Toppi v Lavin
[2016] FCCA 830
•15 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOPPI & ANOR v LAVIN | [2016] FCCA 830 |
| Catchwords: EVIDENCE – Proof – expert psychiatric opinion evidence – purposes for which such evidence may be tendered – form in which such evidence ought usually to be tendered to ensure that the intended purpose of such evidence is met. PRACTICE AND PROCEDURE – Non-publication order – whether non-publication order should be made in relation to medical information relating to examinee. |
| Legislation: Bankruptcy Act 1966, s.81 Contracts Review Act 1980 (NSW), s.7(1) |
| Cases cited: Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 43 FLR 129 Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 Basecove Pty Ltd v Dolores Lavin Management Pty Ltd & ors [2009] NSWSC 1315 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70; (2007) 159 FCR 397 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Davie v Edinburgh Magistrates 1953 SC 34 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 Lavin v Toppi [2014] NSWCA 160 Lavin v Toppi [2015] HCA 4; (2015) 254 CLR 459 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 National Australia Bank Ltd v Cunningham [2014] NSWSC 1095 National Australia Bank Limited v Lavin [2011] NSWSC 440 Paola Toppi v Dolores Lavin [2013] NSWSC 1361 Patterson v The Queen [2005] NTSC 83 R v Burns [1999] SASC 511; (1999) 154 FLR 190 R v Gagliardi and Filippidis (1987) 45 SASR 41 R v Hakim (1989) 41 A Crim R 372 R v Westley [2004] NSWCCA 192 Subramaniam v The Queen [2004] HCA 51; (2004) 79 ALJR 116 Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 van Soest v Residual Health Management Unit & Ramstead [1999] NZCA 206; [2000] 1 NZLR 179 Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 |
| First Applicant: | PAOLA TOPPI |
| Second Applicant: | NEIL CUNNINGHAM |
| Respondent: | DOLORES LAVIN |
| File Number: | SYG 2223 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 24 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 15 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr G McDonald |
| Solicitors for the Applicant: | Gavin Parsons And Associates |
| Counsel for the Respondent: | Mr M Pesman SC with Mr C Alexander |
| Solicitors for the Respondent: | Beazley Singleton Lawyers |
ORDERS
The application in a case filed on 23 November 2015 is dismissed.
The non-publication order made on 24 February 2016 be discharged at 5.00 pm on 29 April 2016.
Until 5.00 pm on 29 April 2016 these reasons for judgment must not be disclosed to any person other than:
(a)Ms Dolores Lavin; and
(b)the legal representatives of Ms Dolores Lavin; and
(c)the legal representatives of Ms Paola Toppi and Mr Neil Cunningham; and
(d)the associates of Judge Manousaridis.
The parties have liberty to apply on such notice as the circumstances warrant to extend or otherwise to vary orders 2 and 3.
Subject to order 6, Ms Dolores Lavin pay the costs of the application in a case filed on 23 November 2015.
The parties have liberty to apply to vary or discharge order 5, provided such application is made by 29 April 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2223 of 2015
| PAOLA TOPPI |
First Applicant
| NEIL CUNNINGHAM |
Second Applicant
And
| DOLORES LAVIN |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Dolores Lavin, who is a bankrupt, applies for an order to discharge an order for the issue against her of a summons for examination. The order was made under s.81 of the Bankruptcy Act 1966 (Cth) (Act) on the application of two creditors, Ms Paola Toppi and Mr Neil Cunningham.
Ms Lavin relies on medical grounds to discharge the order made under s.81 of the Act. She claims she suffers from mental conditions that will significantly deteriorate if she is compelled to undergo an examination, and that her mental condition will impair her ability to participate in the examination. Ms Lavin also relies on a non-medical ground for the discharge of the summons for examination; she claims Ms Toppi’s and Mr Cunningham’s intention to proceed to examine Ms Lavin is an abuse of process.
Ms Lavin’s application came before me for hearing on 24 February 2016. Before I heard the application, counsel for Ms Lavin applied for, and I made, an order under s.13(7) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act) excluding from the Court during the hearing of the application all persons other than the parties’ legal representatives, the legal representatives of Ms Lavin’s trustee in bankruptcy, and two visiting judges from Thailand. Also on the application of Ms Lavin, I made an interim order under s.88J(1) of the FCC Act that, until further order, the evidence that was to be tendered on Ms Lavin’s application, submissions that were to be made on that application, any evidence given in Court, and any matters disclosed in Court based on the medical evidence relating to Ms Lavin, would remain confidential (Confidentiality Orders).
I indicated to counsel for the parties that, in the reasons for judgment I would publish in relation to Ms Lavin’s application to discharge the examination order, I would also consider whether the Confidentiality Orders should be continued. I also indicated that, whatever orders I were to make concerning the continuation of the Confidentiality Orders, I would restrict publication of my reasons for judgment for a period of two weeks to allow Ms Lavin an opportunity to make whatever application she may be advised to make.
In these reasons for judgment, therefore, I consider both Ms Lavin’s application to discharge the examination summons, and whether the Confidentiality Orders should be continued.
Background
Ms Toppi and Ms Lavin were the directors of, and equal shareholders in, Luxe Studios Pty Ltd (Luxe).[1] Luxe was the trustee of the Luxe Unit Trust of which Basecove Pty Ltd (Basecove) and Dolores Lavin Management Pty Ltd (DLM) were the equal and only unit holders.[2] Ms Toppi was the principal of Basecove, and Ms Lavin was the principal of DLM.[3]
[1] See Lavin v Toppi [2015] HCA 4; (2015) 254 CLR 459 at [4]-[18]
[2] Basecove Pty Ltd v Dolores Lavin Management Pty Ltd & ors [2009] NSWSC 1315 at [1]
[3] Basecove Pty Ltd v Dolores Lavin Management Pty Ltd & ors [2009] NSWSC 1315 at [1]
In 2005 Luxe purchased a property for the purpose of conducting a photographic studio business. The purchase was funded by loans from National Australia Bank (bank) which, following a consolidation of those loans by the bank in 2008, came to be secured by guarantees given by each of Ms Lavin, DLM, Ms Toppi, Mr Cunningham, and Luxe Productions Pty Limited.[4]
[4] Paola Toppi v Dolores Lavin [2013] NSWSC 1361 at [7]
The commercial relationship between Ms Toppi and Ms Lavin deteriorated as recounted by Rein J:[5]
There were, in 2008 and 2009, conflicts between [Ms] Toppi and [Ms] Lavin which came to a head in May 2009 when [Ms] Toppi was locked out of the premises. [Ms] Toppi sought the appointment of a receiver to Luxe Productions and Luxe Studios. This Court appointed receivers on 11 November 2009 and on 8 January 2010 the Bank appointed other receivers to the Luxe property.
[5] Paola Toppi v Dolores Lavin [2013] NSWSC 1361 at [5]
The property was sold in May 2010, but the proceeds were insufficient to discharge the bank loan. In the meantime, the bank sought to enforce by action in the Supreme Court of New South Wales the guarantees Ms Toppi, Mr Cunningham, Ms Lavin, and the companies had each given (Enforcement Proceedings).[6]
[6] Some of the history of the Enforcement proceedings is set out in National Australia Bank Limited v Lavin [2011] NSWSC 440
On 21 July 2010 Ms Lavin and DLM, but not Ms Toppi, Mr Cunningham or Basecove, filed a cross-claim in the Enforcement Proceedings in which they claimed the bank procured Ms Lavin’s and DLM’s execution of the guarantees by unconscionable conduct. On 8 September 2010 the bank, Ms Lavin and DLM, settled their respective claims on terms that included Ms Lavin and DLM paying to the bank around $1.35 million of the outstanding loan. The amount paid by Ms Lavin and DLM was substantially less than half the balance of the loan that was then owing to the bank.
In early 2011 Ms Toppi and Mr Cunningham sold their home to pay the outstanding balance of the loan. At the time they paid the bank in full, the outstanding balance of the loan was around $2.9 million. Ms Toppi, Mr Cunningham, and Basecove then commenced proceedings in the Equity Division of the Supreme Court of New South Wales seeking contribution from Ms Lavin and DLM in relation to the disproportionate amount of the loan Ms Toppi and Mr Cunningham paid to the bank (Contribution Proceedings).[7]
[7] Paola Toppi v Dolores Lavin [2013] NSWSC 1361 (Rein J)
Ms Lavin and DLM defended Ms Toppi’s and Mr Cunningham’s claim on the ground that, in the deed by which they and the bank settled their respective claims, the bank covenanted not to sue Ms Lavin and DLM for any part of the outstanding loan. Ms Lavin claimed the covenant released her and DLM of their obligations to contribute equally to discharge the debt she, Ms Toppi, Mr Cunningham and the other companies had guaranteed.
Ms Lavin and DLM failed in their defence in the Contribution Proceedings, and failed in appeals they brought, first in the New South Wales Court of Appeal,[8] and, finally, in the High Court.[9] Shortly after Ms Lavin and DLM failed in the High Court, Ms Lavin presented a debtor’s petition; and Ms Lavin became bankrupt on 19 February 2015, when the Official Receiver accepted her petition.
[8] Lavin v Toppi [2014] NSWCA 160 (Macfarlan, Emmett and Leeming JA)
[9] Lavin v Toppi [2015] HCA 4; (2015) 254 CLR 459 (French CJ, Kiefel, Bell, Gageler and Keane JJ)
On 20 March 2015 Ms Lavin’s trustee in bankruptcy (Trustee) circulated a creditors’ report.[10] In that report, the Trustee identified two pieces of land of which Ms Lavin was the sole registered proprietor. One is at 14/22 Wylde Street, Potts Point (Property). The Trustee noted Ms Lavin was the “sole registered owner” of the Property, that the Property was purchased on 18 February 2008 for $3.7 million, that a “Veda property valuation report” estimated the Property had a value of “between $2,058,000 and $3,288,000”, and that “Agentselect.com.au” estimated the value of the Property at “between $2,055,000 and $3,283,000”.[11] The Trustee also noted that Ms Lavin did not include the Property in the statement of affairs she had prepared. [12]
[10] Affidavit of P Toppi, 2.07.2015; Annexure PT1 (Exhibit PT1)
[11] Exhibit PT1, page 11
[12] Exhibit PT1, page 11
The Trustee referred to an interview with Ms Lavin on 9 March 2015. He reported Ms Lavin advised she was registered on the title to the Property in her capacity as trustee of the Wylde Family Trust. Ms Lavin provided the Trustee with “documentation relating to a change of trustee”, and she agreed to provide the Trustee with a copy of the trust deed. On 16 March 2015 the Trustee received a letter from the solicitor who purported to act for the trustee of the Wylde Family Trust, Billy Buckle Pty Ltd (BBP), which enclosed a copy of the trust deed.[13] There is in evidence a copy of the trust deed. It is dated 7 September 2007, and it is made between a Mr Mario Pamboris as settlor, and Ms Lavin as trustee. Under the deed, Mr Pamboris settled the sum of $100. The trust deed bears a notation that indicates that stamp duty on the deed was paid on 2 October 2013.
[13] Exhibit PT1, page 11
The Trustee noted that he had received “information and documentary evidence from a creditor refuting the assertion that the property is held on trust”.[14] The creditor to whom the Trustee was referring appears to have been Ms Toppi or Mr Cunningham. There is in evidence documents that counsel for Ms Toppi and Mr Cunningham submits suggests the trust purportedly created by the trust deed is not genuine, or otherwise was not intended to be effective. That evidence includes the following:
[14] Exhibit PT1, page 11; Exhibit A, pages 94-108
a)On 12 September 2013, Rein J published reasons for decision concluding that Ms Lavin was liable to pay contribution to Ms Toppi and Mr Cunningham.[15]
b)On 12 September 2013, Ms Lavin replaced Mr Bill Gertos as the sole director, secretary, and shareholder of BBP.[16]
c)By deed dated 13 September 2013 BBP purportedly replaced Ms Lavin as trustee of the Wylde Family Trust.[17]
d)On 1 October 2013, Gertos Savell Katos, an accountancy firm of which Mr Gertos is a partner, lodged the deed with Land and Property Information office of New South Wales (LPI).[18] Under the heading “PRINCIPAL DEED” in the form by which the deed was lodged with the LPI, there is written “NOT RECORDED”.
e)By a prescribed form of mortgage dated 31 December 2013, BBP purported to grant to the existing mortgagee of the Property (Westpac) a mortgage over the Property.[19]
f)On 23 May 2014, the Court of Appeal dismissed Ms Lavin’s appeal from the orders of Rein J.[20]
g)On 24 June 2014, stamp duty was paid on a prescribed form of application to record a new registered proprietor executed by Ms Lavin as sole director and secretary of BBP.[21]
h)On 7 July 2014, Westpac executed a discharge of mortgage in relation to the Property.[22]
i)On 11 December 2013, Ms Lavin swore an affidavit in support of an application for an extension of time by which to comply with the requirements of the bankruptcy notice that was served on her in which she deposed to a number of matters relating to the Property without deposing anything that suggested she held the Property as trustee.[23]
j)On 24 January 2014, Ms Lavin swore an affidavit in support of an application for a stay of Rein J’s orders in which she deposed to a number of matters relating to the Property without deposing anything that suggested she held the Property as trustee.[24]
[15] Paola Toppi v Dolores Lavin [2013] NSWSC 1361
[16] Affidavit of P Toppi, 2.07.2015; Annexure PT2 , pages 475-489 (Exhibit PT2)
[17] Exhibit PT2, pages 473-474
[18] Exhibit PT2, page 472
[19] Exhibit PT2, pages 470-471
[20] Lavin v Toppi [2014] NSWCA 160
[21] Exhibit PT2, page 467
[22] Exhibit PT2, page 468
[23] Exhibit PT2, pages 190-195
[24] Exhibit PT2, pages 261-273
On 11 August 2015 Ms Toppi and Mr Cunningham filed an application with this Court requesting a Registrar issue summonses under s.81 of the Act to examine relevant or examinable persons. The application was supported by an affidavit made by Ms Toppi on 7 July 2015 in which she identified the relevant and examinable persons to whom summonses for examination should be issued. Ms Lavin was one of those persons.
Legal principles on which Ms Lavin relies
Counsel for Ms Lavin submits the Court has an implied power to discharge an order made under s.81 of the Act authorising the issue of an examination summons to a particular person where it would be oppressive or unfair to require that person to be examined. Counsel relies on the following passage from the reasons for decision of Olsson AJ in Patterson v The Queen, and the authorities to which his Honour referred in that case: [25]
[25] [2005] NTSC 83 at [18]-[22]. The emphasis in paragraph 22 from Olsson J’s reasons for judgment are those of Olsson J
[18] In the course of my judgment in R v Burns (No 2) (1999) 169 ALR 149, I pointed out that there can be no doubt that, at common law, a judge, exercising the inherent power of the Court, has a discretion to stay criminal proceeding where, by virtue of any situation, it would be unacceptably oppressive and unfair to an accuse to permit the trial to proceed (R v Gagliardi and Filippidis (1987) 45 SASR 418 at 433).
[19] If a stage is reached whereby, for example, the state of health of an accused is such that the person concerned is not fit to do justice to himself as a witness or undergo a substantial cross-examination then a proposed trial ought not to be permitted to proceed (cf R v Howson (1982) 74 Crim App R 172).
[20] The locus classicus on this general topic is the well-known decision of the Court of Appeal in Hakim (1989) 41 A Crim R 372 at 376-377. Kirby P (as he then was) emphasised the initial point that the jurisdiction was an exceptional one, to be used sparingly. He accepted the proposition that, whilst it will be a rare case in which intervening illness or the physical or mental condition of an accused will warrant a stay, nevertheless, if the Court concludes, on the evidence before it, that it would offend common humanity to require an accused to stand trial, a stay would be justified.
[21] In the case of Subramaniam v The Queen (2004) 79 ALJR 116 at 123 the High Court cited Hakim with approval. The joint judgment in Subramaniam reiterated that, on an application such as that now before me, it is the task of the judge to embark upon -
“a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice”.
[Walton [1993] HCA 77;(1993) 177 CLR 378 at 396]
[22] Some further assistance can be gleaned from the decision of the Court of Criminal Appeal in R v Westley [2004] NSWCCA 192. Dunford J, having referred to the cases of Austin and Littler in which a combination of factors such as the age of the accused, the state of his health, and the impact of delay had warranted a stay, stressed that it would not be enough for the evidence to indicate that the stress of a trial might cause an accused’s condition to deteriorate. The evidence needed to indicate that this would or probably would, do so and that the likely consequence would be serious.
The principle or principles that may be derived from this passage is that a criminal proceeding will be stayed if the accused suffers from medical conditions and, because of those medical conditions, the accused is not fit to do justice to himself or herself as a witness, or is not fit to undergo a substantial cross-examination, or it would offend common humanity to require the accused to face the criminal charge, or it would be unacceptably oppressive and unfair to require the accused to face the criminal charge, or the accused’s participation in the hearing, including his or her being cross-examined, would cause the accused’s condition to deteriorate.
Counsel for Ms Lavin submits, and counsel for Ms Toppi and Mr Cunningham does not dispute, that, by analogy, these principles apply to persons against whom orders for examination have been issued under s.81 of the Act. Thus, if Ms Lavin’s mental condition is such that it would offend common humanity to compel her to undergo an examination while she suffers from that condition, or her mental condition is such that, if she were compelled to undergo an examination she would be unable to do justice to herself, or it would be unacceptably oppressive and unfair to her, or her mental condition would deteriorate, then the Court has the power to make an order discharging the order that authorised the issuing against Ms Lavin of the summons for examination. For the purposes of these proceedings, I will accept that such a principle exists. The question, then, is whether Ms Lavin suffers from any such mental condition.
Evidence of Ms Lavin’s mental condition
Ms Lavin relies exclusively on a report prepared by Dr Jonathon Adams, a forensic psychiatrist.[26] There is no issue Dr Adams has the necessary specialised knowledge based on training and experience to have undertaken a psychiatric examination of Ms Lavin, and to express opinions about Ms Lavin’s mental condition based on that examination.
[26] Affidavit of J Adams, 2.02.2016; Exhibit JA1
The matters about which Dr Adams was requested to provide an expert opinion are described in a letter dated 18 December 2015 from Ms Lavin’s solicitors (letter of instructions). [27] The letter stated that Ms Lavin “says that she is unable, for medical reasons, to be able to respond to or deal with questions put to her in the proposed Examination (in the nature of a court cross examination) before the Federal Circuit Court”.[28] The letter requested Dr Adams to provide an opinion on two matters. The first was whether Ms Lavin:[29]
has a medical condition that would affect the way in which she was able to respond to, or deal with questions put to her in cross examination and if so, how would that medical condition affect the [way] in which our client was able to respond to or deal with the questions.
[27] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 11-13
[28] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 12
[29] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 12
The letter of instructions requested Dr Adams provide his opinion on this question on two alternative assumptions. The first is that Ms Lavin will be examined in open court – that is, in circumstances where Ms Toppi, Mr Cunningham, other creditors, and members of the public, including members of the press, would be present. The second is Ms Lavin will be examined in closed court.
The second matter on which Dr Adams was requested to express an opinion is as follows:[30]
If you form the opinion that our client has some medical condition which would affect the way in which she was able to respond to, or deal with questions put to her in cross examination, then, due to your expertise, you may be in a position to suggest measures which the Court could impose so as to effectively eliminate any effects the examination would have on our client, such that she would be able to respond to and deal with questions put to her. Please note again that one important requirement is for our client to be able to answer the questions truthfully.
[30] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 12
The letter of instructions contained a “Chronology of Legal Proceedings”[31] that related only to the Enforcement Proceedings, and to the Contribution Proceedings. The chronology does not refer to a separate set of proceedings Ms Lavin and DLM commenced against Ms Toppi in the Supreme Court of New South Wales (2011 Proceedings).[32] In those proceedings, Ms Lavin and DLM alleged that Ms Lavin and Ms Toppi were partners, and claimed contribution and other relief against Ms Toppi.
[31] Affidavit of J Adams, 2.02.2016; Exhibit JA1, pages 14-15
[32] Exhibit A, page 32
Dr Adams was also provided with a report dated 4 November 2015 by Dr Barbara Rysenbry, a clinical psychologist.[33] The report noted Ms Lavin had been referred to Dr Rysenbry on 13 August 2015 under a mental health treatment plan. Dr Rysenbry described Ms Lavin’s symptoms as indicating she was suffering from “considerable anxiety to the extent that she is not sleeping and she describes constant paranoia and hypervigilance about encountering the creditors whom she describes are pursing [sic] action against her”, and that she “constantly fears that she will be physically harmed by one of these people”.[34] The report also noted Ms Lavin “describes symptoms of depressed mood, anhedonia, social withdrawal and panic”.[35] Dr Rysenbry concluded that “Ms Lavin’s acute anxiety and depression renders her unfit to face questioning in an adversarial court situation”.[36]
[33] Affidavit of J Adams, 2.02.2016; Exhibit JA1, pages 16-20
[34] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 19
[35] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 19
[36] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 20
Dr Adams begins his report by setting out Ms Lavin’s personal history. This records that Ms Lavin had attained her developmental milestones, that Ms Lavin’s school years were “good”, that she had worked her way up to managerial level after which she established her own photography agency in the early 1990’s, that she had always been in a relationship, and that she currently was in a positive relationship.
Dr Adams then turns to what he describes as Ms Lavin’s “Deteriorating Mental Health from 2010 Onwards”.[37] Dr Adams here records matters Ms Lavin reported to him. Ms Lavin said that in 2005 she began Luxe Studios with Ms Toppi, that by 2008 Ms Lavin and Ms Toppi had built and opened a new studio, resulting in a bill totalling $8 million; this occurred at around the time of the global financial crisis; “it gradually became evident that Ms Toppi had a gambling problem and she borrowed significant amounts of money from the business” and that “their relationship became increasingly turbulent”; Ms Toppi had a “toxic” relationship with her partner, Mr Cunningham, “causing further issues for their business relationship”; “unbeknown to her Ms Toppi declared the business insolvent”, and that “the battle began”; and although between 2008 and 2010 she had significant involvement in legal proceedings, and felt “harassed”, Ms Lavin felt she was “tough” and emotionally strong enough to deal with the adversity.[38]
[37] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 4
[38] Affidavit of J Adams, 2.02.2016; Exhibit JA1, pages 4-5
Dr Adams further recorded that Ms Lavin reported that she first noticed her mental state deteriorate in 2010 when Mr Cunningham screamed at her, and threatened to kill Ms Lavin while making a cutting gesture across his throat; as a result of that threat Ms Lavin froze and began trembling; Ms Lavin has continued to receive threats and harassment including being followed and tailgated while driving, harassment via social media, threatening text messages, abusive messages to her partner, and false accusations being sent to work clients, and that that continued until the end of 2015; Ms Lavin “described her ongoing anxiety, and described herself as generally, “paranoid””; she had “ruminating fearful thoughts”, likening these thoughts to drowning; she felt scared on a daily basis; she “described picking at her hair and nails regularly”, which was an uncharacteristic behaviour, and she described continuing “panic attacks on a regular basis, often precipitated by reminders of the legal proceedings, or communications from Ms Toppi and Mr Cunningham”; Ms Lavin contemplated suicide over the last two years, but she “never endured any fixed plans of suicide”; Ms Lavin had taken steps to ensure her safety, including moving house and disguising herself by wearing a hat and sometimes wearing a wig; and Ms Lavin described a “deteriorating level of functioning”, saying that she preferred to isolate herself from others, and avoid social situations; and that in 2010 Ms Lavin began trialling various herbal, natural and other self-help remedies, but when these proved ineffective she consulted her general practitioner who prescribed her with antidepressant medication.[39]
[39] Affidavit of J Adams, 2.02.2016; Exhibit JA1, pages 5-6
Dr Adams also records the question he asked and the answer Ms Lavin gave in relation to the possibility of her being cross-examined:[40]
I asked Ms Lavin about how she felt about the possibility of being cross-examined, and she replied that she felt “terrified”. I asked her why, to which she responded, “Because I want to be my normal self… what happens if I go into this bubble again… I’m terrified that they are going to ambush me and I can’t think straight”. Ms Lavin described her concerns about experiencing a panic attack whilst being cross-examined, and being unable to adequately provide a clear account. Whilst discussing the possibility Ms Lavin was increasingly distressed and tearful.
[40] Affidavit of J Adams, 2.02.2016; Exhibit JA1, pages 6-7
There is then a section of Dr Adams’ report titled “Mental State Examination”.[41] Here, Dr Adams notes Ms Lavin “presented as well kempt in her attire and grooming”, she “presented as anxious throughout the assessment, as well as agitated, changing position in her chair regularly and wringing her hands”; and she was “distressed and tearful on several occasions, particularly whilst discussing the legal proceedings and the impact upon her emotional state”. Ms Lavin, however, was not distracted by “unseen stimuli”, and she “engaged in the assessment process well”, speaking “spontaneously”, although her responses were interrupted by her emotional distress. Ms Lavin described her recent mood as “pretty bad” and “objectively she was depressed and anxious”. There was no evidence of thought disorder or delusional beliefs. Ms Lavin, however, “repeatedly returned to the topic of the ongoing legal proceedings, and her response style was occasionally tangential as a result”. As for cognitive capacity, Ms Lavin “was oriented in time, place and person”, although her ability to follow Dr Adams’ line of questioning “was slightly impaired, given her preoccupation with the legal proceedings, and her tendency to repeatedly return to this topic”. Ms Lavin “frequently became frustrated with not being able to recall accurate legal information, and apologised for the imprecision of her account”.
[41] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 7
This part of the report ended with what Dr Adams describes as Ms Lavin’s “level of insight”. Dr Adam notes that Ms Lavin:[42]
…appreciated the pathological basis of her symptoms of mental illness, and appeared to understand the relationship with these and the ongoing legal proceedings. She noted some benefits from psychological therapy, and expressed her wish to remain engaged in treatment. In my opinion Ms Lavin’s overall level of insight was good.
[42] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 7
After referring to the chronology, a medical certificate to the effect that Ms Lavin is receiving medical treatment for anxiety and depression, Dr Rysenbry’s report, and the affidavit of Ms Rebecca Ross which provides an account of the intimidation and harassment to which Ms Lavin claimed she had been subjected, Dr Adam presents his opinions. They are as follows:
a)Ms Lavin’s “clinical presentation is in keeping with the diagnosis of major depressive disorder with prominent anxiety, and a comorbid posttraumatic stress disorder”.[43]
b)It was evident “that Ms Lavin experienced the hallmark features of major depression including low mood, and the disturbance of sleep, concentration, energy levels, motivation, sense of humour, and enjoyment of social institutions”.[44]
c)Ms Lavin is experiencing “the classical symptoms of a posttraumatic stress disorder after she was reportedly threatened in 2010, with intrusive ruminations, distressing dreams, avoidance behaviour, hypervigilance, anxiety, and panic attacks”.[45]
d)Given “the severity of Ms Lavin’s major depressive disorder and posttraumatic stress disorder, in my opinion there are reasonable grounds to conclude that having to undergo cross-examination will precipitate a significant deterioration in her mental health” and that it was “reasonable to predict that Ms Lavin will experience severe symptoms of anxiety, and likely a panic attack, were she to be cross-examined”. This, in turn, will impair Ms Lavin’s “capacity to provide clear and coherent responses to the questions asked”.[46]
e)Ms Lavin’s “ability to follow legal proceedings would also be impaired, given her difficulties with concentration and recalling information”.[47]
f)There would not be any significant difference in the impact of a closed cross-examination process compared to an open cross-examination process in terms of the likely deleterious impact on Ms Lavin’s mental health.[48]
g)There are no adequate measures, for example, psychiatric medication, that could be put in place to improve Ms Lavin’s capacity “sufficiently to engage in cross-examination”.[49]
[43] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 8
[44] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 8
[45] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 8
[46] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 9
[47] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 9
[48] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 9
[49] Affidavit of J Adams, 2.02.2016; Exhibit JA1, page 9
What does Dr Adams’ report prove?
Counsel for Ms Toppi and Mr Cunningham submits that I should not accept the opinion of Dr Adams because his opinion is based in part on the assumption that the history Ms Lavin related to Dr Adams was true, but that history is demonstrably wrong in a number of respects. Counsel further submits that, given that the history Ms Lavin provided to Dr Adams is incorrect, it necessarily follows that the opinions Dr Adams stated in his report would need to be revised, and that the opinions he expressed in his report, therefore, have no probative value. Counsel submits that Dr Adams acknowledged that he would need to review his opinion. The following exchange between counsel for Ms Toppi and Mr Cunningham and Dr Adams may be taken as Dr Adams acknowledging that his opinion would need to be revised if the narrative Ms Lavin had provided to him was incorrect:[50]
. . . it must be reasonably obvious to you now that a very large part of what you were told turns out to be wrong, and that must necessarily involve you revisiting your opinions? ---Yes. If I could come back to what I was saying - - -
Certainly? --- - - - in terms of the assessment itself, as I was saying, we didn’t concentrate on the exact detail of the legal proceedings, and that was absolutely, as you said, given to me in the chronology of legal proceedings. Put simply, however, would it make me review my opinion: yes, it most certainly would.
[50] T37.40
Counsel for Ms Lavin, on the other hand, submits Dr Adams still held the opinions he expressed in his report. Counsel submits it was not put to Dr Adams that he had altered his opinion. In any event, counsel submits that Dr Adams’ observations of Ms Lavin were of equal importance to the formation of the opinions he expressed as were the matters Ms Lavin had reported to Dr Adams. In that regard, counsel relied not only on what Dr Adams described in his report, but on what Dr Adams said in evidence in response to questions I had asked:[51]
So is the only bas[is] upon which you say Ms Lavin is afraid of cross-examination, and that [it] is due to her depression, [is] the fact that that’s what she has told you, or there’s some additional basis?‑‑‑It’s on the basis of what she told me and on the basis of my objective findings when I examined her.
What are the objective findings which enable you to give the opinion that, because of the depressive symptoms she shows, that is a causal factor in her being anxious and afraid of undergoing cross-examination?‑‑‑The objective findings were each and every time we returned – or she, indeed, more often than not returned – to the legal proceedings, she appeared increasingly anxious. She was agitated and she manifested psychomotor agitation, wringing her hands. While she was discussing those issues, her concentration was impaired.
Yes?‑‑‑While she was discussing those issues, she appeared acutely anxious for all the reason I’ve just said, and her ability then to – and her capacity to provide responses during that time was diminished. As I’ve outlined [i]n my report, she became less clear. She tended to return to the topics of legal proceedings and then herself acknowledged that she’s not describing them in a very clear way and, indeed, she wasn’t. So it’s those objective findings – the fact that I saw them in front of me repeatedly during the examination – alongside all the other issues we’ve already discussed to lead me to conclude that she would likely experience similar, if not severe, symptoms of anxiety and a panic attack were she to be cross-examined.
But what makes you say that the anxiety she manifested to you was due to her being depressed or having suffered post-traumatic stress?‑‑‑That’s based upon my assessment and my diagnosis.
[51] T43.20
The following issues, therefore, arise:
a)Did Ms Lavin report matters to Dr Adams that were incorrect, or failed to report matters that rendered misleading or incomplete the matters she did report to Dr Adams?
b)Assuming (a) is answered in the affirmative, does that necessarily mean that Dr Adams cannot be taken to hold the opinions he expressed in his report?
c)Assuming (b) is answered in the negative, do the opinions Dr Adams expresses have any probative value and, if so, should I accept those opinions?
Accuracy and completeness of matters Ms Lavin reported to Dr Adams
I am satisfied that Ms Lavin failed to disclose to Dr Adams two relevant matters, and informed Dr Adams of one incorrect piece of information. The first relevant matter Ms Lavin failed to disclose relates to the cross-claim Ms Lavin and DLM filed in the Enforcement Proceedings. By that cross-claim, Ms Lavin and DLM sought, among other things, a declaration that the guarantee dated 28 October 2008 they signed was procured by the bank in circumstances that were unconscionable within the meaning of s.51AA or s.51AC of the Trade Practices Act 1974 (Cth) or s.12CA or s.12CC of the Australian Securities & Investments Commission Act 2001 (Cth), or which were unjust within the meaning of s.7(1) of the Contracts Review Act 1980 (NSW).[52] In the cross-claim, which Ms Lavin verified,[53] it was alleged that at all material times Ms Lavin was taking prescription medicine, being the drug, Zanex, and was under the care of a psychologist.[54] The cross-claim also alleged that, presumably at the time she signed the guarantee, she “was not reasonably able to protect her interests because of her age and/or state of mental or physical capacity”, and that she “was also on prescription medicine being the drug “Zoloft” and was under the care of a psychologist”.[55] These allegations are inconsistent with Ms Lavin having informed Dr Adams that the first occasion she noticed her mental health deteriorate was in 2010 when, Ms Lavin was recorded as saying, Mr Cunningham screamed at her and threatened her.
[52] Exhibit A, pages 18-31(Cross claim)
[53] Exhibit A, page 30
[54] Cross claim, page 20, [1e]
[55] Cross claim, page 2a, [11]
The second matter Ms Lavin did not disclose to Dr Adams was her having commenced the 2011 Proceedings.[56] In my opinion, Ms Lavin’s having commenced proceedings in 2011 against Ms Toppi, and in particular, her having done so before Ms Toppi had commenced proceedings against Ms Lavin, is, to a certain extent, inconsistent with Ms Lavin’s having informed Dr Adams that between 2008 and 2010 she felt she had significant involvement in legal proceedings, and felt “harassed”. That implies that Ms Lavin was claiming she was being harassed because Ms Toppi and Mr Cunningham had initiated litigation against her.
[56] Exhibit A, page 32
The incorrect piece of information Ms Lavin provided to Dr Adams is that, “unbeknown” to Ms Lavin, Ms Toppi had “declared the business insolvent”. I find that Ms Lavin intended her reference to “the business” to be a reference to the business Ms Toppi and Ms Lavin conducted through Luxe, and that she intended her reference to that business being “declared . . . insolvent” to be a reference to orders Brereton J made for the appointment of receivers and managers over, among other things, the Luxe Unit Trust. [57] Brereton J made those orders in proceedings that Ms Toppi, through Basecove as trustee for the Cunningham Family Trust, commenced in the Supreme Court of New South Wales. As Brereton J’s reasons for judgment make clear, however, Ms Lavin and DLM filed a cross-summons seeking the appointment of a new trustee. In addition, there is in evidence the first page of an affidavit made by Ms Lavin that was filed with the Supreme Court on 29 October 2009.[58] It follows, therefore, that Ms Lavin’s statement to Dr Adams that, “unbeknown to her”, Ms Toppi had “declared the business insolvent” cannot have been correct.
[57] Basecove Pty Ltd v Dolores Lavin Management Pty Ltd & Ors [2009] NSWSC 1315
[58] Exhibit A, page 1
Counsel for Ms Toppi and Mr Cunningham asked Dr Adams whether he was aware that Ms Lavin was the moving party in the proceedings that took place in the Court of Appeal and in the High Court. Although in a literal sense Ms Lavin was a moving party in those courts, the appeals were in substance defensive; they were a continuation of the defences Ms Lavin had unsuccessfully raised in the Contribution Proceedings.
Is Dr Adams to be treated as still holding his opinions?
There is force in the submission counsel for Ms Toppi and Mr Cunningham made that the inaccuracies in the matters Ms Lavin reported to Dr Adams necessarily means that Dr Adams cannot be taken to continue to hold the opinions he expressed in his report. I am not, however, prepared to find that, because of the inaccuracies I have identified, Dr Adams is to be treated as no longer holding the opinions he expressed in his report.
Although Dr Adams said he would need to revise his opinions, he was not asked whether he was in a position to so revise his opinions in the witness box having regard to the inaccuracies that counsel identified to Dr Adams. My impression is that, had Dr Adams been asked, he would have answered by saying that the inaccuracies would not lead him to abandon all of the opinions he expressed in his report. My impression is based on the evidence he gave in answer to my questions which I have set out above. The matter that appears to have weighed most heavily on Dr Adams’ assessment of Ms Lavin was her behaviour when he interviewed her.
That Ms Lavin provided inaccurate information to Dr Adams, however, is relevant to the credibility of all of the matters on which Dr Adams relied for his opinions. That, in turn, may affect the weight of his opinions. It is to that question I now turn. To be in a position to consider that question, however, it will be necessary first to say something about the purposes for which expert medical opinion evidence is tendered, and the form in which such opinion evidence should be tendered in order for the evidence to achieve its intended purpose.
Purpose and mode of presentation of expert psychiatric evidence
Sir Owen Dixon, in an extra judicial address, considered the functions of scientific or medical expert opinion.[59] After stating some of the rules governing the admissibility of expert scientific or medical evidence, Sir Owen Dixon said:[60]
From these rules, the true functions of a scientific or medical witness may be deduced. They are, I think, three in number. First, to supply the court with the abstract or general knowledge which is necessary to enable it to understand and use the considerations which should determine its opinion upon the scientific or medical matters involved in the issue before it. Second, to describe the material facts of medical or scientific significance, which the witness has observed himself. Third, to give his own inferences and opinions and the grounds on upon which they proceed.
[59] “Science and Judicial Proceedings” delivered at Melbourne on 30 September 1933 to the Medico-Legal Society of Melbourne published in O Dixon Jesting Pilate and Other Papers and Addresses The Law Book Company Limited 1965, page 11.
[60] Jesting Pilate and Other Papers and Addresses at page 18
For expert scientific or medical evidence to properly serve these functions, it is usually necessary that such evidence be adduced in a manner that discloses the expert’s reasoning, and the specialised knowledge he or she employs in that reasoning. Why that is so was explained by Sir Owen Dixon:[61]
[C]ourts cannot be expected to act upon opinions the basis of which is unexplained. However valuable intuitive judgment founded upon experience may be in diagnosis and treatment, it requires the justification of reasoned explanation when its conclusions are controverted. Reasoned explanation requires care and forethought . . .
[61] Jesting Pilate and Other Papers and Addresses at page 18
It was also explained by Lord President Cooper in Davie v Edinburgh Magistrates:[62]
Their [i.e., experts’] duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent upon the issue in controversy, will carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.
[62] 1953 SC 34 at page 40
It has been held that it is a condition of the admissibility of expert opinion evidence under s.76 of the Evidence Act 1995 (NSW) that:[63]
…the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded.
[63] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85] (Heydon JA)
The plurality in Dasreef Pty Ltd v Hawchar does not appear to have accepted that this principle (statement of reasoning principle) is a condition of admissibility of expert opinion evidence.[64] The plurality, however, said that:[65]
. . . it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that “the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded”.
[64] Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [37] (French CJ, Gummon, Hayne, Crennan, Kiefel and Bell JJ)
[65] Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [37]
I am not, of course, concerned with the admissibility of the opinions Dr Adams expressed, because the report containing his opinions has been admitted into evidence without objection, and he has been cross-examined. Nevertheless, the statement of reasoning principle, whether or not it is a condition of the admissibility of expert opinion evidence, is relevant to assessing the weight that should be given to an expert opinion. In most cases, if an expert gives evidence of an opinion without disclosing his or her reasoning and without, therefore, demonstrating by such disclosure that he or she has relied on specialised knowledge that falls within the expert’s field of expertise, a court will be unable to assess on what specialised knowledge the expert relied, whether that specialised knowledge is knowledge that is generally accepted by the relevant specialised knowledge community, and whether the opinion is in fact based on any specialised knowledge. As Sir Owen Dixon said, “courts cannot be expected to act upon opinions the basis of which is unexplained”; and, as Lord Cooper said, litigating parties invoke “the decision of a judicial tribunal” to settle their dispute, “not an oracular pronouncement by an expert”.
The plurality in Dasreef Pty Ltd v Hawchar said that the statement of reasoning principle can be met in many, and perhaps most cases very quickly and easily. That would be so in the case of a “specialist medical practitioner” where “expressing a diagnostic opinion in his or her relevant field of specialisation” would “require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered”.[66] That would rarely be the case, however, with psychiatric or psychological expert opinion evidence; and that is so for a number of reasons.
[66] Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [37]
The law of negligence recognises a distinction between, on the one hand, a “recognised psychiatric injury” or “recognised psychiatric illness”, and, on the other hand, various emotional states of mind not amounting to such injury or illness. The emotional states that do not amount to psychiatric illness or injury have been described as “distress, alarm, fear, anxiety, annoyance, or despondency”.[67] The distinction drawn in the law of negligence is premised on the view that the field of psychiatry itself distinguishes between emotional distress and other unpleasant emotions, on the one hand, and psychiatric illness or injury on the other. That premise was recognised by the New Zealand Court of Appeal in van Soest v Residual Health Management Unit & Ramstead:[68]
The English law commission saw it as a point of significance that psychiatry does draw a distinction between mere mental distress and psychiatric illness, even though the distinction is a matter of degree rather than kind and may change as medical knowledge advances . . . We would, like the law commission, use the expression “recognizable” rather than “recognized”. These expressions seem to mean the same thing, but “recognizable” perhaps will indicate an awareness by the Court that over time medical experts’ views about the nature of particular mental conditions are bound to be subject to some alteration, just as they are with respect to physical ailments.
[67] Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at [7] (Gleeson CJ); [193] (Gummow and Kirby JJ)
[68] van Soest v Residual Health Management Unit & Ramstead [1999] NZCA 206; [2000] 1 NZLR 179 at [65]-[66]
There are a number of implications that arise from this distinction between psychiatric injury or illness and emotional distress. First, an expert’s evidence on the presence or cause of a particular psychiatric illness or injury in a person (patient) must identify the psychiatric injury or illness. Second, in most cases, the expert should demonstrate that the psychiatric injury or illness from which the expert is of the opinion the patient suffers is one that is well recognised among the community of psychiatrists. In that regard, there is a “considerable degree of international agreement on the classification of mental disorders and their diagnostic criteria”;[69] and these are to be found in the Diagnostic and Statistical Manual of Mental Disorders, now in its fifth edition (DSM-5),[70] and in the International Statistical Classification of Diseases and Related Health Problems (ICD-10).[71] Third, the expert should identify the information and reasoning on which he or she has relied for concluding the patient suffers from the particular psychiatric injury or illness. This will usually require the expert to show that he or she has undertaken the inquiries a reasonably competent psychiatrist would undertake to determine whether the patient meets the diagnostic criteria for the psychiatric illness or injury from which the expert is of the opinion the patient suffers.
[69] Hatton v Sutherland [2002] 2 All ER 1 at [5] (Hale LJ)
[70] Fifth edition 2013. DSM-5 is published by the American Psychiatric Association
[71] 10th revision, World Health Organisation 1992
There are other reasons why, at least in many cases, it may be necessary for an expert who provides expert psychiatric opinion evidence to explicitly articulate his or her reasoning, and the specialised knowledge he or she employs in that reasoning in arriving at the opinions he or she expresses. First, although there may be considerable agreement about the classification of psychiatric disorders and their diagnostic criteria, these classifications may need to be applied cautiously in litigious contexts. That caution, for example, is explicitly stated in DSM-5 where it is noted that the DSM-5 diagnostic criteria “are primarily designed to assist clinicians in conducting clinical assessment” and, although when used appropriately the DSM-5 diagnoses and diagnostic information can assist legal decision-makers, “the use of DSM-5 should be informed by an awareness of the risks and limitations of its use in forensic settings”.[72] Given this caution, it may be expected that an expert will not assess whether a patient suffers from one or more accepted psychiatric disorders simply by ensuring the criteria identified in, for example, DSM-5, are satisfied; it may be expected that the expert will consider other matters, and in particular, his or her daily experience of real-life clinical practice.[73] If the expert does so, it should be set out in the evidence he or she gives.
[72] Diagnostic and Statistical Manual of Mental Disorders Fifth edition, page 25
[73] See D Gill “Proving and Disproving Psychiatric Injury” Medico-Legal Journal (2008) Vol. 76 Part 4, 143 at page 144
Second, the general agreement within the psychiatry and psychology community that may be implied from the existence of publications such as DSM-5 and ICD-10 mostly relates to a large but nevertheless confined subject matter – the classification of psychiatric disorders and the criteria that differentiate one disorder from another. It does not, in the main, extend to such matters as the cause of such disorders. That is explicitly stated in DSM-5:[74]
Nonclinical decision makers should also be cautioned that a diagnosis does not carry any necessary implications regarding the etiology or causes of the individual’s mental disorder or the individual’s degree of control over behaviors that may be associated with the disorder.
[74] Diagnostic and Statistical Manual of Mental Disorders Fifth edition, page 25
The significance of these limitations is that in many litigious contexts, whether or not a patient suffers from a psychiatric disorder or illness is not in issue or is not the only issue. What is in issue, or what may also be in issue, is the cause or causes of a particular psychiatric disorder, or whether the particular psychiatric disorder itself played any causal role in relation to some other matter that is in issue before the court. The need for an expert psychiatrist to set out in his or her evidence specialised knowledge on which he or she relies for his or her opinions on questions of causation is likely to be greater than the need to set out specialised knowledge relevant to the diagnosis of the psychiatric disorder. That is so because there is likely to be less agreement among the psychiatry and psychology community about questions of causation. That point was made by Hale LJ:[75]
While some of the major mental illnesses have a known or strongly suspected organic origin, this is not the case with many of the most common disorders. Their causes will often be complex and depend upon the interaction between the patient's personality and a number of factors in the patient's life. It is not easy to predict who will fall victim, how, why or when. For the same reason, treatment is often not straightforward or its outcome predictable: while some conditions may respond comparatively quickly and easily to appropriate medication others may only respond, if at all, to prolonged and complicated ‘talking treatments’ or behavioural therapy. There are strong divergences of views amongst psychiatrists on these issues.
[75] Hatton v Sutherland [2002] 2 All ER 1 at [5]
The opinions of Dr Adams – “major depressive disorder”
As I have already noted, Dr Adams is of the opinion that Ms Lavin suffers from “major depressive disorder”, “prominent anxiety”, and “comorbid posttraumatic stress disorder”. Dr Adams does not in his report explain what these diagnoses mean. In answer to my questions, however, Dr Adams said that “major depressive disorder” and “comorbid posttraumatic stress disorder” are recognised terms within the psychiatry profession and that, at least in Australia, the most common source for describing the meaning of these terms is what Dr Adams said was “the classification of disease known as the DSM-5”.[76] Dr Adams did not consult DSM-5 to check the relevant symptoms that make up each disorder and then determine the extent to which Ms Lavin’s symptoms matched the symptoms listed in DSM-5. Dr Adams noted, however, that the symptoms for major depressive disorder contained in DSM-5 “are very similar to the ones” that he outlined in his report.
[76] T41.15
DSM-5 does contain a psychiatric disorder that falls under the name of “major depressive disorder”.[77] The disorder consists of three sets of criteria. The first of these require five or more of nine specified symptoms that “have been present during the same 2-week period and represent a change from previous functioning”, and that at least one of the symptoms is either “depressed mood” or “loss of interest or pleasure”. The symptoms include depressed mood most of the day, nearly every day, “as indicated by either subjective report (e.g., feels sad, empty, hopeless) or observation made by others”, “markedly diminished interest or pleasure in all, or almost all, activities most of the day”, significant weight loss, “insomnia or hypersomnia nearly every day”, “psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feeling of restlessness or being slowed down)”, fatigue or loss of energy nearly every day, feelings of worthlessness or excessive or inappropriate guilt nearly every day, diminished ability to think or concentrate, or indecisiveness, nearly every day, either by subjective account or as observed by others, and recurrent thoughts of death, recurrent suicidal ideation without specific plan, or a suicide attempt or a specific plan for committing suicide.
[77] Diagnostic and Statistical Manual of Mental Disorders Fifth edition, pages 160-168
Assuming that all of the matters Ms Lavin reported to Dr Adams were true, there is no question it was reasonably open to Dr Adams to form the opinion that Ms Lavin has a major depressive disorder. An important feature of Dr Adams’ opinion, however, is that, with one exception, the matters on which Dr Adams relies for his opinion was information Ms Lavin provided to Dr Adams. The exception is Dr Adams’ observations of Ms Lavin during her consultation with him. Thus, to a very large extent, Dr Adams’ opinion that Ms Lavin suffers from a major depressive disorder relies on the credibility of Ms Lavin’s reports to Dr Adams. The weight that should be accorded to the opinions Dr Adams expresses, therefore, will depend on the extent to which Dr Adams has relied on incorrect information that Ms Lavin has provided to him, and on his not being aware of relevant information Ms Lavin failed to provide to Dr Adams. That follows, in part, from the following principle:[78]
Before the Court can assess the value of an opinion, it must know the facts on which it is based. If the opinion is based on irrelevant facts or facts that are clearly not going to be proved, the opinion is likely to be valueless.
[78] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70; (2007) 159 FCR 397 at [108] (Black CJ, Emmett and Middleton JJ)
The question is whether I should accept as true the matters Ms Lavin reported to Dr Adams. In my opinion, nothing Ms Lavin told Dr Adams about her present and past mental state should be accepted as true.[79]
[79] Because counsel for Ms Toppi and Mr Cunningham did not object the admissibility of Dr Adams’ report, the question of whether what Ms Lavin told Dr Adams was admissible to prove the truth of the matters she communicated to Dr Adams did not arise. There is a controversy about whether evidence given by a physician of what the patient had reported to him and her is admissible to prove the truth of the matters reported by the patient, and the controversy is considered in some detail in the reasons for judgment of Heydon J in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [77]-[89].
The principal matter which has moved me to this opinion is that, in the cross-claim Ms Lavin filed in the Enforcement Proceedings, Ms Lavin claimed that on 28 October 2008, when she executed the guarantee, she was “on prescription medicine being the drug “Zoloft” and was under the care of a psychologist”, whereas Ms Lavin told Dr Adams that her mental health began to deteriorate in 2010. This gives rise to a number of possibilities. One is that, contrary to what was alleged in the cross-claim, which Ms Lavin verified,[80] Ms Lavin was not, at the time she executed the guarantee, under the care of a psychologist, and she was not, at that time, on prescription medicine. If that is so, there arises the further possibility that Mr Lavin falsely alleged in the Enforcement Proceedings that she had a mental condition for the purpose of avoiding her legal liabilities. Another possibility is that Ms Lavin truthfully verified the allegation made in the cross-claim that, at the time she executed the guarantee, she was under the care of a psychologist, and that she was on prescription medicine. But if that is so, there arises the possibility that, in her consultation with Dr Adams, Ms Lavin falsely attributed the origins of her mental condition to Ms Toppi and Mr Cunningham. And yet another possibility is there is an innocent explanation, such as a mistake, that accounts for Ms Lavin having made apparently inconsistent claims about when she came under the care of a psychologist, and when she was prescribed medication.
[80] Exhibit A, page 30
I should not be understood as finding or as suggesting that Ms Lavin has acted dishonestly or improperly in her verifying the cross-claim, or in the information she provided to Dr Adams. What I find, however, is that, in the absence of an explanation that is consistent with Ms Lavin having acted honestly that accounts for Ms Lavin having made apparently inconsistent claims about when she came under the care of a psychologist and when she was prescribed medication, I am not prepared to accept as true anything Ms Lavin told Dr Adams about her current and past mental states, and the circumstances in which she came to be possessed by those mental states.
I also rely on Ms Lavin having misrepresented to Dr Adams that, unbeknown to Ms Lavin, Ms Toppi declared the Luxe business insolvent. In the absence of an explanation from Ms Lavin about why she made that misrepresentation to Dr Adams, there is the possibility that Ms Lavin deliberately misrepresented to Dr Adams her absence of knowledge of the proceedings Basecove brought to appoint a receiver. Again, I should not be understood as finding that Ms Lavin deliberately misrepresented to Dr Adams her state of knowledge of the proceedings Basecove brought. What I do find, however, is that, in the absence of evidence that supports an innocent explanation for Ms Lavin’s misrepresentation, I am not prepared to accept there is an explanation for the misrepresentation that is consistent with a mistake. That, in turn, is an additional reason for my not accepting as true anything Ms Lavin said to Dr Adams about her current and past mental states, and the circumstances in which she came to be possessed by those mental states.
Finally, I rely on Ms Lavin’s not having informed Dr Adams that she and DLM had commenced the 2011 Proceedings. In the absence of an explanation as to why Ms Lavin did not provide that information to Dr Adams, that omission gives rise to the possibility that Ms Lavin deliberately omitted to inform Dr Adams of that matter to bolster a misleading narrative that she was the victim of harassment by Ms Toppi and Mr Cunningham and, thus, to give credibility to her claimed fear of being cross-examined reflecting a psychiatric disorder. Again, I do not find Ms Lavin deliberately omitted to inform Dr Adams she had commenced proceedings against Ms Toppi in 2011. I do find, however, that in the absence of evidence that gives an explanation inconsistent with deliberate omission, I am not prepared to accept there is any such explanation for Ms Lavin’s omitting to inform Dr Adams that she had commenced the 2011 Proceedings.
I cannot, therefore, attach any weight to the opinion of Dr Adams that Ms Lavin suffers from major depressive disorder. That is so because Dr Adams’ opinion, to a large extent, is based on matters that turn on the credit of Ms Lavin’s reports, which I am not prepared to accept, of her present and past mental states, and of the circumstances in which she came to be possessed of those mental states.
The opinions of Dr Adams - “prominent anxiety”
Dr Adams does not explain the meaning of “prominent anxiety”. DSM-5, however, lists a number of anxiety disorders; none of these, however, go by the name of “prominent anxiety”. Whatever disorder Dr Adams intended to identify by “prominent anxiety”, I cannot give any weight to Dr Adams’ opinion. The only source of the symptoms on which Dr Adams bases his opinion is what Ms Lavin told Dr Adams, and her behaviour in his presence. For reasons I have already given, I am not prepared to accept as credible anything Ms Lavin told Dr Adams about her present and past mental states. For similar reasons, I am not prepared to accept that her behaviour in the presence of Dr Adams was sincere; that is, I am not prepared to accept that her behaviour during her consultation with Dr Adams was not motivated by a desire to obtain an opinion from Dr Adams substantially to the same effect as that given by Dr Rysenbry that she was unfit to undergo compulsory examination.
Again, I should not be understood to have found that Ms Lavin was insincere in the behaviour she manifested before Dr Adams. I simply find that, because Ms Lavin has given incorrect information to Dr Adams, and she failed to disclose to him what I consider to be relevant information, I am not prepared to accept Ms Lavin was sincere in the behaviour she manifested before Dr Adams.
The opinions of Dr Adams - “comorbid posttraumatic stress disorder”
Dr Adams does not in his report state what he means by “comorbid posttraumatic stress disorder”, but in answer to my question he said it reflects the meaning given to it in DSM-5. Assuming that what Ms Lavin told Dr Adams is true, it was reasonably open to Dr Adams to conclude Ms Lavin suffers from “posttraumatic stress disorder”. The difficulty with my accepting Dr Adams’ opinion, however, is that, for reasons I have already given, I am not prepared to accept the truth of what Ms Lavin told Dr Adams about her present and past mental states, or the circumstances in which she came to be possessed of those mental states, or that the behaviour she manifested to Dr Adams was sincere. Accordingly, I do accept Dr Adams’ opinion that Ms Lavin suffers from comorbid posttraumatic stress syndrome.
The opinions of Dr Adams – precipitation of significant deterioration in mental health
Given I do not accept Dr Adams’ opinions that Ms Lavin suffers from the psychiatric illnesses from which he is of the opinion Ms Lavin suffers, it follows I cannot accept his opinions about the consequences of Ms Lavin being exposed to cross-examination, or about the availability of adequate measures that could be put in place to improve Ms Lavin’s capacity to engage in cross-examination.
Conclusion on Dr Adams’ opinions
For these reasons, I do not accept Dr Adams’ opinions that Ms Lavin suffers from “major depressive disorder”, “prominent anxiety”, and “comorbid posttraumatic stress disorder”. Nor do I accept that, if Ms Lavin did suffer from these conditions, Ms Lavin’s being examined would lead to the deterioration of these conditions. Ms Lavin’s application to set aside the order for the issue of the examination summons on medical grounds, therefore, fails.
Abuse of process
Ms Lavin submits that Ms Toppi’s and Mr Cunningham’s seeking to enforce the order for an examination is an abuse of process. That claim was made at a time where there was on foot an application made by Ms Toppi and Mr Cunningham for vacant possession of the Property. At the hearing, however, counsel for Ms Toppi and Mr Cunningham indicated that Ms Toppi and Mr Cunningham will be withdrawing that application. Ms Lavin, however, submits that Ms Toppi’s and Mr Cunningham’s seeking to enforce the summons for examination is an abuse of process because it is intended to be a dress rehearsal of a cross-examination of Ms Lavin in proceedings that will be brought, presumably by the Trustee, to recover the Property.
Counsel for Ms Lavin referred to a number of authorities, most of which deal with s.569B of the Corporations Act 2001 (Cth) (Corps Act), being the equivalent provision to s.81 of the Act. It is not necessary to consider the principles identified in those cases other than to note that a summons for examination issued under s.569B of the Corps Act, and an order made under s.81 of the Act, are liable to be discharged if the dominant purpose in applying for the summons or order is to obtain a forensic advantage the person applying for the summons or order would otherwise have been unable to obtain had the relevant company not been wound up or the relevant person made bankrupt, and that such purpose will be established if the purpose of seeking the summons or order is to conduct a dress rehearsal for cross-examination.
The answer to this submission is there is no evidence that could arguably raise a claim of abuse of process. Counsel for Ms Lavin accepted that the fact that the person who has sought an order under s.81 of the Act did so in contemplation of commencing proceedings did not by itself constitute an abuse of process.[81] Counsel submitted, however, that because counsel for Ms Toppi and Mr Cunningham suggested that Ms Lavin had misled me in a previous an application before me on 4 June 2014, that indicates that this issue will be raised in the examination, and that that indicates an abuse of process.[82] I do not accept that submission. I am unable to understand how the possibility that Ms Lavin might in an examination under s.81 of the Act be asked questions about my having been misled can reasonably be seen as a dress rehearsal for cross-examination in any future proceedings.
[81] T78.35
[82] T79.10
Ms Lavin’s challenge to the order for the issue against her of the examination summons for examination based on abuse of process, therefore, fails.
Continuation of the Confidentiality Orders
The Court has power under s.88F(1) of the FCC Act to make a suppression order or non-publication order “on grounds permitted by this Part”. Those grounds are specified in s.88G of the FCC Act which provides as follows:
(1)The Federal Circuit Court of Australia may make a suppression order or non-publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c)the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2)A suppression order or non-publication order must specify the ground or grounds on which the order is made.
Section 88G of the FCC Act must be read with s.88E, which provides that, in deciding whether to make a suppression order or a non-publication order, the Court “must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”.
The ground on which the non-publication orders are sought is the confidentiality of the medical conditions Ms Lavin has communicated to her medical practitioners, and the opinions they have given of Ms Lavin’s mental state. Ms Lavin relies on an affidavit made by her solicitor, Ms Ross in support of this ground. In that affidavit, Ms Ross deposes to conversations with Ms Lavin in which Ms Lavin said that “this information is really private, I can’t have anyone knowing my private medical information and seeing my medical reports”, and that if Ms Toppi sees the medical information “it will get out, anonymously or not”.[83] I first consider whether this ground falls within s.88G(1)(a) of the FCC Act.
[83] Affidavit of R Ross, 23.11.2015, [10]
In Australian Competition and Consumer Commission v Air New Zealand Limited (No 3),[84] Perram J considered s.37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which is similar to s.88G(1)(a) of the FCC Act. His Honour said:[85]
[18] Important for present purposes is the wording of s 37AG(1)(a). It will be noted that the wording is essentially identical to the equivalent part of s 50 of the Federal Court of Australia Act, except that the word ‘proper’ now appears in front of the word ‘administration’.
[19] I do not think that the word ‘proper’ alters the meaning of the phrase, so that s 37AG(1)(a) reproduces a test with the same content as that which had formerly obtained in relation to s 50. That matters because the meaning and operation of those words have been comprehensively explained by the High Court in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at 664 [30]-[33] per curiam. Relevant matters to note about the wording in s 37AG(1)(a) are that, first, before the order is made, it must be ‘necessary’ and that ‘necessary’ is, as was explained in Hogan, a high standard. It is different to ‘convenient, reasonable or sensible’: Hogan at [31].
[20] Secondly, the propinquity of the wording in sub-s (a) to the wording in sub-s (b), with its references to ‘prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security’, shows that, as the High Court noted in Hogan at [30], citing the judgment of Bowen CJ in Australian Broadcasting Commission v Parish (1980) 43 FLR 129; [1980] FCA 33 at 133 (FLR), orders of this kind are not concerned with trivialities; that is, they are not lightly to be made.
[21] Thirdly, what is involved in assessing whether the order should be made is not a balancing exercise: Hogan at [31]-[32]. It is not a question, on the one hand, of seeking to serve, as best one can, the interests of open justice and, on the other hand, considering the prejudice which may occur if the information is released. The test to be applied is the posing of the question as to whether it is necessary to make the order to prevent prejudice to the proper administration of justice. No balancing exercise is required or permitted.
[84] [2012] FCA 1430
[85] [2012] FCA 1430 at [18]-[21]
Perram J also noted that it was “an accepted head, under what was formerly s 50 and what is now s 37AF” of the FCA Act that “commercial sensitivity can be a basis for making an order of the present kind”.[86]
[86] [2012] FCA 1430 at [35]
In considering whether, in the case before me, the making of a non-publication order is necessary for the proper administration of justice, there are two matters to note. First, the medical information relating to Ms Lavin is not the subject of any proceeding or contemplated proceeding. The publication per se of the information, therefore, will have no impact on any rights or asserted rights or liabilities of Ms Lavin. Second, I have not accepted Ms Lavin’s claim that she suffers from any of the psychiatric conditions of which Dr Adams is of the opinion she suffers.
The only other ground that I need to consider is that provided for by s.88G(1)(c) of the FCC Act. There is no evidence that Ms Lavin’s safety will be imperilled if the non-publication order Ms Lavin seeks is not made.
I can understand that the matters on which Ms Lavin relied for the orders she seeks, and the matters I have considered in these reasons for judgment, may cause Ms Lavin embarrassment if they are disclosed to the public. Embarrassment, however, is not a reason for making a non-publication order. Ms Lavin ought reasonably to have known at the time she made this application that that there is a strong public interest in open justice.
For these reasons, I propose to order that the Confidentiality Orders be discharged at 5.00 pm on the fourteenth day after the day on which I publish these reasons.
Conclusion and disposition
I am not satisfied the evidence establishes Ms Lavin suffers from the medical conditions from which she claims she suffers. Nor am I satisfied that Ms Toppi and Mr Cunningham’s intention to enforce the summons for examination that has been issued against Ms Lavin constitutes an abuse of process. It follows, therefore, that Ms Lavin’s application that the order for the issue against her of the examination summons must be dismissed. I am also not satisfied that an order should be made under s.88F of the FCC Act to continue the Confidentiality Orders.
I propose, therefore, to make the following orders:
a)The application in a case filed on 23 November 2015 will be dismissed.
b)The non-publication order made on 24 February 2016 will be discharged at 5.00 pm on 29 April 2016.
c)Up and until 5.00 pm on 29 April 2016 these reasons for judgment not be disclosed to any person other than to Ms Lavin and to the parties’ legal representative and my associates.
I also propose to order that Ms Lavin pay Ms Toppi’s and Mr Cunningham’s costs, subject to reserving liberty to the parties to apply within 14 days for a different costs order.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 15 April 2016
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