| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TAYLOR -v- RAMPONO [2008] WADC 144 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 26 MAY 2008 DELIVERED : 19 SEPTEMBER 2008 FILE NO/S : CIV 3729 of 1995 BETWEEN : MARGARET MARY TAYLOR Plaintiff
AND
JONATHAN RAMPONO
Defendant
Catchwords: Practice - Western Australia - Implied jurisdiction of the District Court - Application to dismiss for want of prosecution - Turns on its facts Legislation: Nil Result: Application dismissed
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Representation: Counsel:
Plaintiff : No appearance
Defendant : Mr J Ley
Solicitors:
Plaintiff : Not applicable
Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Birkett v James [1978] AC 297
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1 DEPUTY REGISTRAR HARMAN: Each of the plaintiff's claims in the action is for damages for loss arising from breach of duty of care. The defendant now applies to have the action dismissed for want of prosecution. He carries the onus of persuasion which he seeks to discharge by satisfying the second limb of the principle expressed by Diplock LJ in Birkett v James [1978] AC 297 at 318: that the plaintiff has been guilty of inordinate and inexcusable delay in prosecuting the action and that the impact of the delay had been such as would either give rise to a substantial risk that it would not be possible to have a fair trial of the issues in the action or be likely to cause or have caused the defendant serious prejudice.
2 It is common ground that at all material times the defendant was a medical practitioner practicing in psychiatry and the plaintiff either was or had been his patient. It is also common ground that the plaintiff was the defendant's patient between April 1988 and January 1991. 3 According to the defendant's written submissions he relies on four periods of delay. The first, of almost 5 years between the conclusion of the treatment and the commencement of the proceedings in December 1995. The second, of 5 years and 6 months between the date that the defendant entered an appearance and the date that the statement of claim was filed. The third, of 3 years commencing in April 2002 when the plaintiff obtained an order for leave to issue a writ of subpoena against the Medical Board of Western Australia until the plaintiff's solicitor suggested that the action was ready to be entered for trial. The last, is unspecified but is identified by reference to the fact that the trial did not commence on the two occasions that it has been listed to do so. 4 As for the first, I have no difficulty with the proposition that by the measure of the limitation period that applied to the plaintiff's causes of action, she commenced the action towards the end of that period, however the period prior to commencement of the action could not be considered as a period of delay in the prosecution of the action as it only came into existence upon the issue of the writ. Having recorded that result, I have no difficulty with the proposition that the fact that the claims in the action relate to events that occurred at least 5 years prior to the issue of the writ may speak to prejudice to the defendant or the prospect of unfairness at trial. As there is no evidence of any activity on the part of the plaintiff during each of the second and third periods I have no difficulty with the proposition that they reveal delay on the part of the plaintiff in prosecuting the action. As for the last, according to the court's file, the first occasion that trial had been due to commence was on 6 June 2007 but (Page 4)
on 7 May 2007 the trial dates were vacated. The mechanism by which the action then went to a listing conference is not apparent however it was so listed in both June and July 2007. There is no evidence relating either to those events or to that period of time other than that on each occasion the conference was adjourned. In August 2007 the action was listed for trial commencing 31 March 2008. In the absence of more it would be difficult to constitute the period or parts of the period between June 2007 and March 2008 as a period or periods of delay on the part of the plaintiff. 5 In seeking to establish his case in relation to the last the defendant contended that on each date the trial had been due to commence the plaintiff had been responsible for it not proceeding. 6 On his successful application to vacate the trial dates in June 2007 the defendant had relied on evidence in the affidavit of his solicitor, Dominic John Bourke, sworn 3 May 2007. The significant features of it are that the plaintiff had not then answered interrogatories and that the medical examination of the plaintiff by a witness proposed to be called by the defendant had not then been undertaken. It transpired that the interrogatories were not answered until December 2007, after the defendant had obtained an order requiring the plaintiff to do so. She did not undergo the medical assessment until August 2007. 7 As for the interrogatories, I note that on 24 November 2006 the action had been listed for trial and on 28 November 2006 the defendant filed the interrogatories. If the answers had been sought for the purpose of getting up his case for trial, by administering the questions after the action had been listed, at the very least the defendant ought be taken to have accepted the need to do more than simply monitor whether the plaintiff had responded. Further, although leave to interrogate was not put in issue when the plaintiff was ordered to respond, I note that the defendant did not have leave. 8 As for the medical examination, according to par 24 of Bourke's affidavit, subsequent to the pre-trial conference in August 2007 he had commenced enquiries to find an interstate expert to examine the plaintiff as she had declined to be examined by a local expert. In the period leading up to trial the defendant had made arrangements to have the plaintiff examined in Sydney, to which she then objected, and later in Melbourne only then to find that the plaintiff was not prepared to travel at all for the purpose. In her affidavit sworn 9 April 2008, Hayley Marie Ross, a legal practitioner employed by the defendant's solicitors also gives evidence upon which it is open for the court to infer (Page 5)
that prior to the conclusion of the pre trial conference the defendant had not had the plaintiff examined. 9 No doubt the defendant's accommodation of the plaintiff arose from a judgment. Although the plaintiff was responsible for frustrating the defendant's expectations, I consider that it is beyond the proper scope of the application for me to attempt to unravel the considerations that the defendant took into account in making it. Even if I had otherwise been persuaded, whilst there is the prospect that the defendant had not previously had the plaintiff examined, the defendant would be taken have accepted the risk that the arrangements made at a relatively late stage in the proceedings would unravel and have an impact on the trial. 10 I do not know whether the costs of the application to adjourn were contested. The order sought and made was that they be in the cause. If for any reason the court had considered that it was appropriate to attribute responsibility for the adjournment to one party there is no evidence of any such finding. In my opinion what I have canvassed could not justify the conclusion that the plaintiff was responsible for vacation of the June 2007 trial dates. 11 On 31 March 2008, the first day of the next dates that the action had been listed for trial, the trial was adjourned and the costs were reserved. Perhaps by that time it had no longer been accurate to describe that date as the first day of trial because on 6 March 2008 the court had made the following order: "1. The application to amend the Defence be adjourned to the Trial. 2. The Defendant and his Counsel are to attend the Trial on 31 March 2008, but the Defendant is not required to take further action to prepare the action for Trial and his expert witnesses are not required to be available to give evidence on the dates for which the trial is listed. 3. Costs of today be reserved." 12 I will come to the application to amend later in my reasons. 13 On that day the action had come on for directions. The listing for directions had been ordered on the plaintiff's solicitor's success in his application for leave to cease to act. Neither the plaintiff nor her solicitor (who had not then satisfied the condition of the grant of leave to cease to act) attended the directions hearing. The court then had before it an (Page 6)
affidavit of Ross sworn 5 March 2008 in which she deposes to what had transpired on the hearing of the solicitor's application as follows: "5. During the hearing of the Application, Mr Johnson submitted, amongst other things, words to the effect that to him, it was 'absolutely clear that the matter cannot proceed to Trial yet from the plaintiff's perspective'. He also said that in relation to the Plaintiff’s key expert witness, there was a crucial issue that was not yet finalised, about which he had been trying to get instructions from the Plaintiff for some time, but that to date, he had been unable to. 6. He further said words to the effect that he thought it was certainly not the type of case that the Plaintiff could conduct herself, due both to the complexity of the case and due also to her medical condition. He said he thought she was not in a position to be able to comprehend going to Trial next month." 14 In her affidavit of 9 April 2008 sworn in support of the application before me Ross deposes as follows: "30. On or about 8 February 2008, I spoke with Mr Johnson who foreshadowed to me that he was planning to bring an application for leave to cease to act for the Plaintiff in these proceedings. 31. He said to me words to the effect that he had not been able to obtain instructions from (the plaintiff) for some time and that he was no longer able to act for her. … As to the Trial dates, Mr Johnson said that he was unsure whether the Plaintiff could or would be able to proceed on that day. He said words to the effect that she may have already instructed new lawyers and she may want to go ahead on 31 March 2008 and that, as such, he could not speculate what would happen to the Trial dates, if anything." 15 Upon that evidence the defendant would have me draw the inference that the plaintiff had not been ready for trial. Either having drawn that inference or to assist me to that end he proposed that I should unseal the plaintiff's former solicitor's affidavit filed in support of his application that had been sealed at the conclusion of the hearing. (Page 7)
16 Despite the fact that at par 5 of her earlier affidavit Ross deposes to what was conveyed by the plaintiff's former solicitor as having been submissions, short of unsealing the affidavit there is no basis upon which to determine whether what was stated were any more than observations. Although strictly speaking it is only submissions that are made on an application and they would be supported by evidence, it is relatively easy to consider the prospect that the court would have reflected upon the fact that trial was imminent and that there would have been some discourse as to the likely impact of the result of the application on the trial. I do not consider that the fact that what had been conveyed had been conveyed to the court would enhance its significance. In any event it is unlikely that the evidence that the defendant speculates or perhaps hopes that I would find in the solicitor's affidavit would be set out in such clear terms. To that consideration I would add that there is also the difficulty that would emerge in the event that to justify a conclusion upon the evidence it was necessary to refer to part or parts of it. I would add that in relation to the solicitor's reference to the expert, because the plaintiff brings a number of cases there is a real chance that absent there being some real precision on the point in the affidavit, its impact on the action would be difficult to assess. Having expressed all of that I accept that there is a prospect that the defendant would be able to make submissions upon the content of the affidavit to some useful end but even he recognised that he would not be given access to it. I am satisfied that nothing of significance has changed since the order was made to seal the document to justify setting it aside. The court has no interest in the application. 17 The defendant's application to amend had been due to be heard on 14 March 2008. It has not yet been considered. No affidavit has been filed in support of it. Having considered the dimensions of the amendments proposed and the time at which they were proposed there is at least the prospect that in determining whether to grant leave consideration would have been given to whether the trial on the amended defence could have proceeded. Two measures of the extent of the changes are that the number of paragraphs increases from 18 to 31 and the length of the document from 2 to what would be about 8 pages of text. 18 Even if there is there is something compromising for the plaintiff in her former solicitor's affidavit, whilst there is the prospect that the proposed amendment at least in part accounted for the fact that trial did not proceed it would be difficult to attribute responsibility for the result to the plaintiff. I am not satisfied that the plaintiff was either solely or overwhelmingly responsible for the fact that the trial was adjourned on 31 March 2008. (Page 8)
19 The defendant contends that each of the periods of contended delay ought to be characterised as inordinate and, in the absence of any evidence of the plaintiff, inexcusable. I do not have any difficulty with either of those propositions as they relate to the second and third periods. I reached those conclusions despite the prospect that the plaintiff is somehow disadvantaged either as a result of the fact that she is not presently represented or due to the impact of her pleaded medical condition. 20 It is then a matter of considering whether the plaintiff's delay has created a substantial risk that it is not possible to have a fair trial of the issues in the action or have been such as to be likely to cause or have caused serious prejudice to the defendant. 21 The evidence provided in support of the application is properly considered in the context of what is found to be in issue in the action on the close of pleadings. 22 There are some differences between the parties in relation to the facility at which treatment was provided over different parts of the period of treatment and the frequency of treatment at Graylands Hospital in the latter part of the period. The plaintiff contends that until April 1989 she consulted the defendant at Swan Clinic; that from about January 1989 until late April 1989 and from late November 1989 to about May 1990 she did so at Heathcote; that in the period from about June 1989 to about November 1989 she did so at Bentley Clinic; and from about May 1990 until about 3 January 1991 she did so at Graylands Hospital. The defendant contends that the treatment at Swan Clinic concluded in mid January 1989. Thereafter up until May 1990 he does not differentiate between Bentley Clinic and Heathcote as having been the facility at which he treated the plaintiff. He does not deny that the treatment at Graylands Hospital continued until about 3 January 1991. As to the frequency of treatment at Graylands, there is a difference between the parties of about one month on the change from weekly to fortnightly sessions and the plaintiff puts the balance of the period on a fortnightly basis whereas in two months at the end of the period the defendant pleads monthly treatment. 23 The defendant puts the plaintiff to proof of the allegation that prior to becoming his patient she experienced flashbacks. He denies that she consulted him for treatment for flashbacks and her general psychiatric wellbeing and contends that she presented with symptoms of depressive illness following child birth. The defendant admits par 6(a) of the statement of claim but in as many words denies par 6(b) and par 6(c). In par 6(b), she alleges her dependency and that such dependency arose (Page 9)
from the defendant's treatment and in par 6(c), her vulnerability and that she engaged in a process of transference. I consider that in each of par 6(b) and par 6(c) the plaintiff has put more than a single allegation. Each of the defendant's denials permits ambiguity in a context where practice demands clarity and thereby it is insufficient. The appropriate reading given to the pleadings is that as the allegations in par 6(b) and par 6(c) have not been denied they are deemed to be admitted. Such a curious result depends upon primacy being accorded to the pleading process. Accordingly the defendant admits that over the course of the consultations it was the fact and the defendant either knew or ought to have known that the plaintiff placed trust and confidence in him (par 6(a) of the statement of claim). He is taken to have admitted that due in part to the form of treatment provided the plaintiff was emotionally and psychologically dependent upon him (par 6(b)); and that the plaintiff was vulnerable and that through a process of transference, unconsciously projected emotions and reactions onto him (par 6(c)).
24 The defendant either admits or because of his silence, is properly taken to admit the each allegation of the existence of a duty of care made by the plaintiff at par 7 of her pleading. The allegations made at 7(a) and 7(c) are expressly admitted. Whether or not at par 8 of his defence the defendant mistakenly referred to par 7(b) intending to refer to par 7(d), the balance of the text of par 8 denies breach of the duty outlined by the plaintiff in par 7(d). As to the other of par 7(b) or par 7(d) the defence is silent. Accordingly the defendant either admits or is taken to have admitted that the therapeutic relationship between the parties generated in the defendant a duty to exercise due care, skill and diligence (par 7(a) of the statement of claim); to warn of material risks inherent in the provision of the counselling (par 7(b)); to maintain and improve the plaintiff's health and act in her best interests and to use reasonable care and skill in so doing (par 7(c)); and not to engage in any social contact (par 7(d)).
25 At par 8 the plaintiff pleads features of the treatment provided as follows: (Page 10)
26 Although in so many words the defendant denies par 8, read in the context of the plaintiff's pleading his response is ambiguous and thereby insufficient. Accordingly each allegation in par 8 of the statement of claim is deemed to be admitted. 27 Each of the first cases put by the plaintiff is founded on breach of the duty to exercise due care, skill and diligence in providing psychiatric treatment. In so doing she contends that the defendant inappropriately encouraged and/or allowed her to become regressed during therapy sessions; that he mishandled her emotional dependency and erotic transference to him; that he failed to encourage her to revert to her non-regressed state at the conclusion of therapy sessions; and that he did not seek guidance or supervision from a senior, appropriately qualified or experienced clinician. 28 In his response the defendant characterises each allegation of breach as a particular. Although that characterisation is inaccurate, his denial operates so as to put the plaintiff to proof of each allegation. Accordingly although the defendant is taken to have admitted that during therapy sessions he encouraged the plaintiff's regression to a child like state and/or that during the therapy sessions the plaintiff frequently regressed, he denies that it was inappropriate to encourage or allow the plaintiff to regress during therapy; although he is taken to have admitted that whilst the plaintiff was regressed he fostered and encouraged her emotional attachment and dependency upon him, he denies that he mishandled the process of transference by which such attachment and dependency was attained; and although he is taken to have admitted that he encouraged her to remain regressed and/or failed to encourage her to revert to a non-regressed state, he denies that following the completion of sessions during which she had so regressed he did not encourage her to revert to a non-regressed state. 29 As to the case that the defendant did not seek guidance or supervision from a senior, appropriately qualified or experienced clinician, the plaintiff's case is no further advanced than the point that the (Page 11)
defendant was a registered medical practitioner practicing in psychiatry. There is no pleading to establish the significance of any found breach. 30 The next case, put at par 19 of the statement of claim draws upon breach of the duty to warn. It is founded upon the plaintiff's contention at par 9 that inherent in the defendant performing the type of therapy there was a risk that she could develop regression, erotic transference and/or the development or aggravation of dissociative phenomena including the development of dissociative identity disorder. At par 10 of his defence after referring to par 9 the defendant denies that his management of the plaintiff was aimed at fostering or encouraging regression, erotic transference and/or the development or aggravation of dissociative phenomena including the development of dissociative identity disorder. The plaintiff makes no such allegation. There being no responsive pleading to par 9 of the statement of claim the risk is properly taken as admitted. 31 At par 10 the plaintiff asserts that the magnitude and potential severity of the risk was such that if warned the plaintiff and a reasonable person in her position would be likely to attach significance to it. At par 11 of his defence the defendant denies that allegation and asserts that the plaintiff was warned of the possibility of transference and of the likelihood of emotional distress. I take the "transference" pleaded by the defendant to be a reference to erotic transference for which the plaintiff contends. As for the expression "emotional distress", regardless of my layman's understanding of that term, simply reading the pleadings I would take it to be the case that the risk articulated by the plaintiff is of a different order of magnitude. I consider that the scope of the warning given was not as broad as the scope of risk pleaded by the plaintiff. 32 At par 12 of his defence the defendant denies par 11 of the statement of claim by which the plaintiff asserts of a duty to warn of the risk prior to seeking the plaintiff's agreement to proceed to treat, alternatively prior to treatment commencing. 33 At par 18 the plaintiff alleges that had she been made aware of the risk, she would not have agreed to undergo or have undergone such therapy. The defendant denies that allegation. He also denies the allegation made at par 19 of breach of duty to warn of the risk or of any risks involved "in such mode of psychiatric treatment". 34 On either the plaintiff's case or the scope of the difference between the parties it would be for the plaintiff to establish all but the risk associated with the therapy. (Page 12)
35 The plaintiff's next cases are founded on breach of the duty to maintain and improve her health and to act in her best interests (par 7(c)) and/or the duty not to engage in social contact with her (par 7(d)). She alleges that the defendant behaved in a sexual manner towards her; allowed and/or encouraged a sexual relationship between them; participated in a sexual relationship with her; engaged in sexual activity with her whilst she was in a regressed state; and abruptly and summarily terminated both the therapeutic and sexual relationship. In expressing those cases she draws upon allegations that are to the effect that on a significant number of occasions the parties engaged in sexual activity at different locations over the period from April 1989 to about 3 January 1991. At par 8 of his defence the defendant denies that there was any social contact between the parties. Thereafter his response to the cases is simply denial. At the relevant point of his pleading the defendant's denial is expressed as follows: "12. The Defendant denies the allegations in paragraphs (and here he lists a number of paragraphs) of the Statement of Claim." 36 Where a paragraph to which par 12 responds contains only one allegation I have no difficulty with the denial being sufficient. However in accordance with the analysis that I have already conducted it would be open to the plaintiff to persuade the court at trial that on those occasions where such a paragraph of her pleading contains more than one allegation that the response is ambiguous. That would bring the result that the relevant allegations would be taken as admitted. An instance of the plaintiff making multiple allegations to which par 12 of the defence responds is par 12 of the statement of claim in which she alleges sexual involvement and participation in a sexual relationship over a period along with the identification of the locations and circumstances that pertained at particular times. What I have canvassed would allow for the prospect that the plaintiff would succeed on the cases founded upon the pleaded breaches to the extent that they are founded upon sexual activity. 37 The case brought at par 20(e) is for breach as a result of the defendant abruptly and summarily terminating both the professional and sexual relationship. At par 14 she pleads that on or about 3 January 1991 during a consultation with the defendant she informed him that she believed she had become pregnant to him. At par 15 she pleads that immediately following that advice each of the relationships was terminated by the defendant. She goes on to plead at par 16 that the defendant did so when he knew or ought to have known that she would (Page 13)
thereby be at substantial risk of suffering severe psychiatric injury and without making any or any reasonably proper arrangement for transfer of her care to another psychiatrist. Paragraph 16 undoubtedly contains more than one allegation of material fact. It is a subject of par 12 of the defendant's response. 38 The last cases are that the defendant was negligent in providing the treatment and/or was negligent in his management of the doctor patient relationship. The particulars upon which those allegations are founded are each of the breaches that I have canvassed so far. 39 Following upon each of those allegations of breach the plaintiff pleads that as a consequence of the breaches she has suffered injury, damage, loss, expense and undergone treatment. She identifies as the particulars of her injury as dissociative identity disorder/multiple personality disorder, self harming behaviour which caused her self mutilate and lacerate parts of her body, post-traumatic stress disorder, adjustment disorder with depressed mood; and as a result of ingestion of medication, damage to her gums and teeth. Thereafter she specifies particulars of treatment, special damages and travel expenses and pain suffering and disability. Under the allegations of pain suffering and disability she specifies frequent and continuing regression to a childlike and other states (and that in such states she has on four occasions been sexually assaulted), frequent and continuing disassociation, continual suicidal idealisation (including approximately 10 suicide attempts since August 1991), frequent self-mutilation, scaring, symptoms of anxiety and depression and a profound loss of enjoyment of life. She claims gratuitous services and loss of earning capacity. In conclusion she seeks damages, aggravated damages, exemplary damages and interest. 40 The defendant denies those allegations alternatively that they are consequential upon any negligent act. Similarly so the plaintiff's claim for prospective loss. He concludes with a pleading that to the extent that s 38 of the Limitations Act (WA) 1935 would apply to any cause of action that accrued prior to December 1989 the plaintiff's claim is barred. As the plaintiff's claims are in tort it is not possible to presently determine the impact of that defence. 41 In summary, subject to the impact of the limitation defence, in relation to each case the plaintiff has established a founding duty of care. In each case it would be for her to establish breach of duty and her loss. In the case of the breach alleged that draws upon the allegations of sexual contact it would appear to me that there is a real prospect that it only remains for the court to pronounce the breach. (Page 14)
42 In his affidavit sworn in support of the application the defendant outlines the history of his professional relationship with the plaintiff and of the action. 43 At par 26 the defendant deposes as follows: "My lawyers have told me that they have had trouble locating some potential witnesses, and that other potential witnesses have said that they are unable to remember events that occurred in the relevant time period (that is, up to 15 to 20 years ago), or that they no longer have the medical notes that may be relevant." 44 In par 27 to par 30 the defendant refers to a series of examples. I take it that it was intended that each of those paragraphs would provide support for what he was told by his lawyers as he relates at par 26. 45 In par 27 he refers to Dr John Penman. The defendant states that at a time that I take to have been after the conclusion of the professional relationship between the parties and when Dr Lumley was the plaintiff's treating psychiatrist, that he sought guidance from Dr Penman. He states that he responded to Dr Lumley's request that he make contact with or meet the plaintiff in accordance with a course of action that he agreed with Dr Penman. 46 At par 28 he refers to Dr Brian Mowry. He states that he discussed the plaintiff's case with Dr Mowry in January 1991 and on 7 January 1991 provided Dr Mowry with a report about the plaintiff. The defendant has previously referred to Dr Mowry in par 9 of his affidavit where he deposes: " … at the direction of the then Acting Superintendent of Graylands Hospital, Dr Brian Mowry, in early January 1991 I arranged for just one further consultation to occur with (the plaintiff) in late January." 47 He also deposes that in about 1993 and 1994 there had been a relevant proceeding before the Medical Board of Western Australia and that Dr Mowry had then been contacted by the Board for assistance with its investigation. He further deposes that by his letter dated 9 February 1994 Dr Mowry had stated to the Board that had no memory of the case, the patient or discussions with the defendant. 48 At par 29 he refers to Dr John Milne, described as having been Superintendent of Bentley Clinic at the relevant time. He gives evidence (Page 15)
that Dr Milne had also been contacted by the Medical Board for assistance with its investigation and that Dr Milne has died. 49 At par 30 he refers to Dr David Jacobs, described as having been in mid 1991 the Superintendent of Graylands Hospital. The defendant deposes that he had then discussed with Dr Jacobs ongoing contact from the plaintiff and that Dr Jacobs gave him advice part of which resulted in him taking out a restraining order. The defendant outlines Dr Jacobs' involvement in what I take to have been two subsequent meetings with the plaintiff. He gives evidence that his lawyers have advised him that they are unable to locate Dr Jacobs; that he has no contact details for Dr Jacobs; and that a couple of his colleagues do not know how to locate Dr Jacobs. 50 The content of par 31 which relates to Catriona McComish who the defendant describes as the former director of the WA Sexual Assault Referral Centre is not expressed as support for par 26. The defendant states that his lawyers have advised him that they are unable to locate her. He defendant deposes that in approximately 1990 he had discussed the plaintiff's ongoing management with Ms McComish on an anonymous basis to seek her comments and opinion which he says she gave him. 51 Perhaps I will commence my analysis of what I have canvassed with the content of par 31. The defendant does not sufficiently identify the source of the information to permit its acceptance as hearsay. Had the information provider been identified, the evidence of the solicitor's inability to locate Ms McComish would be of little value as no foundation is provided for what is no more than a conclusion. There being no connection between par 31 and par 26 there is no basis to consider that the defendant's lawyers had characterised Ms McComish as a potential witness. Regardless of those considerations there is no basis upon which an assessment could be made of the significance of any information that Ms McComish might have been able to provide. Before I leave Ms McComish, at par 45 of her affidavit of 9 April 2008 Ross deposes: "In June 2007, I was instructed by Counsel to take steps to locate various potential witnesses." 52 Ms McComish is not mentioned in her affidavit. 53 There is no basis upon which to conclude that in not having located Ms McComish the defendant has lost a resource. There is nothing to suggest that any inability to locate Ms McComish since June 2007 would have any connection with delay on the part of the plaintiff. (Page 16)
54 To the statement that the defendant's lawyers have advised him that they are unable to locate Dr Jacobs I make the same observations as I did in relation to the sufficiency of the hearsay that relates to Ms McComish and for the same reasons. They apply equally to the statements of his colleagues and to the unattributed hearsay at par 26. Accordingly the fact that there is a connection between par 30 and par 26 does not assist the defendant. 55 According to the defendant's evidence, after the termination of the doctor-patient relationship with the plaintiff he had discussed with Dr Jacobs his ongoing contact with the plaintiff and Dr Jacobs gave him advice on a number of issues relating to her. Other than that the defendant should obtain a restraining order the advice is unspecified. On that scant evidence it is not immediately apparent how evidence of the discussions would relate either to any of the cases brought by the plaintiff or to the defence. As for the two meetings between Dr Jacobs and the plaintiff, the defendant deposes that he was not present at the first and gives no evidence to render the hearsay admissible. He says nothing as to the second other than that it occurred. 56 Part of the defendant's evidence that appears to relate to Dr Jacobs is that in documents discovered in the proceedings the plaintiff has made a number of allegations about how the defendant behaved towards her following the termination of the doctor-patient relationship. I make reference to it simply because I do not understand what I might make of it. On what I have canvassed of the pleadings and the evidence it would be relatively easy to conclude that to whatever it refers would not be relevant. 57 Turning to the evidence of Ross, at par 49 of her recent affidavit, I take it to be the case that Dr Jacobs is cited as an example of her response to counsel's instruction that she take steps to locate potential witnesses. However nowhere in her affidavit does Ross actually identify Dr Jacobs as a potential witness. She does not state that counsel considered Dr Jacobs to be a potential witness. Why it may have been the case that counsel may have considered Dr Jacobs to be a potential witness is also explained. On the whole of the evidence there is nothing to justify the description of him as a potential witness. As for the solicitor's efforts to locate him at the Royal Australian and New Zealand College of Psychiatrists, the response that she seeks to introduce is inadmissible as it is unfounded hearsay. According to her evidence, her efforts to locate him had been limited to the college, the defendant Dr Buchan and Dr Lumley. (Page 17)
58 It is difficult to discern the point or points at which the defendants' evidence relating to Dr Jacobs and the issues to be determined in the action would coincide. In my opinion the real significance of my observations and findings is that they mark the defendant's failure in the task of establishing Dr Jacobs as a lost litigation resource and the significance of that loss. 59 As for Dr Milne, in order that he would be characterised by the defendant as a potential witness the defendant would rely on the court ignoring the difficulty with par 26 and drawing an inference that his passing justified the proposition that his lawyers had had trouble locating him. 60 The defendant deposes that at the relevant time Dr Milne had been Superintendent at Bentley Clinic. He also deposes that that Dr Milne had provided a letter to the Medical Board dated 20 January 1994. The letter is attached to his affidavit but there is no basis provided for its content to be considered as evidence. The fact that Dr Milne is described as at "the relevant time" having held a particular position provides reason to reflect on the period that he held the position and whether in that or perhaps some other capacity he had any engagement with either party to the action. There is no useful evidence. I would add that par 48 of the affidavit of Ross concludes: "We are obviously now unable to seek Dr Milne's assistance as a witness in this case." 61 It is a definitive statement but it does not disclose the input that Dr Milne may have had as a witness. There is no basis upon which to reach the conclusion that upon the passing of Dr Milne the defendant lost a resource for the purposes of the action. 62 As for Dr Mowry it appears that from the defendant's reference to particular parts of the plaintiff's pleading and from the terms of par 9 of his affidavit that the evidence that Dr Mowry could have provided would relate to events in early January 1991 when he had directed or instructed the defendant to provide to the plaintiff only one further consultation at the end of that month. The manner in which the defendant's evidence is put at pars 9 and 28 suggests that the direction or instruction had cut across his intended course of action although what his intention may have been, I am not informed. It may be considered that the impact of the direction or instruction would speak to the plaintiff's allegation of breach in the form of the summary termination of her treatment pleaded as having occurred on or about 3 January 1991. The only indication of the (Page 18)
date of the direction is that the structure of par 28 of the defendant's affidavit would put it as having been in response to the report by the defendant to Dr Mowry dated 7 January 1991: after the date of the particular breach. 63 I have already considered that it would be open for the court to find the allegation that the defendant's treatment of the plaintiff had been summarily determined was deemed to be admitted. There is no case of breach relating to events after the conclusion of the defendant's treatment, only of the consequences of the termination that were visited upon the plaintiff. The defendant makes no allegation that relates to that period. 64 The content of a report to Dr Mowry from the defendant attached to the defendant's affidavit is not the subject of any deposition. 65 At par 47 of her recent affidavit Ross refers to Dr Mowry and states that he has informed her that he is unable to recollect the relevant time period which she specifies as January 1991. 66 On the whole of the evidence there is scope to consider that the defendant's contention that Dr Mowry was a potential witness has some support. However in the absence of more it is difficult to assess what his significance as a witness may have been. In submissions before me counsel put some emphasis on the plaintiff's contention that the defendant's treatment of her was not supervised. As I have already noted, that case appears only as an allegation of breach unfounded by any other pleading. Whatever may be made of it, there is no evidence to suggest that Dr Mowry supervised the defendant's treatment of the plaintiff prior to 7 January 1991. 67 Although at par 27 the defendant states that the case of Dr Penman provides an example of propositions expressed in par 26, there is nothing to support that contention. Accordingly on the defendant's evidence there is nothing to establish Dr Penman as a potential witness. 68 In his affidavit of 7 April 2008 Dr Penman deposes at par 7: "I have some memory of supervision that occurred with Dr Rampono however, due to the passage of time, I am unable to recall the specifics or content of any supervision we may have had at any time, or in early 1993". 69 He goes on to depose that the notes that he would have taken are no longer in existence. (Page 19)
70 The defendant deposes that in late 1992 and early 1993 Dr Penman was recognised as a senior consultant psychiatrist and supervisor and that he then discussed with Dr Penman the request of Dr Lumley that he make contact with or meet with the plaintiff. 71 The evidence of both the defendant and Dr Penman relates to a period of time subsequent to the conclusion of his treatment of the plaintiff. As I have already considered in the case of Dr Mowry, the pleadings do not present for determination any issue that emerged at that time other than the pleaded consequences of the determination of the relationships that are alleged by the plaintiff. 72 Before I leave par 27 of the defendant's affidavit I note that it concludes with the sentence: "In documents discovered in the proceedings to date, the Plaintiff makes certain allegations about my response to Dr Lumley, which I dispute." 73 There is no other evidence that would give meaning to what is expressed in that statement. The more significant consideration is that there is nothing to connect what it expresses with the prospect that Dr Penman would ever have been in a position to give any evidence on the point. 74 As for par 26, apart from the matter of admissibility of its content, my other observation is that any support from the examples that I have canvassed render its utility as being difficult to assess. It is only by the evidence of Ross that relates to Dr Jacobs that any precision given to the proposition that the defendant's solicitors have had trouble in locating witnesses. I would not regard what she describes in her efforts to locate him as being either extensive or onerous. She has simply made enquiry of the professional body, the defendant and a witness. As to the proposition that potential witnesses have said that they are unable to remember events that occurred at the relevant time, there is only evidence on point from Dr Penman. In the case of Dr Mowry, I take from par 2 of the defendant's affidavit that at par 28 he has cited his source of his information as the letter of Dr Mowry attached to his affidavit. It suggests that the memory of Dr Mowry of what may be relevant had faded prior to February 1994. I would suggest, not something that would be attributable to any delay on the part of the plaintiff. 75 I appreciate that the whole or parts of my analysis of par 26 to par 31 inclusive of the defendant's affidavit could be considered and perhaps (Page 20)
dismissed as pedantry. I would simply observe that in an application where the onus is on an applicant and it is evident that there would be no difficulty in the applicant presenting evidence I would have difficulty with the proposition that the court should either ignore any oversights or defaults or draw inference favourable to him. The inferences properly open are all adverse to him. 76 The issue of admissibility of par 26 to one side, I also have difficulties with the sufficiency of the evidence that the defendant's lawyers have told him that a potential witness or some potential witnesses no longer have the medical notes that may have been relevant. According to par 37 in November 1991 Dr John Taylor undertook a surgical procedure to reverse the result of the defendant's vasectomy. He goes on to state that he has been informed that Dr Taylor has destroyed his notes that relate to that procedure. 77 The hearsay at par 37 is not sufficiently attributed. Otherwise the defendant does not refer to any broader scope of relevant documents that might be in the hands of Dr Taylor. He has nothing to say as to the prospect that Dr Taylor may be able to give satisfactory evidence viva voce of the procedure conducted on the defendant. I accept that there is scope to consider that evidence in relation to the date of the surgery would be significant given the plaintiff's pleading of the conversation that occurred at the point of determination of her relationships with the defendant. I would simply point out that it is the defendant who carries the onus of establishing the grounds to justify the exercise of discretion for his benefit and on that evidence I do not consider that he has advanced his case. 78 To the findings that I have made in relation to the content of par 26 I would add that on first blush it purports to convey would appear to be a significant feature of the application. Ultimately regardless of its admissibility what are put as conclusions are in the most part unsupported. 79 The next feature of the defendant's evidence expressed at par 32 relates to the defendant's belief that some of his critical medical documentation has been lost or destroyed due to the passage of time. At par 33 to par 36 he gives the grounds for his belief that two bundles of clinical notes relating to the plaintiff, recording every interview with her over two periods of time have become lost or otherwise destroyed. One bundle would relate to the period of treatment between January 1989 to May 1989 and the other to the period between May 1990 and January 1991. He deposes that the bundle relating to the first period may have been lost during the devolution of Heathcote to psychiatric units at other (Page 21)
hospitals, alternatively that they may have formed part of the papers that he stored at a residential property in Mt Helena. He goes on to depose that some of those documents have been lost and may have been destroyed by termites. Ultimately he deposes that he does not know what happened to the notes from the first period. From par 36 I infer that the notes for the second period may similarly have been stored. 80 The defendant describes the documents as being critical medical documentation, although he does not describe to what aspect of the pleadings their content would relate. Bearing in mind the determinations that I have made in relation to what is in issue on the close of pleadings, I am not in the position to judge whether description of the documents as being critical is justified. 81 At par 12 he gives evidence that: "Since (February 1996) I have worked with Clayton Utz to prepare my case, including giving them ongoing instructions regarding each of the allegations made against me by the plaintiff and answering her request for further and better particulars of my defence. I provided to Clayton Utz copies of all relevant documents that I had in my possession, as requested, and I have attended to meetings and conferences with them, as required throughout that time." 82 I accept that prior to 2001 the defendant did not have the pleadings but considering his evidence at par 10, it is evident that he appreciated that significant features of whatever case or cases she would bring would include allegations relating to his clinical treatment and to sexual assault. When at par 12 he deposes that he provided copies of all relevant documents to his solicitors on request, there is no reason to consider that those words should not be taken literally and that whilst he may have retained his notes, copies of them or at least those relevant as measured by the scope of the endorsement had been provided to his solicitors. I do not have the benefit of recourse to the discovery of either party. It is also conceivable that in his discovery the defendant has identified the documents the subject of his evidence of loss or destruction. That prospect would also open the prospect that the plaintiff may have obtained copies of them in the course of getting up her case for trail. At the very least the defendant would have been more precise as to the date and circumstances of their loss or destruction. I make that observation as there is no evidence as to when any termite damage came to the defendant's attention. (Page 22)
83 Further it is conceivable that the defendant intended to convey that the documents stored at Mt Helena were placed there in or about 1999. That was in the period that the plaintiff's therapy was ongoing. It is also conceivable that the notes had some significance for the purposes of the investigation conducted by the Medical Board. In short, there are a number of issues that emerge from the context in which the evidence is given with which the defendant does not engage. Once again I consider that I am being invited to draw inferences in favour of the defendant in circumstances where the defendant ought to either have provided more comprehensive evidence or evidence of his inability to do so. 84 He deposes that he is distressed that the matter continues to hang over his head. He refers to the prospect that if the action is listed trial on a third occasion, not only will that trial be some time ahead due to the need for the parties and the court to accommodate a hearing of 12 days but also that on the appointed date for trial the plaintiff would not be ready to proceed. In that context he speaks of the likely impact on himself and his family. I anticipate that prior to any future listing the defendant would have his proposed amendments considered. At any listing conference it would be open to either party to make submissions and for the court to satisfy itself that the parties were ready to proceed to trial. 85 In that context the defendant proposes that the passage of further time will increase the likelihood that witnesses' memories will be affected. I accept the proposition but there is no basis upon which to evaluate the likely impact on the defendant's case. I accept that a proof of evidence would be considered to be a poor substitute good memory but before I reach a conclusion relating to loss of memory of a witness adverse to the plaintiff in the application I consider that I should have all of the facts within the capacity of the defendant to provide. By way of illustration if it had been the case that the defendant intended to call Dr Penman I would have expected the defendant to indicate whether he had been proofed and the scope of his proposed evidence. As it is, on the evidence of Ross, it is open to consider that prior to June 2007 the defendant had not considered locating Dr Penman for any reason at all. And I note that in part of the letter of the defendant's solicitors of 27 November 2006 attached to the affidavit of Bourke, the defendant's solicitor indicated to the plaintiff that he only intended to call the defendant and an expert. In my opinion there would be no reason to consider that what would properly be characterised as a late decision to seek witnesses should somehow reflect upon the plaintiff. (Page 23)
86 The defendant gives evidence that there is no guarantee that he will continue to be indemnified in the proceedings. From that I take it to be the case that presently he would not be exposed in the event of any finding in favour of the plaintiff. The defendant has not provided any evidence of the circumstances that could bring about the result that he is without an indemnity. 87 He also gives evidence of the need for him to advise his current employer of the proceedings and of any significant developments. He states that he would expect to be required to similarly advise any potential employer. He has been awarded Fellowship of the Royal Australian and New Zealand College of Psychiatrists and has 18 years experience in the practice of psychiatry. In 2003 he was appointed Chair of the Psychological Medicine Clinical Care Unit of King Edward Memorial Hospital and Princess Margaret Hospital. He does not currently intend to change his employment. He maintains a private clinic. In my opinion the features of the action would be known to the defendant's employer and his obligation to inform of developments would hardly be considered to be onerous. 88 The defendant gives evidence of the impact of the proceedings on his work and his patients. I accept that it reveals the need for him to allocate resources to the case for the purposes of trial has had a significant impact on his schedules and because of the nature of his work, on his patients. The impact on his patients has probably been significant as their particular needs would emerge during the pre and post natal periods; no doubt times where any number of profound stimuli may precipitate the need for treatment. I accept that on the occasions that trial has been approached the impact on the defendant's work and his patients would have been significant. I would observe that there is no evidentiary basis for those impacts to sound in prejudice to the defendant. 89 The final feature of his evidence in relation to prejudice is described by him as the stress of the litigation and the impact that is felt both by him and his family. The matter has been listed for trial on two occasions although it is probably accepted that on each those occasions the defendant would have been aware that in a period prior to the trial that it would not be proceeding. 90 At par 14 of his affidavit at a point prior to the vacation of the first trial dates the defendant gives evidence of his expectation that the court would be making a determination about the matters in issue and his disappointment when the dates were vacated. There is no suggestion that the defendant then had any concern as to whether he would be prejudiced (Page 24)
as a result of delay or that the trial process would be unfair. At par 17 and par 22, he gives evidence that in the period prior to the second trial dates he worked closely with his solicitors and counsel getting ready for trial. At par 22 he deposes that the work continued up until a date close to the date allocated to trial. 91 To the extent that the defendant relies on the proposition that he would be prejudiced if the action proceeds to trial, the significant feature of his case is that at most parts of it is unsupported by admissible evidence. At many parts the applicant does not provide sufficient evidence to establish more than scope for the perception that he would be prejudiced if the action was now tried. I will record at that point that I suspect that the implementation of case management has engendered a tendency for the court draw itself into a greater level of engagement in the progress of litigation to trial and that tendency may have generated an expectation that that the court would look beyond shortcomings in an application such as that before me. In my opinion on the contrary, it provides more reason to be circumspect. 92 To the extent that the defendant relies on the proposition that a trial would not be fair I have reservations. I have no difficulty with the proposition that a trial canvassing events that occurred up to 20 years previously would provide fertile ground for unfairness. Whether it is likely that the trial would be unfair to the defendant should be assessed on the basis of what would then be in issue. The defendant has had the opportunity to prepare his case over a considerable period and proceeded to trial on two occasions. On at least the first of those occasions he did so without there being any indication that he would seek to amend his pleading and evidently without any difficulty in bringing his then intended witnesses. The plaintiff's cases emerge from a context where he has had the advantage of observing her during the course of therapy. On the basis of the content of his affidavit I take it to be the case that after the therapy was concluded he had at least some interaction with the plaintiff from which he may have derived some benefit for the purpose of the litigation. He has at least some of his contemporaneous notes. Whilst I have no doubt that to a significant extent that the resolution of the case will depend upon an assessment of credit there is nothing that draws me to the conclusion that it is likely that the trial would be unfair.
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