Mclaughlin v Burrows

[2021] NSWCA 170

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mclaughlin v Burrows [2021] NSWCA 170

Hearing dates:

23 July 2021

Date of orders:

11 August 2021

Decision date:

11 August 2021

Before:

Bell P; Meagher JA

Decision:

1. Dismiss the summons seeking leave to appeal in proceeding 2021/78037.

2. Dismiss the notice of appeal in proceeding 2020/364240.

3. Applicant pay the respondents’ costs of those proceedings.

Catchwords:

APPEAL – leave to appeal – where applicant’s claims summarily dismissed on ground that statute-barred – whether primary judge erred in being satisfied that there was no arguable case that applicant was under a “disability” within meaning of Limitation Act 1969 (NSW) s 52(1)

Legislation Cited:

Limitation Act 1969 (NSW), ss 11(3)(b), 14(1)(b), 52(1)

Supreme Court Act 1970 (NSW), s 101(2)(e)

Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Workers Compensation Act 1987 (NSW), ss 38, 40, 52A

Workplace Injury Management and Workers Compensation Act 1988 (NSW), s 315

Cases Cited:

Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369

Murgolo v AAI Ltd t/as AAMI [2019] NSWCA 295

Category:

Principal judgment

Parties:

Scot George Mclaughlin (Applicant)
David Wilfrid Burrows, Roger John Downs, David Laurance Potts, Paul Dante Magagnino, Peter John Chodat, Mario Quintilliani, Michael John Hatfield and Michael Paul Mantel t/as Kells the Lawyers (Respondents)

Representation:

Counsel:
R Perla (Respondents)

Solicitors:
S Mclaughlin (Applicant) (In person)
Gilchrist Connell (Respondents)

File Number(s):

2021/78037, 2020/364240

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 1802

Date of Decision:

18 December 2020

Before:

Bellew J

File Number(s):

2020/79589

Judgment

1. THE COURT: The applicant, Mr Mclaughlin, seeks leave to appeal against the primary judge’s order of 18 December 2020 summarily dismissing his claims of negligence against the respondent solicitors: Mclaughlin v Burrows & ors t/as Kells The Lawyers [2020] NSWSC 1802 (the Judgment). Each of those claims was brought more than six years after the commencement of the relevant limitation period. The primary judge held that none of those periods was “suspended” under Limitation Act 1969 (NSW), s 52(1) by reason that the applicant was incapable of or substantially impeded in the management of his affairs and thus “under a disability” for the purposes of that provision: at [31]-[32].

2. Leave to appeal is required because that order, made under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4(1), was interlocutory: Supreme Court Act 1970 (NSW), s 101(2)(e). The application for leave does not involve any issue of principle or of general public importance. Rather, the question is whether there is any doubt as to the correctness of his Honour’s conclusion that the medical and other evidence did not establish, even on an arguable basis, that the applicant was suffering any disability which made him incapable of managing his affairs during the period from 2004 to 2015.

3. The application for leave to appeal is made by a summons filed on 19 March 2021. Earlier on 2 February 2021 the applicant filed a notice of appeal. That appeal is incompetent in the absence of an order granting leave to appeal.

Factual background

4. The applicant is self-represented and has drafted his pleadings and written submissions without legal assistance. An understanding of his claims is assisted by a brief summary of their surrounding circumstances. What follows is based on documents contained in the “court book” that became Exhibit A before the primary judge. While by no means complete, those documents provide a limited but sufficient history of the applicant’s injuries, medical conditions and treatment and court proceedings.

5. In 1999, Mr Mclaughlin was employed by High Sierra Aluminium Windows Pty Ltd (High Sierra) including as a window fabricator and fitter. On 16 March 1999 he sustained injuries to his neck and shoulder when he fell from an extension ladder which slipped from under him. The occupier of that building site was Dickinson Developments Pty Ltd. Three months later on 18 June 1999, the applicant sustained injuries to his back whilst lifting large panes of glass at a different building site. He subsequently received compensation payments in respect of those injuries under Workers Compensation Act 1987 (NSW), ss 38 and 40, on the basis that he was partially incapacitated. In about October 1999 the applicant retained Taylor & Scott to act on his behalf; his employer’s workers compensation insurer, Employers Mutual NSW Limited (EML), referred him to CRS Australia, from whom he received work placement and rehabilitation assistance between April 1999 and January 2002.

6. In February 2000, Dr Stenning performed a cervical discectomy and fusion at C5/6 on the applicant. Subsequent radiographic studies showed that fusion had not worked and that it would have to be redone, as occurred in November 2004. In around April 2001 the applicant was treated by Dr Paul Steward, a specialist in chronic pain management, who performed a nerve block procedure about which complaint is now made.

7. In August 2001, EML advised the applicant that he was partially incapacitated and capable of being otherwise employed, and that his compensation would be reduced to $284 per week from 20 August 2001. In about November 2002 the applicant terminated his arrangement with Taylor & Scott and retained Lyon Jarrett. Proceedings were commenced in the Compensation Court of New South Wales, resulting in a determination by Commissioner Hogg on 5 September 2003 that the applicant was partially incapacitated and only entitled to compensation for a period of two years (s 52A).

8. On 29 September 2003 the applicant saw Ms Dalyell of the respondent firm for advice in relation to an appeal from that determination. He was advised that there were no reasonable prospects of success of such an appeal. The applicant then saw Mr Potts of the respondent firm on 4 March 2004 in relation to the same subject, and the prospect of making a further claim for compensation in the event that he became totally incapacitated. At that time the applicant was advised that “criticisms could be made of the advice” provided by his earlier lawyers.

9. Subsequently, proceedings were commenced in the District Court against Taylor & Scott on the basis that the firm was negligent in failing to pursue common law claims against the applicant’s employer in respect of both of the 1999 injuries, and also against Dickinson Developments as occupier in respect of the first injury. Those proceedings were settled in February 2008 in circumstances where Taylor & Scott had admitted a breach of duty and negligence in failing to pursue a common law claim as a result of the first injury. No similar admission was made in relation to the second. The settlement was for $175,000 plus costs, which resulted in a net payment to the applicant of about $135,000.

10. In the context of that settlement, counsel also advised the making of a “claim against your former employer for common law damages”. It was also pointed out that any settlement of that claim would involve giving up the applicant’s workers compensation rights.

11. Such a claim was then made, initially by the filing of a “pre-filing statement” under Workplace Injury Management and Workers Compensation Act 1988 (NSW), s 315. A mediation followed on 18 September 2009. Whilst EML denied liability on behalf of High Sierra, it produced a medical report assessing the applicant’s degree of permanent impairment at 28%, of which 25% was attributed to the first injury and 3% to the second. The common law claim against High Sierra was settled on about 27 October 2009, producing a net payment to the applicant of “a little under” $145,000.

Procedural history

12. The applicant’s statement of claim was filed on 10 February 2020, amended on 19 February 2020, and further amended on 21 April 2020. As summarised by the primary judge, ‘Amended 2 Statement of Claim’ made eight claims of negligence against the respondents under seven headings: Judgment, [8]-[19].

13. On 13 May 2020 the respondents filed a notice of motion seeking, inter alia, that the proceedings be dismissed pursuant to UCPR r 13.4. The applicant then filed a notice of motion seeking judgment for a “liquidated” claim, namely $18 million plus interest and costs. Those applications were listed for hearing before Campbell J on 15 July 2020. At the commencement of that hearing Campbell J identified, based on material filed by both parties, the principal issue between them on the summary judgment application to be whether the applicant was under a “disability” (s 52(1)), principally by reason of the myoclonic jerks or seizures of epileptic or spinal origin from which he suffered.

14. The limitation period for the applicant’s causes of action founded on the tort of negligence is six years running from the date on which the cause of action first accrues: Limitation Act, s 14(1)(b).

15. Section 52(1) provides that where a limitation period has commenced to run and the person having the cause of action is “under a disability”, the running of that limitation period is “suspended” for the duration of the disability. A person is “under a disability” if the person is for a period of 28 days or more “incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises”, by reason of “any disease or any impairment of his or her physical or mental condition” (s 11(3)(b)).

16. The evidentiary material before Campbell J included reports of the applicant’s treating neurologist, Dr Robert McGrath. Those reports confirmed that the applicant suffers from myoclonic seizures which result in quick jerking movements, usually whilst he is asleep. They also suggested that Dr McGrath was uncertain as to whether those seizures were associated with an epileptic condition or the result of spinal injuries or problems. In an early exchange with the applicant, Campbell J observed that “none of the evidence of any of the doctors” showed that the applicant, because of his depression, hypertension or seizures, was incapable of looking after his own affairs.

17. To enable the applicant to obtain further expert or other evidence directed to that subject, Campbell J adjourned the hearing of the motions, made a direction that the applicant file such evidence and ordered that the question “whether the proceedings are statute-barred or otherwise liable to be stayed … be decided in advance of all other questions in the cause”: Mclaughlin v Burrows [2020] NSWSC 917 at [14].

The reasoning of the primary judge

18. Notwithstanding the terms of the order made by Campbell J, the primary judge proceeded to hear the respondents’ application for summary judgment and applicant’s application for default judgment. The evidence was in the form of the “court book” earlier referred to, which contained not only affidavits filed by the parties but also documents produced and relied on by the applicant. They included correspondence and medical reports relating to the 1999 workplace injuries. The court book also included what were described in the applicant’s affidavit of 12 August 2020 as:

… expert reports in regard to the plaintiff’s mental health over the last 20 years, and documents from the Commonwealth health records, as requested by his Honour, Iflow Psychology, [and] Dr Robert McGrath.

The reference to “Iflow Psychology” was to the report of Mr Dean Harrison, a counselling psychologist, dated 26 August 2020. There were also reports of Dr McGrath dated between 12 April 2018 and 15 July 2020. Finally, the court book included written submissions of the respondents and some of the correspondence between them and the applicant relating to the proceedings brought whilst acting for him.

19. In dealing with the motion for summary judgment, the primary judge recorded what is well established, namely that “the power conferred by r 13.4 can only be exercised in circumstances where the Court is clearly satisfied that the [relevant] claim is bound to fail”: Judgment at [37]. His Honour also noted that the power summarily to dismiss proceedings on the basis that they are statute-barred “must only be exercised where the position in relation to the limitation question is clear”: Judgment at [37]. That is in part because the question as to when a limitation period commenced to run often turns on factual issues, not readily addressed separately and before the trial of the underlying liability issues: Murgolo v AAI Ltd t/as AAMI [2019] NSWCA 295 at [62] (Basten JA).

20. As we have already said, the primary judge summarised the applicant’s pleaded causes of action under seven headings: Judgment at [8]-[19]. For convenience we will adopt the same descriptions for the purpose of identifying the nature of the pleaded claims and relevant limitation periods.

21. The 2003 workers compensation advice claim: The advice given to the applicant in October 2003 and March 2004, culminating in a letter of 8 March 2004, is described as “poor and ill advice in regards to section 52A”. As the decision of Commissioner Hogg was delivered on 5 September 2003, the time for bringing an appeal had expired by March 2004, requiring that proceedings for the negligent advice be commenced no later than 8 March 2010.

22. The 1999 back injury claim: The applicant’s allegation is that his common law claim against his employer in relation to the second injury was settled in October 2009 without his consent. His pleading contends that the earlier settlement involving Taylor & Scott only related to their failure to bring a common law claim in respect of the first injury, and that he gave instructions in relation to the settlement of the later claim involving EML on the understanding that it also was only in respect of the first injury. In fact, that claim was made against his employer and its insurer in respect of both work injuries. Presumably (although the evidence before this Court does not confirm it to be the case), the subject of the settlement involving Taylor & Scott was any negligence in failing to bring a common law claim against the as occupier in respect of the first work injury.

23. As the alleged settlement without authority of the common law claim for the second work injury occurred on about 27 October 2009, the time for bringing any claim against the respondents arising out of those circumstances expired on 27 October 2015.

24. The Employers Mutual Limited claim: The quantum of the settlement with High Sierra and EML is also the subject of this complaint. That settlement was of the workers compensation and common law claims arising in respect of both injuries. The alleged negligence is that in making this claim, the amount of the wages, superannuation and other benefits to which the applicant was entitled is said to have been understated. As with the claim for settling the second work injury claim without instructions, any claim arising out of the circumstances recited in this paragraph also expired on 27 October 2015.

25. The unethical behaviour claim: The allegation is that written and oral statements made by the respondents, particularly Mr Potts, about the applicant left him “anxious and nervous” and caused him “psychological distress”. The pleaded communications occurred between May 2007 and November 2009. Accordingly, the time for making a personal injury claim (assuming, which may be doubted, that there was a basis for any such claim) against the respondents expired by 30 November 2012, and for any other claim expired by 30 November 2015 at the latest.

26. The CRS Australia claim: It is alleged that the respondents were negligent in failing to pursue a claim against CRS Australia for “unnecessary pain and suffering” resulting from its advice that he attend a TAFE course two weeks after his first neck operation in January 2000. The primary judge found that any proceeding against CRS Australia for personal injuries was required to be commenced by 4 March 2007, which was three years after the applicant says he provided Mr Potts with all of the documentation relating to such a claim. On that basis, any proceedings against the respondents for failure to pursue that claim should have been commenced by 4 March 2013.

27. The Stenning claim and the Steward claim: It is alleged that the respondents were negligent in failing to advise as to the commencement of proceedings against Dr Stenning in relation to the spinal fusion he performed in January 2000. The applicant says that as a result of Dr Stenning’s conduct he suffered an “unstable neck and excruciating pain unnecessarily” until a further medical procedure was undertaken by Dr Day in around November 2004. Depending on whether the claim against Dr Stenning is for personal injuries, the period for bringing a claim likely expired in August 2004 (when the applicant became aware of the fact that the first operation had not been successful) or August 2007. Accordingly, any limitation period for bringing a negligence claim against the respondents had expired by August 2013.

28. In relation to Dr Steward, it is alleged that he performed a nerve block procedure in about April 2001 which caused the applicant pain and suffering. As the primary judge concluded, any proceedings against Dr Steward for personal injury were required to be commenced by April 2004, meaning any claim against the respondents for negligence in failing to advise as to the bringing of such proceedings was required to be commenced by April 2010.

29. The foregoing analysis, which varies slightly from that of the primary judge, shows that the earliest in time limitation period commenced in March 2004 and that the last relevant limitation period expired, at the latest, at the end of November 2015. The present proceedings were commenced in February 2020, over four years after the last of those limitation periods expired. Accordingly, this is not a case in which there were any nice factual issues as to whether any relevant limitation period had otherwise expired. Rather the question for the primary judge was whether he was clearly satisfied that the applicant was not “under a disability” during any part of that eleven-year period.

30. In addressing what was necessary to establish that the applicant was “under a disability”, the primary judge proceeded on the basis that the meaning of section 11(3)(b)(i) of the Limitation Act was as explained by this Court in Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369. The following passages from the judgment of Campbell JA (Basten JA and Handley AJA agreeing) were extracted by the primary judge (at [41]-[42]):

[152] … [W]hether the plaintiff has been “substantially” impeded is decided bearing in mind the context and purpose for which the court is called on to make the decision. It is for the purpose of deciding whether an as-of-right suspension of a limitation period will arise. It needs to be an impediment that has interfered with the ability of the plaintiff to commence the action within time to an extent sufficient to warrant the suspension of the limitation period.

…

[140] In the context in which it occurs in section 11(3)(b), the relevant “affairs” are ones in relation to a particular cause of action. In a general sense, managing one’s affairs in relation to a particular cause of action includes doing the various things that would need to be done if that cause of action were to be dealt with. Thus, it includes seeking advice about whether a civil remedy exists for some perceived wrong, seeking advice about the difficulties, risks, cost and effort involved in pursuing any such remedy and the likely returns, comprehending and evaluating that advice, and, if the decision to commence proceedings is taken, thereafter engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action.

31. The primary judge had earlier summarised the evidence relevant to that question at Judgment at [22]-[30].

32. It included the report of Dr McGrath of 15 July 2020, which concluded that “Mr Mclaughlin has provided me with great detail regarding the whole 21-year history of his struggles and I have endeavoured to summarise that paperwork as much as I can”. That summary included the following:

Mr Mclaughlin suffered a work related accident, falling off a ladder in 1999. Later in the same year he developed painless left arm weakness. He had imaging of the neck showing a C5-6 level disc protrusion and eventually ended up having neck surgery under Dr Stenning.

Two weeks after this whilst on pain medication he had an episode of loss of consciousness. He then underwent a further cervical spinal surgery under Dr Bentivoglio. He suffered with the mood disorder on the background of chronic pain, sleep deprivation and multiple analgesics. In 2003 he developed left arm weakness again and had further surgery. In 2006 he underwent a relationship breakdown and developed severe anxiety and depression.

In 2008 he began to develop episodes of severe body jerking (myoclonic jerks). These were violent causing his jaw to slam shut to the point that he cut his mouth. These would happen very frequently for long periods of time, predominantly at night. He was initially diagnosed as having panic attacks but clearly these are myoclonic jerks. The diagnosis made by a neurologist in Victoria, Dr John King, was that of nocturnal myoclonus. Eventually he was seen by two neurologists Dr Taneja and Dr Kalband for this and he continued to have trouble.

Whilst I am suspicious of the fact that he might have had a low level spinal cord injury responsible for the myoclonus there had been no confirmation of spinal cord scarring and no underlying inflammatory disease process. An EEG has been found to be abnormal over time. I treated Scott with Lamotrigine which worked out well. Lamotrigine worked as a mood stabiliser and also an antiepileptic medication, recalling his history of loss of consciousness.

At his last visit to me, I noted ongoing depression and anxiety affecting his cognition.

His last myoclonic seizure was 2017.

I had concerns about his mental health and the possibility of PTSD and suggested that he address that further with his general practitioner.

33. The earlier reports of Dr McGrath are summarised by the primary judge at Judgment at [26]-[29]. In his report dated 12 April 2018, the doctor recorded the following history: that in 2006 the applicant had a breakdown in his relationship and had “some elements of PTSD”; that in 2008 he began to notice a “machine-like sound in his head and then the sensation of a door slamming, followed sometimes by huge myoclonic jerks” which caused his jaw to slam shut and caused him to bleed from the mouth; that the applicant commenced using marijuana or cannabis which reduced the jerk frequency to “perhaps 15 in the whole year”; and that between December 2017 and April 2018 the applicant had three myoclonic events which were “mild involving his jaw”.

34. In his report dated 25 February 2020, Dr McGrath noted that the applicant’s “last significant myoclonic seizure was in 2017”.

35. The report of Mr Dean Harrison, obtained following the hearing before Campbell J, diagnosed the applicant as suffering from PTSD and noted a history of depression. Mr Harrison did not undertake an assessment of his cognitive functioning. He concluded that on the evidence available to him the applicant had complied with and engaged in all treatment recommendations and that he had “persevered” despite his functional limitations and chronic pain, a circumstance which Mr Harrison regarded as a “testament to [the applicant’s] resiliency”.

36. The applicant also relied on a series of ambulance reports documenting attendances by ambulance officers on him between June and December 2011. Those reports referred to him as suffering from anxiety, transient ischemic attacks and stress. Neither those reports nor the other evidence suggest that the applicant was admitted to hospital as a consequence of any of those attendances.

37. The primary judge also considered the correspondence between the applicant and the respondents in the period between September 2003 and November 2009. He described that correspondence as establishing that during [the period October 2003 to October 2009] the applicant “was engaging with his lawyers, attending conferences, and providing instructions in relation to his various matters”: Judgment at [30]. We agree. It is sufficient to record what that correspondence shows as to the settlement of the District Court proceeding against Taylor & Scott for negligence in failing to bring common law claims against High Sierra and Dickinson Developments.

38. On 25 August 2006 the applicant attended a conference with counsel and Mr Potts. The negligence claim was first listed for hearing in the District Court in September 2007. Following a mediation and after subsequent negotiations and offers between the parties, the claim against Taylor & Scott was settled for $175,000 plus costs, which resulted in a net payment to the applicant of $135,000. The fact of that settlement and a summary of the negotiations leading to it were recorded in two letters from the respondents to the applicant each dated 4 February 2008.

39. In early March 2008 Mr Potts advised orally and in writing that a common law claim should be made directly against the applicant’s employer. After notice was given to High Sierra and its insurer EML, there was an informal mediation in September 2009. The applicant attended that mediation with counsel. Later, it was indicated that the matter might settle for $200,000 net of Centrelink repayments, costs and disbursements. At a further meeting with Mr Potts on 23 October 2009 the applicant instructed him to accept an offer likely to produce a net payment to the applicant of $135,000.

40. None of this correspondence suggests that the applicant was having any difficulty in understanding what was occurring or making decisions in his own interests on the basis of advice given. Nor did the applicant suggest in argument in this Court that he did not understand the effect of those communications or that they did not accurately summarise or record the events to which they referred.

41. Having considered this evidence, the primary judge gave his reasons for concluding that the applicant was not relevantly under a disability. It followed that all of the claims other than that for the 1999 back injury should be dismissed as statute-barred. In relation to that claim, the primary judge understood it to be concerned with the settlement of a workers compensation matter in which the applicant was represented by Taylor & Scott. For that reason, he concluded that it was unfounded: Judgment at [11], [44]. We consider this claim to allege the unauthorised final settlement in October 2009 of the workers compensation and common law claims for the second injury. So understood, this claim is also statute-barred for the reasons given by his Honour in relation to the Employers Mutual Limited claim.

42. It is convenient at this point to set out his Honour’s analysis with which we agree:

46 … The plaintiff’s bare assertion that he has been “disabled” since 2000 is deserving of little weight in the absence of evidence to support it. Even if it is accepted that the plaintiff has been in receipt of a disability pension for all, or even some, of the relevant time, it does not follow from that fact that he has been disabled in the relevant sense.

47 The medical evidence to which I have referred, and upon which the plaintiff relies, falls substantially short of establishing a disability of the kind contemplated by the [Limitation Act]. Neither the ambulance reports, nor the reports of Dr McGrath and Mr Harrison, establish that the applicant was either incapable of, or substantially impeded in, the management of his affairs in relation to the causes of action in respect of which he seeks to bring proceedings.

48 To the extent that the plaintiff asserts that he was under a disability by reason of an epileptic condition, it was Dr McGrath’s opinion that there was little likelihood that the plaintiff’s complaints were in the nature of epileptic seizures. Dr McGrath’s reference to the plaintiff suffering Post-Traumatic Stress Disorder in 2006 was not an expression of opinion, but a recounting of the history which the plaintiff had provided. The same is the case with Dr McGrath’s reference to the plaintiff’s depression. Even if such references were construed as diagnoses (a construction which is not reasonably open) there is no evidence that the plaintiff was, as a result, disabled in the manner contemplated by s 11(3)(b)(i).

49 For similar reasons, the opinions expressed by Mr Harrison (which followed a single examination conducted in 2020) provide no support for a conclusion that the plaintiff was disabled at the relevant time. Although Mr Harrison diagnosed the plaintiff as suffering from Post-Traumatic Stress Disorder, such diagnosis was reached in 2020. Mr Harrison’s report provides no support for a conclusion that the plaintiff was disabled at the material time. Indeed, the observations of Mr Harrison that the plaintiff “persevered” tend against a conclusion that the plaintiff was incapable of managing his affairs.

50 Finally, the correspondence which passed between the plaintiff and the defendants and which is in evidence tends completely against the proposition that the plaintiff was incapable of managing his affairs during the period over which that correspondence was generated. … Whilst I accept that such period predates that in which the plaintiff was required to commence proceedings against the defendants, the correspondence remains relevant. It tends completely against the plaintiff’s uncorroborated assertion that he has been mentally ill for the past 20 years.

The proposed grounds of appeal

43. The ten paragraphs under the heading “Appeal Grounds” in the applicant’s notice of appeal contain reasons as to why the applicant considers that the primary judge was wrong. In essence, two matters are relied on.

44. First, it is stated that the applicant did not receive a fair hearing. In particular, it is said that the primary judge “kept interrupting” and “yelled” at him; that he was only given five minutes to make submissions; that he was not allowed to rely on documents in the joint court book; and that the transcript of the hearing has been edited.

45. Secondly, it is said that the primary judge erred in not being satisfied that he was incapable of managing his own affairs (or at least that it was arguable that he was so incapable). In particular, it is said that the primary judge did not understand the effects of epilepsy, seizures or the consequences for him of his constant pain as a result of the neck and back injuries; and that his current condition, including being able to represent himself in the proceedings was not “reflective of the past” because it is only since December 2019 that he has been able to “get some of [his] faculties back and be able most days now to manage [his] emotions and not [have] seizures every day”.

Reliance on further evidentiary material

46. Before this Court, the applicant sought to rely on four further documents, each of which is dated after he appeared before the primary judge. The first was a discharge referral from the emergency department of Royal Prince Alfred Hospital which recorded that on 20 November 2020 he had presented “with increasing headaches and unusual jerking movement”. The referral notes that following “discussion with Neurology, there was no concerning pathology at this stage and [that the applicant] was advised to follow up with Dr McGrath”. The second was a referral letter dated 5 January 2021 from the applicant’s treating doctor Muhammad Arif to Dr Matthias Jaeger, which contains a very brief summary of the applicant’s injuries and treatment. The third was a letter dated 17 December 2020 from Dr N Ahamed to Dr Arif reporting findings of MRI scans of the applicant’s lumbar spine and cervical spine taken in December 2020.

47. The fourth was a further report of Dr McGrath dated 23 February 2021. Whilst that report records that earlier in February 2021 the applicant had a further “terrible episode of nocturnal myoclonus” which caused “a significant amount of pain which of course woke him up”, it does not provide any support for the conclusion that, either now or at some earlier point in time, that condition has interfered with the applicant’s ongoing cognitive functioning to such an extent that he was not capable of undertaking the sorts of activities described in his correspondence with the respondents between 2003 and 2009.

Disposition of the leave application

48. There is no substance to the applicant’s suggestion that he was not given a fair opportunity to put his case before the primary judge.

49. In the hearing before Campbell J, the question whether the applicant was under a disability was identified as the principal issue on the summary judgment application. Having identified that issue, Campbell J gave the applicant the opportunity to produce further evidence in support of his argument on that issue. The evidence he produced and his affidavit of 12 August 2020 were included in the court book tendered before the primary judge. In his written submissions dated 28 October 2020, which were also included in the court book, the applicant contended:

Due to the undiagnosed Epilepsy from January 2000 to the start of medication to try and stop the seizures Dr John King report 17/5/2016 to current medication with Dr Robert McGrath report 25/2/2020 I believe that under the mental health act, I was not a fit and healthy person in a position to make decisions for myself, there is plenty of red flags my solicitor David Potts did not do due diligence to see if I was mentally able to understand his advice, I believe that every document I signed is illegal as I have stated the mental health act requires a person to make decisions for another person with the power of attorney to make decisions in the best interest of that person. I absolutely believe this should have been the case given my poor physical and mental health.

50. The transcript of the proceeding before the primary judge does not support the applicant’s suggestion that he was unnecessarily interrupted or prevented from putting his arguments. After the court book and other evidentiary matters were dealt with, the primary judge invited counsel for the respondents to put his submissions first so that he could then hear the applicant’s submissions with a more complete understanding of the issues. He was then taken through various documents in the court book, including those relied on by the applicant. At the completion of the respondents’ counsel’s argument, the primary judge summarised his position, indicating that he was doing so for the applicant’s benefit. There was then a short adjournment before which the primary judge summarised what he had sought to achieve in his exchanges with the respondents’ counsel:

When I come back you will have an opportunity to address me in relation to all of these matters. I have tried in my last exchange with Mr Perla to try to nail down, as it were, in a summary form what he says, to try to assist you. I will hear you in relation to all of that when I come back.

51. The applicant then addressed the Court, at the conclusion of which the primary judge asked whether there was “anything else you wanted to put to me”, to which the applicant responded “No, that’s fine”.

52. Finally, in relation to this first matter, there is no suggestion that the transcript was edited. It is correct that the applicant’s submissions eventually occupied less than four pages of transcript. However, the transcript confirms that he was given the opportunity to make whatever arguments he wanted to put, and that at the close of his argument he indicated to the Court that he had nothing further to say. The applicant had already made written submissions which were in the court book.

53. The second and substantial ground relied on by the applicant is dealt with in the primary judge’s analysis of the evidence, which we have summarised above. We agree with that analysis. Whilst the evidence indicates that the applicant may have suffered from the various conditions summarised by Dr McGrath in his report of 15 July 2020, it does not support any conclusion that those illnesses or conditions affected his ability to comprehend and evaluate advice and make decisions as to his own interests concerning his workers compensation claims and any other claims he believed he had against the respondents. This most clearly emerges from the correspondence between the applicant and the respondents in the period between October 2003 and October 2009. On the applicant’s case this was a period in which he suffered at times from severe anxiety and depression, post-traumatic stress disorder and ongoing myoclonic jerks as well as chronic back pain. Yet that evidence establishes beyond doubt that he remained able to function as described above and to manage his affairs with respect to essentially the same subject matter as he now contends he was disabled from addressing during that period and in the following six years.

Conclusion

54. For these reasons, the application for leave to appeal should be dismissed, as should the notice of appeal. The applicant should pay the respondents’ costs of each of those proceedings.

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Decision last updated: 11 August 2021