted that the delay of more than three years was exceptionally long.
15 In relation to the reason for the delay, the primary judge observed that in their affidavits the appellants had said that over the period of the delay they had suffered bouts of depression caused by the respondents' conduct, and that they were physically and emotionally afflicted by their family problems and the health of their son, James. His Honour noted, however, that the second appellant had acknowledged before him that following the decision of the deputy-registrar the appellants had made a deliberate decision that, rather than appeal, they would give priority to other avenues to resolve their conflict with the respondents, including by resort to statutory agencies and the Family Court. They had also pursued what his Honour described as 'voluminous proceedings' against some of those involved in the proceedings before the registrar, including counsel for the respondents.
16 The primary judge noted that the second appellant had acknowledged that she was aware in May 2008 that the appellants could lodge an appeal. His Honour also pointed out that in a letter to the appellants of 23 December 2009 the principal registrar of the District Court had expressly referred to the time limit of 10 days to commence an appeal. Despite that letter, the appeal notice was not filed for another nine months. His Honour observed that there was no contemporaneous medical evidence to support the contention that the appellants were unable for medical reasons to pursue an appeal. He concluded that over the relevant period the appellants had been capable of commencing and
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- prosecuting appeal proceedings but had chosen not do so because they had decided to devote their energy and resources to other avenues.
17 Turning to the appellants' prospects of success on the appeal, the primary judge found that there were no facts pleaded in the statement of claim which were capable of giving rise to a relevant duty of care on the part of the respondents.
18 On the question of prejudice to the respondents, the primary judge observed that the action would require a factual enquiry in relation to events which had allegedly occurred between 2000 and 2006. The particulars of negligence were generally stated and did not properly inform the respondents of the specific conduct alleged by the appellants. The passage of time would inevitably affect the ability of witnesses to recall events and the circumstances of the events.
19 His Honour found that as the appellants had chosen to allow time to pass while they pursued other avenues of possible redress, it would be unjust to allow the appellants to resurrect the proceedings after such a long delay. His Honour went on to say that if he was wrong in that, an extension of time should in any event be refused on the ground that the claim had no prospect of success.
The disposition of the appeal
20 It is necessary to note at the outset that a number of the grounds of appeal assert error by the deputy-registrar. They are not relevant to this appeal and it is unnecessary to deal with them. This appeal is concerned only with the grounds of appeal which seek to impugn the decision of the primary judge.
21 There is one other matter that should be dealt with before turning to the specific issues which arise on the appeal. It appears that some of the appellants' grounds of appeal arise, at least in part, from an assumption by the appellants that because a matter was not expressly dealt with by the primary judge in his reasons for decision, it was overlooked or that his Honour (erroneously) failed to take it into account. That assumption is not well-founded. While reasons for decision must adequately disclose the intellectual process which has resulted in the decision (Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 [73]), it is not incumbent upon a judge to refer to all of the evidence and nor is it necessary that every contention put to the court be referred to in the reasons. Indeed, it is often neither possible nor desirable to do so. It is sufficient that the relevant evidence is referred to and any findings in
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- respect of disputed issues of material fact explained, and that the reasons adequately set out the basis for the decision: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27] - [28].
22 In this case there was a large amount of affidavit material before the primary judge, much of it irrelevant to the matter he had to decide. In addition, the appellants advanced a large number of contentions in the course of argument which were also irrelevant. The primary judge was not required to, and nor could he be expected to, canvass in his reasons all of the affidavit material or all of the contentions raised in argument. His decision did not involve the determination of any contentious questions of fact so it was unnecessary to examine the affidavit material in detail. The relevant facts and the basis of his Honour's decision are sufficiently stated in his reasons.
23 Against that background, we turn to the specific issues on the appeal.
24 Whilst the discretion to extend time to appeal must be exercised judicially, it is otherwise unfettered. The purpose of the discretion is to enable the court to do justice between the parties in the particular circumstances of the case: see Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 480. In the exercise of the discretion, the factors that will ordinarily be relevant are the length of the delay, the reason for the delay, the appellant's prospects of success on the appeal, and the extent of any prejudice to the respondents if the time was extended: see Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 [5] - [9]; Simonsen v Legge [2010] WASCA 238 [8]. Whether an appeal has some prospects of success is not decisive in the exercise of the discretion. Whilst it is the case that the time for appealing will not be extended unless the proposed appeal has some prospects of success, it does not follow that time must be extended if the appeal has prospects of success. The fact that the proposed appeal has prospects of success is a factor which might be outweighed by other factors: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [17].
25 It is also necessary to bear in mind that on an application of this nature the onus of persuading the court that the time should be extended lies on the appellant. It is incumbent upon the appellant to explain the delay and to justify the extension. And the greater the delay, the greater the need for a cogent explanation for it: Girando v Girando (1997) 18 WAR 450, 454; Cumins v Deputy Commissioner of Taxation (Cth) [2007] WASCA 30 [2].
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26 It was not contended by the appellants (correctly in our view) that the primary judge was in error in having regard to the matters that he did and we did not understand the appellants to contend that there were other relevant matters which his Honour should have taken into account but did not. Nor is there anything in the papers before this court to suggest that his Honour overlooked any relevant matter.
27 The appellants' first ground of appeal concerns his Honour's description of the delay of three years as exceptional. This ground of appeal is very difficult to understand. It is as follows:
His Honour acted on wrong principle in finding the appellants' delay was exceptional when the learned appeal judge allowed an extraneous and irrelevant matter guide him, namely, the appellants' views on the registrar's handing of the matter, an issue the respondents did not raise, which his Honour based on mistaken facts.
28 However, it appears from the appellants' written submissions that, in essence, they contend that the delay was not exceptional when regard is had to the reasons it occurred. That contention must be rejected. It will be necessary to come in due course to the reasons the appellants advance for the delay, but his Honour's description of the delay as 'exceptional' was entirely justified. Any appeal against the decision of the deputy-registrar was required to be commenced within 10 days. That time limit exists to ensure that appeals are instituted promptly, in order to achieve finality in litigation in a timely way.A delay of more than three years in instituting an appeal may not be unprecedented but it is certainly exceptional.
29 The grounds of appeal contain a large number of complaints about his Honour's conduct of the hearing, in support of the appellants' contentions, first, that he failed to afford them procedural fairness, in that he failed to allow them a reasonable opportunity to present their case, and, secondly, that he manifested bias against them. The complaints, which are common to both contentions, focus on allegations that the primary judge refused to accept material handed up by the appellants from the bar table, refused to admit additional evidence on which the appellants sought to rely, and continually and unnecessarily interrupted the appellants during the course of their submissions.
30 Having read the transcript of the hearing, we are satisfied there is no substance in the complaints. It is evident that in many cases the appellants were, perhaps understandably, not clear as to what was relevant to the issues before the primary judge and in the course of their
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- submissions they sought to venture into matters that were clearly irrelevant. It is apparent from the transcript that the primary judge gave the appellants considerable latitude but, inevitably, from time to time he had to intervene to direct them away from the irrelevant and back to the relevant. We do not accept that those interventions went beyond proper bounds. There is also nothing whatever in the transcript to support the appellants' submission that the primary judge treated them in a 'rude and disrespectful manner'. In fact, a reading of the transcript gives a quite contrary impression.
31 The additional documents which the appellants complain the primary judge refused to receive when they sought to hand them up from the bar table were, in our view, correctly rejected. They were produced at the hearing without notice to the respondents. The appellants had been given ample time to determine the evidence upon which they would seek to rely on the appeal and had previously filed and served two substantial affidavits. As the primary judge found, in the circumstances it would have been quite unfair to the respondents to allow the additional documents to go into evidence. Moreover, we do not consider that any of the documents, including the documents relating to the appellants' medical condition by which they appear to set such store, were material to the issues before the primary judge.
32 In our opinion, there was nothing in the way in which the hearing was conducted which denied the appellants procedural fairness or was capable of giving rise to a reasonable apprehension of bias on the part of the primary judge.
33 The appellants contend that his Honour's finding that they could have pursued an appeal much sooner if they had chosen to do so resulted from his misunderstanding or misapplication of the medical evidence. We do not accept that.
34 The appellants relied upon three letters from psychiatrists, two from Dr Roberts and one from Dr Linde. The first letter from Dr Roberts, dated 20 November 2006, was addressed to 'To Whom It May Concern'. In it, Dr Roberts stated that the second appellant had been suffering from a major depressive illness since March 2006. He went on to say (relevantly) that he was concerned the second appellant would not fully respond to treatment 'until the [dispute with the respondents] is resolved through appropriate legal actions'. The second letter, dated 21 February 2007, was addressed to Murdoch University, where the second appellant was studying for a law degree. The evident purpose of the letter was to
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- provide support for the second appellant's application for retrospective withdrawal from units which she had failed in second semester in 2004 and 2006 respectively. In the letter, Dr Roberts said that when the second appellant failed the units she had been experiencing 'extreme protracted stress'. Dr Roberts went on to say that he was confident the second appellant would be fully fit to resume her studies.
35 The letter from Dr Linde, dated 5 February 2008, was apparently addressed to the second appellant's referring doctor. In the letter, Dr Linde said he had found no evidence that the second appellant is suffering from depression but he had diagnosed (relevantly) 'much situational distress regarding children'.
36 There was no psychiatric or other medical evidence in relation to the first appellant. The appellants said, however, that by reason of his lack of relevant education the first appellant was entirely dependant upon the second appellant in relation to the conduct of legal proceedings. The medical condition of the second appellant was therefore determinative of the appellants' ability to pursue an appeal.
37 Accepting that for present purposes, there is nothing in the medical evidence which is capable of sustaining a contention that between May 2007 and September 2010 the appellants were prevented from commencing and pursuing an appeal, or substantially hindered in doing so, by the second appellant's medical condition. Nor is there any other evidence which might support that contention.
38 It is clear from the appellants' affidavits that at the time of the deputy-registrar's decision they were aware they could appeal against it and the second appellant acknowledged in the hearing before the primary judge that she became aware in May 2008 that there was a time limit on an appeal (ts 15). While it can be accepted that the appellants were experiencing personal difficulties over the relevant period, that did not prevent them from pursuing, with some energy, other perceived avenues of redress. As the primary judge noted, between the decision of the deputy-registrar on 14 May 2007 and the filing of the appeal on 1 October 2010 the appellants were involved in substantial proceedings in connection with the alleged conduct of the respondents and extensive correspondence with various third parties about it.
39 The delay of more than three years in commencing the appeal called for a very cogent explanation. The appellants' explanation fell a long way short of that. It is clear that the delay came about not because of any
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- incapacity on the appellants' part, but because, as the second appellant conceded before the primary judge, the appellants decided that rather than pursue an appeal they would devote their energy and resources to other avenues (ts 31, 33, 46). It is evident that they were not prepared to deviate from that course. Even when they were put on express notice of the time limit of 10 days to commence an appeal, the appellants waited another nine months before filing the appeal notice.
40 Moreover, there is no evidence the appellants ever informed the respondents that an appeal against the decision of the deputy-registrar might be pursued. The appellants' conduct was consistent with them having accepted the decision of the deputy-registrar and consequently having turned to other possible means of redress. The respondents were entitled to assume that was the case.
41 The appellants further contended that the primary judge had erred in finding that the respondents would suffer prejudice if the extension of time was granted. It is not easy to understand the basis of that contention. It appeared to be asserted that in light of the nature of their alleged conduct the respondents could not credibly assert that their memories of the events have faded.
42 In our view, prejudice of the nature referred to by the primary judge was inevitable. The appellants' allegations as to the respondents' conduct were couched in general terms in the statement of claim. The alleged conduct extended back to 2000 and, so far as can be discerned, involved things allegedly said and specific incidents (many of them of an apparently minor nature) that are alleged to have occurred in the course of the relationship between the parties over a period of some six years.
43 It was apparent from the defence the respondents filed to the statement of claim, and from the contemporaneous correspondence, that there were many serious and fundamental disputes of fact between the parties. In those circumstances, the prejudice that would be caused by substantial delay was obvious. It was therefore incumbent upon the appellants, if they sought to overturn the decision of the deputy-registrar and to pursue the action, to act promptly to pursue an appeal.
44 In our view, on what was before him the primary judge was entitled to find, as he did, that, irrespective of the merits of the appeal, in the circumstances it was not in the interests of justice to grant an extension of time and that the appeal should be struck out (ts 81). No error has been shown.
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45 On the appeal, the appellants sought to adduce additional evidence on the issue of delay. It is evident that the evidence is in the nature of new evidence, rather than fresh evidence; that is, it is evidence which, with the exercise of reasonable diligence, could have been discovered by the appellants prior to the hearing before the primary judge.
46 A heavy onus lies on an appellant who seeks to have new evidence admitted on appeal. It will normally be incumbent upon the appellant to provide an explanation as to why the evidence was not led at first instance. Where the evidence was deliberately withheld, that will be a factor which weighs heavily against the admission of the evidence on appeal: CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 [116]. Even where that is not the case, ordinarily the court will refuse to admit new evidence on appeal unless the court is satisfied that the new evidence would have led to a different outcome if it had been led below. That is because unless that condition is satisfied it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made below and to put that person to the expense, inconvenience and worry of a new trial, or in this case a trial: see CDJ v VAJ [111]; Shilkin v Taylor [2011] WASCA 255 [66] - [67].
47 The additional evidence was attached to an affidavit of the second appellant sworn on 15 February 2011. In the affidavit, the second appellant says that the evidence was not put before the primary judge because of the second appellant's health problems at that time. It consists of:
1. Several pages of notes made by an unidentified counsellor or counsellors at Murdoch University Counselling Service and two memoranda, dated 6 November 2008 and 8 January 2009 respectively, written by counsellors to members of the university administration. The first memorandum apparently relates to a request by the second appellant for deferred supplementary exams in two units she was taking and the second apparently relates to a request by the second appellant for approval for retrospective withdrawal from two other units.
2. A letter from Dr Roberts, dated 3 June 2011, addressed 'To Whom It May Concern' which states that the second appellant has 'been medically unfit to complete the appellants' case'. (That is obviously a reference to the appellants' case in this court, which was required to be filed by 30 March 2011, pursuant to r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA).) In the letter,
- Dr Roberts says that the second appellant has been suffering from a major depressive disorder since April 2006 which is in partial remission. He goes on to state that it is in the interests of the second appellant's health that the appeal to this court be heard and he expects the second appellant to be able to complete the appellants' case by 10 June 2011.
- 3. Two letters, dated 4 September 2007 and 24 December 2008 respectively, from the appellants to the respondents' solicitors. The first relates to the respondents' application for summary judgment and contains a large number of contentious assertions. The second makes more such assertions and informs the respondents' solicitors that, among other things, the appellants have made complaints to the police in relation to the matter and intend to commence proceedings in the Family Court.
48 It is difficult to accept that the second appellant's medical condition prevented the appellants from seeking to put that material into evidence before the primary judge when regard is had to the volume and nature of the evidentiary material they did put into evidence. In any event, there is nothing in any of the material which might assist the appellants. The relevant part of the letter from Dr Roberts, relating to the second appellant's mental health, adds nothing of substance to his letter of 20 November 2006, which the appellants put into evidence below. To the extent, if any, that the balance of the material might be admissible, none of it goes any way to providing a satisfactory explanation for the delay in commencing the appeal to the District Court.
49 The application to adduce the new evidence must be refused.
50 Notwithstanding his view that the application for an extension of time should be dismissed on the basis of delay alone, his Honour went on to consider the merits of the appeal and it is appropriate that we say something about them. In doing so, it is appropriate also to have regard to the terms of the proposed amended statement of claim, although in the end we do not think anything turns on whether that or the original statement of claim is considered.
51 There is, however, one particular feature of the proposed amended statement of claim which it is necessary to mention at the outset. It includes a claim against the respondents by James Leonard, as third plaintiff. He was not, however, a party to the writ and nor was he a party to the appeal. In the course of argument on this appeal, the appellants
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- accepted that for such a claim to be made it would be necessary to amend the writ to add James Leonard as a plaintiff. They maintained, however, that he wished to pursue a claim of the nature pleaded in the proposed amended statement of claim.
52 In the proposed amended statement of claim, the particulars of negligence have grown significantly in number although they are not substantially different in nature. More than 100 allegations of negligent conduct on the part of the first respondent are alleged. The pleas of negligence against the other respondents involve in each case a somewhat confusing mix of 'background facts' and allegations of negligent conduct.
53 The allegations of negligence against the first respondent fall into two categories: conduct involving the appellants' daughter and grandchildren, and conduct involving the appellants. The first category consists, in substance, of allegations that the first respondent failed to make sufficient provision for the needs of Julie and their children and that by his words and conduct placed them at risk of 'emotional, physical and psychological harm'. The appellants do not, however, plead that they had any involvement in any of the relevant events or how, or in what circumstances, they allegedly came to know of them. Nor do the appellants explain how this conduct is alleged to have contributed to the mental harm they plead they have suffered. The first category of allegations has no apparent connection to their alleged psychiatric injury.
54 The second category, the claims of negligent conduct by the first respondent involving the appellants, consist in substance of, first, allegations of various domestic incidents or statements made by the first respondent that the appellants say constitute harassment; secondly, conduct or statements made by the first respondent which the appellants say caused them to form a belief that the first respondent intended to prevent them from having contact with Julie and their grandchildren; thirdly, false statements made by the first respondent to third parties concerning the appellants and their conduct, including statements which ridiculed the second appellant; fourthly, false statements made by the first respondent and Julie in a letter to the appellants regarding the effect of the appellants' conduct on the first respondent and his family; and fifthly, false statements made by the first respondent to an unnamed third party that the appellants were mentally unstable.
55 The claim of negligent conduct against the second respondent involves allegations that he encouraged the first respondent to alienate the appellants from Julie and their grandchildren, and interfered in the
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- upbringing of the grandchildren. The allegations against the other respondents are, with respect, so vague as to be incomprehensible.
56 The first appellant alleges that that 'as the result of suffering ongoing emotional distress caused by the [respondents'] conduct' he has suffered serious psychological injuries including anxiety and vexation, insomnia, panic attacks and depression. The second appellant pleads to a similar effect but also alleges that she has suffered 'psychiatric injuries', being a 'major depressive illness'. On the appeal, the appellants' claim was put on the basis that they had both suffered psychiatric injury. The appellants claim damages, including aggravated and exemplary damages.
57 Making all due allowances for the fact that the appellants are unrepresented and that the way in which they have pleaded their case may obscure rather than elucidate it, we are unable to discern from it, or indeed from the substantial affidavit material that was before the court on the appeal, anything that might give the appellants an arguable claim in negligence.
58 It is apparent that the appellants' claims as pleaded, and as argued on the appeal, proceed upon the basis that reasonable forseeability of harm is sufficient to give rise to a duty of care in relation to pure psychiatric injury. However, whilst reasonable forseeability of harm is a necessary condition for the existence of such a duty of care, it is not of itself sufficient: Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 [42]; Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 [12], [37], [45] - [46], [139], [237], [250]. As Hayne J put it in Tame, the common law does not provide a remedy for all who suffer negligently inflicted harm, even if the actor could reasonably foresee that carelessness may cause harm of the kind which in fact is suffered [250].
59 In Sullivan v Moody, the appellants, the fathers of children who had been examined for evidence of sexual abuse, sued the respondents, doctors and social workers who had been involved in the examinations and the government agency by whom they were employed, for damages for negligence in respect of reports prepared by the respondents which said that the children had been abused. The fathers alleged that as a result of the negligent examination and reporting they had suffered, among other things, psychiatric injury. The actions were struck out as disclosing no cause of action. The High Court said:
But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is
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- subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care [42].
…
Developments in the law of negligence over the last 30 or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is 'fair' or 'unfair'. There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted.
The present cases can be seen as focusing as much upon the communication of information by the respondents to the appellants and to third parties as upon the competence with which examinations or other procedures were conducted. The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not [53] - [54].
60 In Tame, Mrs Tame sued the State of New South Wales for damages for psychiatric injury sustained as a result of being told (erroneously) that she had recorded a blood alcohol level of 0.14 following a motor vehicle accident in which she was involved. The wrong entry had been made by a police officer. It was held that the police officer did not owe Mrs Tame a duty to take reasonable care to avoid causing her psychiatric injury. Gleeson CJ observed:
The case of Mrs Tame provides a good example of the practical consequences of recognition of a general duty to take care not to cause emotional disturbance to other people. It was common ground in argument that, save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness.
(Page 18)
- Bearing in mind that the requirement of causation is satisfied if a defendant's conduct is a cause of the damage complained of, and the manifold circumstances in which one person's conduct may be a factor in inducing an emotional response in another, the consequence of imposition of such responsibility would be to impose an unacceptable burden on ordinary behaviour. Even accepting that recognisable psychiatric illness is a necessary condition of a plaintiff's claim, the development by Mrs Tame of a condition that was diagnosed in 1995 as psychotic depressive illness, in consequence of being informed by her solicitor, in 1992, that a police officer, in 1991, had made a clerical error in filling out an accident report form, suggests the implications of the imposition of a duty of the kind in question [7]. (original emphasis)
61 It is evident that the gravamen of the appellants' claim is that the respondents (and in particular the first respondent) have caused them to suffer psychiatric injury by making false and damaging statements about them which have alienated the appellants from their daughter and prevented them from having contact with their grandchildren. It is, of course, neither necessary nor possible to reach any view as to whether the alleged conduct of the respondents in fact occurred or whether it occurred in the circumstances alleged by the appellants.
62 The conduct in which it is alleged the respondents have engaged has been described earlier. It is alleged to have occurred in the context of a long-running and acrimonious family dispute. It is regrettably the case that acrimonious family disputes of one sort or another are not uncommon and invariably, indeed perhaps inevitably, give rise to strong emotional reactions by those involved. A great deal of emotional disturbance may be caused to those affected by things that are said or done (rightly or wrongly) in the course of such a dispute. But that does not mean that the law of negligence has a role to play. In our view, in this case it plainly does not.
63 There is nothing on the facts of this case which is arguably capable of giving rise to any relevant duty of care on the part of any of the respondents. Any such a duty in the present case would 'subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms': Sullivan v Moody [42]. As in Sullivan v Moody, the complaints by the appellants that they were injured by what was said to and about them intersects with the law of defamation, which resolves the competing interests of the parties through well-developed principles about privilege and the like. The law of negligence cannot be invoked to resolve the appellants' complaints on a different basis. And to the extent that the appellants allege that their psychiatric injury was caused by conduct of the respondents in attempting
(Page 19)
- to prevent, or preventing, the appellants from having contact with their grandchildren, the appellants' complaints intersect with family law and statutory provisions which exist to balance the complex rights, duties and interests of persons who claim an entitlement to contact with familial children, and to ensure that the interests of the children remain paramount.
64 As the respondents owed to the appellants no relevant duty of care, the appeal had no reasonable prospect of success. Accordingly, as the primary judge found, no purpose would be served by extending the time to appeal.
65 We would add that any action by James Leonard on the basis set out in the proposed amended statement of claim is similarly doomed to fail.
66 The appellants also appeal against the costs order made by the primary judge. His Honour ordered that the appellants pay the first to fifth respondents' costs of the appeal to be taxed without regard to the limits in the relevant costs scale. The appellants submit that his Honour erred in allowing the costs to be taxed in that way because he was 'punishing the appellants' for their failure to file documents for the hearing in accordance with the time limits set out in the District Court Rules without considering the respondents' (unspecified) failures to comply with 'a large number' of rules.
67 This ground of appeal proceeds upon a misconception of his Honour's reasons for making the cost order in that form. It is clear that his Honour made the order, not by way of punishment of the appellants for their lateness in filing material for the hearing, but because their failure to file it on time imposed a considerable burden on the respondents' solicitors in their preparation for the hearing (ts 86). In the circumstances, it was open to his Honour to order that the costs be taxed without regard to the limits in the costs scale. The appeal against the costs order is without foundation.
68 We would merely add that it does not follow from the order that the costs will be allowed in excess of the limits in the costs scale. The respondents must satisfy the taxing officer that they properly and reasonably incurred costs in excess of the relevant limits.
69 As none of the grounds of appeal have been made out, the appeal should be dismissed.
(Page 20)
Conclusion
70 We would:
1. dismiss the application to adduce additional evidence;
2. refuse the application for leave to appeal, and;
3. dismiss the appeal.
2
15
1