Lovejoy v Carp & Ors
[1999] VSC 223
•18 June 1999
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION Do not Send for Reporting Not Restricted
No. 4138 of 1994
| ADAM ACINTYA LOVEJOY | Plaintiff |
| v | |
| LEON CARP AND ORS | Defendants |
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JUDGE: | O'Bryan J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 2 and 3 June 1999 | |
DATE OF JUDGMENT: | 18 June 1999 | |
CASE MAY BE CITED AS: | Lovejoy v. Carp & Ors | |
MEDIA NEUTRAL CITATION: | [1999] VSC 223 | |
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Limitation of Actions Act ss.5, 23 and 23A – Claim for breach of fiduciary duty and duty of good faith – Striking out claim for want of prosecution – Rules of Court, R24 – Striking out pleadings Rule 23.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr D.A. Perkins | Anderson Rice |
| For the First Defendant | Mr J.M. Forrest QC with Ms M.A. Hartley | Blake, Dawson, Waldron |
| For the Second, Twelfth, Thirteenth and Twentieth Named Defendants | Mr J.M. Forrest QC with Mr N. Fowler | J.W. Ball & Sons |
| For the Third to Eleventh, Fourteenth to Nineteenth and Twenty-first to Thirty‑Third Defendants | Mr P. Golombek | Ronald C. Beazley Victorian Government Solicitor |
HIS HONOUR:
It is a daunting task to introduce in an intelligible narrative all the parties and the many causes of action in this proceeding which commenced with the issue of a Writ on 17 January 1994. Thirty three defendants are named in the Writ. I propose to identify each defendant by a number for convenience.
The applications before the court relate to the Limitations of Actions Act 1958 and the Rules of the Supreme Court in civil proceedings.
The plaintiff caused a Summons to be filed on 20 October 1998 seeking orders that the period within which an action on the cause of action may be brought be extended pursuant to s.23A of the Limitation of Actions Act 1958 ("the Act"). When the matter was argued Mr Perkins of counsel who appeared for the plaintiff indicated that he proposed to rely upon an alleged "disability" in the plaintiff to which s.23 of the Act relates. The ambit of the application was considerably widened as a result and raised questions of considerable importance.
The defendants represented by Mr Forrest, senior counsel, who appeared with Mr Hartley and Mr Fowler (Defendant 1, Defendant 2, Defendant 12, Defendant 13 and Defendant 20) are all medical practitioners who allegedly treated the plaintiff negligently between 1978 and 1987.
By Summonses dated 12 June 1998 (Defendant 1) and 15 June 1998 (Defendants 2, 12, 13 and 20) the defendants represented by Mr Forrest applied to have the proceeding stayed or that there be judgment for them because all the causes of action are statute barred by s.5(1) of the Act or pursuant to Rule 23.01. Alternatively, that summary judgment be ordered pursuant to Rule 23.03.
The defendants also applied pursuant to Rule 24 and/or the inherent jurisdiction of the court that the proceeding be dismissed for want of prosecution.
The defendants represented by Mr Golombek are Defendants 6, 7, 8, 10, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33. Defendant 33 (The State of Victoria) is allegedly vicariously liable for the tortious actions of the defendants represented by Mr Golombek upon the basis that each of them was an employee of the State of Victoria at a relevant time.
Defendants 3, 4, 5, 9, 11 and 21 were not represented.
Defendant 3 was deceased before the Writ was issued. Defendants 4 and 5 are Police Person 1 and Police Person 2, unidentified by name, who allegedly unlawfully arrested and detained the plaintiff in an unlawful conspiracy with Defendant 3, a police surgeon, on 16 June 1982. The Writ asserts that Defendant 33 is vicariously liable for their wrongful action.
Defendants 9 and 11, both medical practitioners, were not served with the Writ. Defendant 21, a police officer, was not served with the Writ. The plaintiff amended the statement of claim (paragraphs 126 and 127) effectively to remove Defendant 21 and to plead the cause of action which allegedly accrued on 9 July 1985 against Defendant 22 alone.
It may be helpful to group the defendants represented by Mr Golombek. The first group were at all material times police surgeons or police doctors. Defendants 6, 7, 10 and 16 are in this group. The second group were at all material times police officers. Defendants 14, 15, 17, 18 and 19, 22 and 29 to 32 are in this group. The third group were at various times the Superintendent in charge of Royal Park Hospital. The RPH is not alleged to be a legal person in the statement of claim but the Superintendent of the hospital each time the plaintiff was a patient in the hospital is sued. The fourth group were at various times Chief Commissioner of Police and allegedly under a duty (a) to avoid the improper use by police and police surgeons of the provisions of the Mental Health legislation and (b) to ensure that the use by police and police surgeons of the provisions of the Mental Health legislation was appropriate. Defendants 23 and 24 are in this group. The fifth group is the State of Victoria, Defendant 33.
The causes of action alleged in the Writ are many and varied and accrued as causes of action as long ago as 1977, in one case, and on various dates thereafter up to 16 January 1988, six years and one day before the Writ was issued.
By Summons dated 15 June 1998 the defendants represented by Mr Golombek sought the same orders as the defendants represented by Mr Forrest, save Defendants 14, 15, 16 and 31. Defendants 14, 15 and 16 allegedly unlawfully arrested and detained the plaintiff on 16 January 1988. The limitation period expired on or about 15 January 1994, a day or two before the Writ issued and the causes of action were, therefore, statute barred on 17 January 1994. Defendants 14, 15 and 16 did not plead that the causes of action were barred by the Act because their lawyers misread the date on the Writ as 7 January and believed the Writ was issued within time. A Master refused Defendants 14, 15 and 16 leave to amend their defences to plead the limitation defence. Two causes of action are pleaded in the Writ against Defendant 31. The first claim alleges assault and "threatened eviction" of the plaintiff from his home on 3 December 1987. Defendant 31 has pleaded this cause of action is statute barred. The second cause of action alleged against Defendant 31 relates to an alleged assault on 5 January 1988 by both Defendant 31 and Defendant 32. Both defendants plead the cause of action is statute barred.
The allegations made by the plaintiff may be classified as follows:
1.That medical practitioners prescribed a drug, Duromine, to the plaintiff as an appetite suppressant. The plaintiff alleges their treatment was negligent and caused him injury loss and damage. Defendants 1, 12 and 13 are in this class and the treatment was between 1978 and 1987.
2.That medical practitioners undertook the psychiatric care of the plaintiff and treated him negligently causing him injury loss and damage. Defendants 2 and 7 are in this class and the treatment was between 1979 and 1984.
3.That medical practitioners improperly or unlawfully certified the plaintiff pursuant to the Mental Health Act 1958. Defendants 3, 6, 8, 10, 16 and 20 are in this class and the events occurred between 1982 and 16 January 1988.
4.That police officers improperly arrested and/or assaulted the plaintiff causing him injury loss and damage. Defendants 4, 5, 14, 15, 17, 18, 19, 22, 29, 30, 31 and 32 are in this class. The events occurred between 1985 and 16 January 1988.
5.That Chief Commissioners of Police from time to time failed to perform their duties. Defendant 23, between 13 June 1977 and 28 November 1987 and Defendant 24, between 29 November 1987 and 16 January 1988.
6.That Chief Executive Officers at Royal Park Hospital ("RPH") failed to perform their duties from time to time. Defendant 25 for part of the period 1978 to 1988, Defendant 26 for part of the period 1978 to 1988, Defendant 27 for part of the period 1978 to 1988 and Defendant 28 for part of the period 1978 to 1998.
7.That the State of Victoria is vicariously liable for the wrongful acts of its servants and agents between 1978 and 16 January 1988.
The causes of action arising from the plaintiff becoming a patient of RPH between 22 September 1978 and 11 October 1978 include unlawful imprisonment, assaults and mistreatment. The statement of claim also refers to unlawful incarcerations of the plaintiff in RPH on numerous occasions between 1978 and January1988 during which occasions he was assaulted and unlawfully restrained causing him injury loss and damage.
I have been unable to determine the precise dates when each of the Defendants 25, 26, 27 and 28 was Superintendent and/or Chief Executive Officer of RPH. It is not clear from the statement of claim when each of those defendants was in charge of the hospital when the plaintiff was an inmate.
At least six general causes of action are pleaded against the defendants:
A.Negligence in prescribing Duromine and/or failing to warn of its side effects.
B.Unlawful arrest by police officers.
C.Unlawful certification of the plaintiff pursuant to the Mental Health Act 1958 causing him to be unlawfully imprisoned or restrained.
D.Mistreatment of a medical kind whilst detained at RPH.
E.Unlawful assaults by police officers and medical persons.
F.Negligence in psychiatric treatment by private doctors.
A schedule is attached to these reasons for judgment to facilitate access to paragraphs of the statement of claim linked to various defendants. An attempt has been made to show when a particular cause of action affecting a particular defendant accrued and the period of delay; delay being the time from accrual of the cause of action to the making of the application for an extension of time pursuant to the Act. Accrual of a cause of action cannot be determined precisely in the case of some defendants. In the case of Defendant 1 the plaintiff alleges he consulted the doctor on eight days between 15 April 1978 and 27 July 1984. Defendant 1 denies being consulted by the plaintiff on the first and last days. The cause(s) of action accrued, possibly, on 15 April 1978 or possibly, on 27 July 1984. The period of delay may be between 20 years and 14 years.
In a number of paragraph s of the statement of claim the plaintiff alleges that persons owed him "fiduciary obligations": (paragraph s 20, 29, 51(c), 84(c) and 133(c)). This allegation is made against RPH and Defendants 2, 3 and 6. In a number of paragraphs of the statement of claim the plaintiff alleges that certain police officers and police doctors were under a duty to the plaintiff "to act in good faith". (Paragraphs 73(h), 84(c), 114(b), 133(d) and 134(b)). This allegation is made against Defendants 3, 6, 17, 18, 19 and 22.
The Limitation of Actions Act 1958 does not provide a limitation period for actions for breach of fiduciary duty nor for breach of a duty of good faith. Mr Perkins did concede that the damages claimed are for personal injuries but did not concede that the claims for damages for breach of fiduciary duty and breach of a duty of good faith were statute barred. The question arises whether the causes of action are founded on tort (s.5(1)(a)) or are actions for damages for negligence, nuisance or breach of duty (s.5(1A)).
The fiduciary obligation is alleged to arise from the relationship of doctor and patient and hospital and patient and the good faith obligation from a duty owed by members of the police force towards the plaintiff and by doctors towards the plaintiff.
In my opinion, the pleading does not invoke a kind of equitable cause of action for which the remedy is damages for personal injuries. The pleading is misconceived in my opinion because the duty owed by a police doctor or a member of the police force to the plaintiff is one to exercise reasonable care for his safety and not to do him a civil wrong such as, falsely imprison him or to cause him injury and damage by trespass or negligence or nuisance. The facts pleaded allege actions founded on tort or for damages for negligence, nuisance or breach of duty, within the parameters of s.5(1) and (1A) of the Act.
This issue was considered by the Full Federal Court in Paramasivam v. Flynn (1999) 160 ALR 203 in the context of a claim for damages for assault and breach of fiduciary duty allegedly owed by a guardian to an infant. The court recognised that fiduciary duties may arise within a relationship governed by contract or that liability in equity may co-exist with liability in tort. The court was not persuaded that the appellant's claim based on breaches of fiduciary duty owed by the respondent to the appellant had real prospects of success.
I am not persuaded that the plaintiff's claims based upon breaches of fiduciary obligations or duty of good faith alone have any real prospect of success. They should be treated as founded on tort or falling within s.5(1A) of the Act. There was no relevant relationship governed by contract. If liability is established it will be within the parameters of s.5(1) and 5(1A) of the Act.
In my opinion, every cause of action pleaded in the statement of claim is affected by a limitation period of six years pursuant to the Act. If the plaintiff was under a "disability" on the date when any right of action accrued the plaintiff may bring the action at any time before the expiration of six years from the date when he ceased to be under a disability notwithstanding that the period of limitation has expired: s.23 of the Act.
Although the plaintiff's summons does not refer to s.23, Mr Perkins argued that the plaintiff relied upon s.23 to extend the limitation period. However, Mr Perkins was reluctant to identify the nature of the disability and the period or periods when the plaintiff was under a disability or ceased to be under a disability. Unless the court knows the date or dates when the plaintiff ceased to be under a disability, it is not possible to determine whether the limitation period has been exceeded in respect to a particular cause of action.
Section 3(2) of the Act states that: "For the purposes of this act a person shall be deemed to be under a disability while he is a minor or of unsound mind". The plaintiff was born on 28 August 1947 and not a minor at any relevant time. The plaintiff does not assert in the statement of claim that he was unsound of mind at any relevant time although he refers to a drug, Duromine, administered to him which can cause "psychotic episodes".
As I followed Mr Perkins' argument, he said that the plaintiff denied that he was ever of unsound mind but doctors wrongly diagnosed that he was with the consequence that he was certified mentally ill from time to time and admitted to RPH, commencing on 22 September 1978 and at various times up to 16 January 1988.
There is English authority upon the meaning of the words "unsound mind" in the context of limitation of actions legislation. In Kirby v. Leather (1965) 2 QB 367 the Court of Appeal considered the meaning of "unsound mind". Lord Denning MR considered the words in the context of the subject-matter with which the statute was dealing. He said (at 383-384):
"So here it seems to me in this statute a person is of 'unsound mind' when he is, by reason of mental illness, incapable of managing his affairs in relation to the accident as a reasonable man would do. It is similar to the test where a guardian ad litem or a next friend is appointed under (the rules of court)."
In the present case the plaintiff's "affairs" concerned the claim or claims for damages arising from each incident described in the statement of claim. Was the plaintiff capable of concentrating on the claim or claims for any length of time? Did he appreciate the nature and extent of any claim that he might have? Was he capable of instructing a solicitor properly or, doing the legal work himself, for he is legally qualified? An analogy may be drawn between a fitness to plead issue in a criminal trial (see R. v. Presser (1958) VR 45) and "unsoundness of mind" in a civil proceeding for the purposes of a limitation period. The issue in each case turns upon the capacity of the person to manage his affairs.
A letter dated 31 August 1988 from the Acting Psychiatrist Superintendent of RPH to the Secretary, Law Institute of Victoria was tendered to specify the dates during which the plaintiff had been a patient at RPH. The letter also said:
"The diagnosis has varied from schizophrenia, paranoid schizophrenia, drug induced psychosis (probably Duromine) to mania".
The letter also said:
"The tragedy of this man's illness, I believe, is that he is so insightless into those times he is ill and is certified, rather he sees it as part of an elaborate persecution of himself."
It may be helpful to identify the occasions the plaintiff was a patient at RPH:
1.22/9/78 – 25/9/78 Voluntary
25/9/78 – 11/10/78 Recommended
2.16/6/82 – 22/6/82 Recommended
3.3/7/83 – 15/7/83 Recommended
4.19/8/83 – 23/9/83 Recommended
5.11/1/85 – 25/1/85 Recommended
6.15/5/85 – 20/5/85 Recommended
7.8/7/85 – 23/7/85 Recommended
8.16/8/85 – 16/8/85 Recommended
9.15/1/86 – 21/1/86
10.22/6/86 – 23/6/86 Recommended
11.29/7/86 – 1/8/86
12.15/3/87 – 18/3/87
13.19/6/87 – 29/6/87
14.16/1/88 – 17/1/88
The plaintiff's case is that police officers, police doctors and RPH Superintendents had no reasonable cause to arrest and incarcerate him in RPH on any occasion between 1978 and 1988.
Consequently, Mr Perkins did not adduce medical evidence to prove unsoundness of mind in the plaintiff at any time or to show when the plaintiff ceased to be under a disability of unsoundness of mind at a particular time. There is no evidence proving that the plaintiff was incapable of managing his affairs in relation to the claims specified in the Writ at particular times.
In support of the summons earlier referred to, the plaintiff made and filed an affidavit containing 231 paragraphs and 31 exhibits. It was sworn on 15 October 1998. The affidavit is rather unusual in content and very repetitive. When it is necessary to refer to a particular paragraph the reference will be: (AL para 1 etc).
In the affidavit the plaintiff refers to a "disability" stated in the particulars of his claim (62 pages of answers to the request of Defendant 1 and 59 pages of answers to the request of Defendant 2 and 50 pages of answers to the request of Defendant 33). These documents were not dealt with in detail by Mr Perkins and are incapable of proving that the plaintiff was of unsound mind or ceased to be of unsound mind at a particular time.
The affidavit asserts that Defendant 1 and Defendant 2 caused the plaintiff permanent medical harm and disability, both physically and mentally (AL 4). The plaintiff asserts that medical negligence by doctors, false arrests, incarcerations and other conduct created his "disabilities". The plaintiff asserts that "20 automatic arbitrary illegal arrests to 16/1/88" resulted in his being incarcerated as an involuntary psychiatric patient under the Mental Health Act. The plaintiff refers to 33 arrests by police officers commencing on 21/9/78 (AL 11).
The plaintiff deposed that he was admitted to practice law in Victoria on 1 May 1972 and signed the Roll of Counsel on 17 April 1978. Since 1978 he has spoken to 400 solicitors in an attempt to issue the Writ (AL 40). He said that he was denied legal aid on 1 March 1990 (AL 43). But he makes no attempt to deal with the critical question whether, by reason of unsoundness of mind, at any and what times, he was incapable of managing his affairs in relation to the claims in the Writ.
In 1988, 1989, 1990, 1993 and 1994 the plaintiff had legal proceedings on foot, other than this proceeding, in a variety of jurisdictions, in which he personally participated using his legal knowledge and skills (AL 191).
The plaintiff deposed that his counsel would lead evidence to establish "disability" pursuant to s.23 of the Limitation of Actions Act 1958 and, in particular, to show that he was abused, traumatised, injured and incarcerated at least 17 times (AL 140). The plaintiff referred to exhibits 1 to 24 to his affidavit. I searched a large box of exhibits but discovered only two exhibits bearing directly upon the mental state of the plaintiff at various times between November 1984 and November 1993. They are AAL 12 and AAL 13 which contain reports from Dr Rose and Dr Walton.
Dr N. Rose is a consultant psychiatrist whom the plaintiff consulted on 20 November 1984, 4 December 1984, 19 December 1984 and 27 March 1986. Dr Rose prepared and signed a certificate dated 15 April 1986 in which he stated that on the occasions he was consulted he found "no evidence of schizophrenia". He found "no evidence of thought disorder, disturbed affect, hallucinations, passivity feelings or delusions". The plaintiff was not on medication in March 1986 and Dr Rose concluded that either the plaintiff never suffered from schizophrenia or had recovered from schizophrenia.
Dr Rose conducted a mental state examination of the plaintiff on 26 October 1993 which took 50 minutes. The examination was conducted orally and was tape recorded. During the examination the plaintiff asserted that he was sane and had always been sane. He asserted, as he does in the statement of claim, that he had been the victim of wrongful arrests, negligent treatment by many doctors, assaults by police officers and wrongful incarceration in Royal Park Hospital.
On 28 October 1993 Dr Rose reported on the plaintiff. He opined that the plaintiff "continues to suffer from a paranoid disorder". He said: "At no time during the interview was there any evidence of formal thought disorder but there was evidence of a claimed organised conspiracy against Mr Lovejoy and his livelihood. The tenor of this was to suggest a diagnosis of either paranoid personality disorder or a delusional (paranoid) disorder".
Dr B. Holwill, a consultant psychiatrist made an examination of the plaintiff's mental status on 7 February 1985, 25 November 1985, 6 January 1986, 10 February 1986 and 17 March 1986. Dr Holwill stated that on the occasions he examined the plaintiff there was no evidence of schizophrenia.
Dr Lester Walton, a consultant psychiatrist examined the plaintiff on 28 November 1984, 7 May 1986, 27 April 1989 and 5 November 1993. On 14 May 1986 Dr Walton certified that: "He has displayed what may be described as eccentric modes of attire and idiosyncratic ideas but at no stage have I observed conclusive evidence of psychiatric disorder and, in particular, I have never been able to make a diagnosis of schizophrenia". On the last examination the oral examination was recorded. The plaintiff informed Dr Walton that he has suffered "a cruel mockery of the law … (and) have never suffered a mental illness".
In a report dated 8 November 1993 Dr Walton opined that the plaintiff's responses indicate paranoid thinking. "He continues to voice the notion that he is the victim of a conspiracy orchestrated by various public authorities and individual psychiatrists". He said: "I remain of the view that this man is properly described as suffering from a chronic paranoid schizophrenia". Dr Walton also commented that the plaintiff "remains an obviously highly intelligent individual and, to some extent that protects him against the ravages of his psychiatric illness".
The plaintiff in his affidavit provided the following explanation for not issuing the Writ earlier than he did. He said he was prevented by fraud of the police surgeons from issuing the Writ because, through fraudulent arrests and involuntary certifications his "disability" was being compounded and extended to stop the issue of the Writ (AL 252).
I have dealt at length with the material filed on behalf of the plaintiff because it is related to the "disability" issue relied upon by Mr Perkins. I find that none of the material I have seen proves that in the decade before the Writ was issued the plaintiff was of unsound mind in the sense described by Lord Denning in Kirby (supra). The plaintiff does not assert that he was of unsound mind at any relevant time or that he ceased to be of unsound mind at a particular date or dates and the medical reports I have referred to are silent upon the matter. That the plaintiff is eccentric or given to unusual behaviour does not prove unsoundness of mind.
In my opinion, the plaintiff is unable to extend the limitation period on account of being under a "disability".
I propose to consider now the plaintiff's application to extend time pursuant to s.23A of the Act. Section 23A, in its present form, was enacted in 1983 by Act No. 9884.
Relevantly, s23A provides:
"(2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to sub-section (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3) In exercising the powers conferred on it by sub‑section (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following -
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability of the plaintiff arising on or after the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."
Earlier, I said that the word "delay" in sub-paragraph s (a) and (b) of sub‑section (3) means the period from the accrual of the cause of action to the making of the application for an extension of time: see Koumorou v. The State of Victoria (1991) 2 VR 253 at 271; Repco Corporation Ltd v. Scardamaglia (1996) 1 VR 1 at 11.
Sub-paragraphs (a) to (f) are not exhaustive and the ultimate question to be resolved in the case of each cause of action pleaded against a particular defendant is whether in all the circumstances of the case it would be just and reasonable to grant an extension of time notwithstanding the expiration of the limitation period. Repco Corp Ltd at 11.
Smith J in Repco Corp Ltd also said: "The conduct of the plaintiff between the accrual of the cause of action and the limitation period expiry are matters to be considered in determining to what extent the plaintiff should be held responsible and thus blamed for the fact that the action is statute-barred". (Smith J at 11)
The defendants rely upon specific and general delay causing them prejudice. In some cases they rely upon inordinate delay, from which an inference of negligence may be drawn: Myer Melbourne Ltd v. Hammond (1988) VR 152 at 157.
The plaintiff bears the legal onus of showing that in all the circumstances of the case it would be just and reasonable to grant an extension of time: Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 at 544, ,547 and 551. McHugh J at 551 said: "But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour".
The Brisbane decision in the High Court was based upon s.31(2) of the Limitation of Actions Act 1974 (Q) which is different to the Victorian s.23A in important respects. Nevertheless, it is the words of McHugh J in relation to the history of enacted limitation periods which are important here.
"The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that 'where there is delay the whole quality of justice deteriorates'. (1982 AC 510 at 517). Sometimes the deterioration in quality is palpable, as in the case where a witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties."
His Honour added: "The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose". (p.551)
Perhaps trite, but important in cases vexed by long delay.
Mr Forrest submitted that the claims against each of the defendants represented by him are clearly statute barred and in the absence of an order extending time the claims should be dismissed.
Mr Forrest relied upon the observations of McHugh J in Brisbane for the proposition that inordinate delay without adequate explanation will, of itself and apart from any question of specific prejudice, result in the application to extend time being refused. This is because delay gives rise to a substantial risk that it will not be possible to have a fair trial of the issues in the action: cf Department of Transport v. Chris Smaller (Transport) Ltd (1989) AC 1197 at 1203; Sacco v. Renault (Wholesale) Pty Ltd Court of Appeal (Vic) 8 September 1995 at 2; Brisbane (supra). The Department of Transport and Renault cases were concerned with dismissal for want of prosecution. The proposition enunciated by McHugh J in Brisbane was applicable to a limitation of actions case where there was inordinate and inexcusable delay.
For the purposes of sub-paragraphs (a), (d) and (e) of sub-section (3) of s.23A of the Act the circumstances to be considered are singularly unhelpful to the plaintiff. The reasons proffered for delay on the part of the plaintiff are specious and unreasonable. As the evidence did not enable me to find that the plaintiff laboured under any relevant disability on or after the date of the accrual of the cause of action “the duration of any disability” cannot be considered. The plaintiff appears to have known that the conduct of the defendants was actionable for many years but he did not act promptly and reasonably. Mr Perkins relied heavily upon the plaintiff’s inability to instruct solicitors or to obtain legal aid as an adequate explanation. However, the plaintiff has a law degree, practised for a time at the Victorian Bar and is an intelligent person. He appears to have acted promptly and reasonably and usually without solicitors to institute other litigation from time to time when he believed he had a legal claim.
On the whole it may be said that this proceeding exposes inordinate and inexcusable delay in respect to many of the causes of action without adequate explanation.
The consequence is that the quality of justice is diminished. Reference has been made to the judgment of McHugh, J and Dawson J in Brisbane (supra) on the subject of delay and inferred prejudice to defendants from delay: see pp. 554 to 555 cf Myer Melbourne Ltd v Hammond (supra at 49) and an unreported judgment of Young CJ in Tavsauli v Phillip Morris (Australia) Ltd (18/9/89) where the Chief Justice said:
“No particular prejudice has been shown but the delay itself is in total sufficiently long to infer substantial prejudice."
The court was dealing with a delay of 10 years from the date of accrual of the cause of action to issue of the Writ.
The authorities do not define what is “inordinate” delay. The circumstances of the case will usually dictate what should be regarded as “inordinate” delay.
The delays in bringing claims against each of the defendants represented by Mr Forrest are inordinate, in my opinion.
Defendant 1 – Between 14 years and 20 years
Defendant 2 – Between 16 years and 18 years
Defendant 12 – Between 11 years and 12 years
Defendant 13 – About 14 years
Defendant 20 – About 13 years
The plaintiff has filed voluminous material but nowhere can I find a reasonable explanation for inordinate delay. I am not persuaded that unsoundness of mind may excuse the delays against Mr Forrest’s clients. That the plaintiff was refused legal aid and was rejected by 400 solicitors does not provide a reasonable excuse for delay for a person legally qualified and possessed with all the necessary legal skills. The plaintiff drafted the statement of claim endorsed on the writ, the documents filed in this proceeding and the affidavit in support of this application. In the absence of a solicitor, he has been able to manage his own legal affairs, albeit in an unusual way. No satisfactory explanation has been given of the reasons for inordinate delay.
Specific prejudice is relied upon in the cases of defendants 1 and 2. Defendant 1 claims to have only a limited recollection of the plaintiff which is generally based upon his perusal of his clinical records. Defendant 1 informed his solicitor that on three occasions (15/4/78, 4/12/80 and 27/7/84) when the plaintiff allegedly consulted him the plaintiff was seen by a locum who cannot be identified from his records. Defendant 2 claims to have lost or destroyed his clinical notes in 1993 before service of the writ. However, defendant 2 swore an affidavit of documents in February 1998 in which he said his clinical notes were lost or destroyed in 1996. Defendant 2 is overseas and the best evidence available indicates that the date 1996 is wrong and that he informed his solicitor the date was 1993. Although Mr Perkins urged me to find something sinister in the change of date I am not prepared to do so on the material. I find that both defendant 1 and defendant 2 have suffered specific prejudice by delay.
Delay of a general nature is relied upon by Mr Forrest flowing from the circumstance that his clients are all professional persons who value their reputations and delay is hurtful to them. I accept that general prejudice of this kind may be relied upon by Mr Forrest’s clients.
Mr Perkins' argument focused upon the plaintiff’s disability as an explanation for delay but he did not bring forward medical evidence to support the assertion, no doubt because he was instructed not to do so. After one has regard to all the circumstances of the case, including the specified matters in sub-paragraphs (a) to (f), sympathy for the plaintiff on account of the incidents related in the statement of claim is, perhaps, the strongest point in his favour. But sympathy is not a relevant circumstance when the court must decide whether it is just and reasonable to order that time to bring an action on the cause of action be extended.
Having found inordinate and inexcusable delay on the part of the plaintiff, specific and general prejudice to the defendants and no specific disability of the plaintiff which could account for or excuse delay, I am of the opinion that the plaintiff’s application against Mr Forrest’s clients cannot succeed.
I turn now to consider the application so far as it applies to Mr Golombek's clients, save for defendants 14, 15 and 16 who did not plead the statute and defendant 31 who did not plead the statute in respect of the second claim.
Mr Golombek’s submissions mirrored Mr Forrest’s submissions to a considerable degree. However, he relied upon specific prejudice caused to defendant 33 by the death of defendants 4 and 5. I agree with Mr Golombek that there is likely to be so much prejudice to defendant 33 which cannot be overcome as to make it unjust and unreasonable to extend time. In all the circumstances of the case an order extending the time within which an action on the causes of action may be brought against defendant 33 in respect of the actions of defendants 3, 4 and 5 should not be made.
Mr Golombek submitted first that the plaintiff did not furnish evidence that he was not aware of the wrongful acts and omissions in respect of which he alleges causes of action were available to him and when they occurred. Second, that the plaintiff furnished no evidence of unawareness of his legal rights in relation to alleged wrongdoing. Indeed, it may be said that the evidence showed the plaintiff was aware of his legal rights at all material times on account of his legal qualification and experience.
The principal argument relied upon was inordinate delay ranging from a minimum of 11 years to a maximum of 20 years coupled with no reasonable explanation to excuse delay. Mr Golombek also submitted that his clients did not cause delay, that delay was entirely in the hands of the plaintiff.
Mr Golombek also relied upon the judgment of McHugh J in Brisbane (supra) and asked the court to infer prejudice has been caused to the defendants by inordinate delay. I do so, because I believe that it would be impossible for many, if not all, of the defendants to retain a reliable memory of the event giving rise to the claim. Prejudice should be assumed, with the inevitable consequence that a fair trial of the issues is all but impossible now.
In my opinion, the considerations which required me to refuse the application to extend time in the case of Mr Forrest's clients are the same in the case of Mr Golombek’s clients. It is not just and reasonable to extend time. The plaintiff has failed to satisfy the onus of proof. The plaintiff’s summons fails.
Both Mr Forrest and Mr Golombek also argued, in the alternative, that the proceedings should be dismissed for want of prosecution. Defendants 14, 15, 16 and 31 did not benefit from the limitation period application but they are interested in the outcome of the want of prosecution application.
These applications are made to the court pursuant to Rule 24.01 of the Rules of court and/or the court’s inherent jurisdiction that a proceeding be dismissed for want of prosecution. The seminal judgment of Tagdell and Ormiston JJs in Bishopsgate Insurance Ltd (in liquidation) v Deloite Haskins and Sells (unreported 9/9/94) reviews the leading authorities (to September 1994). Since then the decision of the Court of Appeal in Spitfire Nominees Pty Ltd v Ducco (1998) 1 VR 242 has been published.
The guiding principle in cases raising “want of prosecution” was stated in Shepperdson v Lewis [1966] VR 418 by O’Bryan J:
“The guiding principle for exercise of such a discretion may be stated broadly in terms that an order for dismissal will be made if the justice of the occasion demands it; on the other hand, if the default can be met by a less drastic order including maybe an appropriate order for costs the action will not be dismissed. On such an application a number of considerations would appear to be relevant, eg, the length of the delay, whether a credible and excusable explanation has been given for the delay, what prejudice to the defendant, if any, has arisen or may arise as a result thereof, and this would include a consideration of the nature of the action and the issues which are likely to arise at the trial.”
One of the purposes of an order dismissing a proceeding for want of prosecution is to remove from the court list a stale proceeding, one that has not been reasonably prosecuted. The order is drastic and could only be made if there has been inordinate and inexcusable delay on the part of the plaintiff and the delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants. See Chris Smaller (Transport) case (supra) at 1203; Birkett v James (1978) AC 297.
To justify dismissal for want of prosecution the relevant delay must be that which the plaintiff allows to lapse unnecessarily and without excuse after the proceedings have commenced. Bishopsgate (supra) at 22. However, a plaintiff is obliged to move with greater speed if he has left the issue of proceedings until very late in the limitation period, cf Birkett v James (supra) at 323; Bishopsgate at 22. Tardiness has a cumulative effect often resulting in additional prejudice as time goes by.
It will be recalled that the writ was issued in January 1994, in some cases up to 20 years, in other cases around 10 years and in many cases between 11 years and 15 years after the cause of action accrued. In all the cases general prejudice may be inferred from inordinate delay. After the writ was issued the plaintiff’s solicitor served notice of ceasing to act in May 1995 and thereafter the plaintiff acted for himself. In mid September 1997 as part of the court’s “case management” programme the proceeding was brought before Teague J for directions, three years and eight months after the writ was issued. The plaintiff had not filed any document or taken any step in the proceeding, before Teague J made an order on 23 September 1997. Thereafter, the plaintiff has been active in providing voluminous further and better particulars of the statement of claim and in filing affidavits of documents. Then, in June and October 1998 the summonses now before the court were filed.
It was not suggested that delay in prosecuting the proceeding since January 1994 was intentional or contumelious. The defendants rely upon inordinate and inexcusable delay before and after the writ was issued and upon general or inferred prejudice so as to make it impossible to have a fair trial of the issues in the proceeding. The delay between expiry of the limitation period and September 1997 is substantial and calculated to render a fair trial of the issues impossible or very unlikely, in my opinion. The many incidents or events which are the subject matter of the writ are stale and the court has been given no reasonable explanation why the writ was not progressed with greater expedition once it was issued.
The defendants have to persuade the court that it is just and fair in all the circumstances to dismiss the plaintiff’s claim without it being heard. The drastic remedy of dismissal for want of prosecution is appropriate, in my opinion, because delay has been inordinate and inexcusable, moreso before the writ was issued and there is inferred prejudice to the defendants which cannot be overcome. No order for costs against the plaintiff will diminish in any way the prejudice caused by inordinate delay.
It is most unfortunate for the plaintiff but I consider that the justice of the case requires the court to make the order sought by the defendants.
Orders will be made as follows:
1.On the plaintiff’s summons dated 20 October 1998 the summons is dismissed with costs.
2.On the summonses issued by Mr Forrest’s clients on 12 and 15 June 1998 the proceeding insofar as it affects defendants 1, 2, 12, 13 and 20 is dismissed for want of prosecution. Costs to be paid by the plaintiff.
3.On the summonses issued by the defendants represented by Mr Golombek the proceeding insofar as it affects defendants 6, 7, 8, 10, 15 to 19 and 22 to 33 is dismissed for want of prosecution. Costs to be paid by the plaintiff.
I consider it is unnecessary to determine the alternative remedy sought by all the defendants, namely to strike out the statement of claim pursuant to Rule 23 of the Rules of Court. A great deal of criticism can be levelled at the statement of claim but this matter can await another day.
Schedule
| Defendant | Description | Statement of Claim | Accrual | Delay |
| 1 | Doctor | Paras 12 – 18 | 15/4/78 - 27/7/84 | 20 to 14 years |
| 2 | Doctor | Paras 26 – 37 | 26/11/79 – 12/12/79 | 18 years |
| 3 (deceased) | Police Doctor | Paras 43 – 49 And 128 – 139 | 16/6/82 8/7/85 | 16 – 13 years 13 years |
| 4 (unidentified) | Police | Paras 50 –58 | 16/6/82 | 16 years |
| 5 (unidentified) | Police | Paras 50 – 58 | 16/6/82 | 16 years |
| 6 | Police Doctor | Paras 80 – 88 Paras 140 – 142 | 3/7/83 15/1/86 | 15 years 12 years |
| 7 | Police Doctor | Paras 23 – 37 Paras 89 – 91 | August 1983 to 26/6/84 | 14 – 15 years |
| 8 | Doctor | Paras 98 – 106 | 10/1/85 | 13 years |
| 9 (Not served) | Doctor | Paras 143 – 145 | 15/1/86 | ---- |
| 10 | Police Doctor | Paras 152 – 156 | 19/6/87 | 11.5 years |
| 11 (Not served) | Doctor | Paras 157 – 163 | 1984 – 1985 | ---- |
| 12 | Doctor | Paras 164 – 170 | Feb ’86 – 1987 | 11 – 12 years |
| 13 | Doctor | Paras 171 – 177 | May 1984 | 14 years (approx) |
| 14 | Police | Paras 191 – 200 | 16/1/88 | 11 years (approx) |
| 15 | Police | Paras 191 – 200 | 16/1/88 | 11 years (approx) |
| 16 | Police Doctor | Paras 201 – 204 | 16/1/88 | 11 years (approx) |
| 17 | Police | Paras 107 –117 | 15/5/85 | 13.5 years |
| 18 | Police | Paras 107 – 117 | 15/5/85 | 13.5 years |
| 19 | Police | Paras 107 – 117 | 15/5/85 | 13.5 years |
| 20 | Doctor | Paras 120 –125 | 15/5/85 | 13.5 years |
| 21 (Removed) | ---- | |||
| 22 | Police | Paras 126 – 139 | 8/7/85 | 13 years |
| 23 | Chief Commissioner | Paras 205 – 211 | 13/6/77 – 28/11/87 | 11 years 4 mths |
| 24 | Chief Commissioner | Paras 205 – 211 | 29/11/87 – 16/1/88 | 11 years (approx) |
| 25 | Supt RPH | Paras 19 – 25 and 59 – 63 | 1978 | 20 – 10 years |
| 26 | Supt RPH | Paras 19 – 25 and 59 – 63 | 1982 | 20 years to 10 years |
| 27 | Supt RPH | Paras 19–25 and 59‑63 | 1985 – 1987 | 20 years to 10 years |
| 28 | Supt RPH | Paras 19–25 and 59– 63 | Jan 1988 | 20 years to 10 years |
| 29 | Police | Paras 92 – 97 | 10/1/85 | 14 years (approx) |
| 30 | Police | Paras 146 – 151 | 19/6/87 | 11.5 years (approx) |
| 31 | Police | Paras 178 – 184 | 3/12/87 | 11 years (approx) |
| 32 | Police | Paras 178 – 184 | 15/1/88 | 11 years (approx) |
| 33 | State of Victoria | 1978 – 16/1/88 | 20 years to 11 years |
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