Van Eckeren v Legal Services Commission of South Australia & O'Neill - [2005] SADC 106

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
VAN ECKEREN v LEGAL SERVICES COMMISSION OF SOUTH AUSTRALIA & O'NEILL
Judgment of Her Honour Judge Kelly
18 August 2005
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - GOVERNMENT AND PUBLIC AUTHORITIES
Plaintiff claimed Legal Services Commission negligent in refusing her application for legal aid to conduct numerous medical negligence claims in Supreme and District Courts in 1992. Plaintiff further claimed Legal Services Commission had breached its statutory duties under the Legal Services Commission Act 1977. Claim for defamation against second defendant based on allegation that second defendant had told someone plaintiff was mad. Whether Legal Services Commission owed a duty of care to the plaintiff, whether Commission breached its statutory duty, whether Ms O'Neill told someone plaintiff was mad. Held, Legal Services Commission did not owe a duty of care to plaintiff. Plaintiff's allegations had no factual or legal basis - No evidence that second defendant said anything to anyone and no evidence that she had defamed the plaintiff. No proper basis to order damages - All plaintiff's claims dismissed.
Legal Services Commission Act 1977 s10, (1)(c), (2)(a), s 11, (d)(ii), (d)(iii), s29 (c),; Community Welfare Act 1972 (SA); Limitation of Actions Act 1936, referred to.
CLT v Connon 2000 77 SASR 449; X v The State of South Australia (No 2) [2005] SASC 150; Rogers v The Legal Services Commission of SA (1992) S3594; Rogers v The Legal Services Commission of SA (1996) D3468/96, applied.
Sullivan v Moody (2001) 207 CLR 562 @ p 579 - 580; Graham Barclay Oysters v Ryan (2001) 211 CLR 540 @ p 555; Pere v Apand Pty Ltd (1999) 198 CLR 180 @ p 194; Brodie v Singleton Shire Council (2001) 206 CLR 512 @ p 559; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, considered.

VAN ECKEREN v LEGAL SERVICES COMMISSION OF SOUTH AUSTRALIA & O'NEILL
[2005] SADC 106
Introduction:

In 1986 and 1987 Margaret Van Eckeren (“the Plaintiff”) initiated numerous proceedings in the Supreme and District Courts in Adelaide, alleging medical negligence against at least 10 medical practitioners and alleging negligence against the Australian Telecommunications Commission.
On 5 October 1990 she made an application for legal aid to the Legal Services Commission of South Australia (“first Defendant”) in respect of the prosecution of all of these actions. Thereafter began a saga, which came to an end when the first defendant after granting limited aid on a number of occasions between 1990 and 1992 for specific purposes finally rejected the plaintiff’s application for continuing aid on 12 March 1992.
Later that year, the plaintiff’s actions against some of the medical practitioners proceeded to trial before Justice Perry in the Supreme Court. The plaintiff was unrepresented. Apart from one action, in which the defendant admitted liability and the plaintiff was awarded the sum of $6,100 by way of damages, all other actions were dismissed with costs against the plaintiff. That included the trial in the District Court alleging negligence against the Australian Telecommunications Commission in respect of which Judge Lunn delivered judgment on 7 August 1992.
In 1993 the five remaining medical negligence claims proceeded to trial before Justice Debelle. The plaintiff was again unrepresented and again each of the claims was dismissed with costs awarded against the plaintiff.
In this trial, the plaintiff told me that she has not prosecuted any Appeals in respect of those actions due to a lack of funds and the refusal of legal aid from the first defendant.
These proceedings were issued by summons and statement of claim on 25 January 2001. In the statement of claim, the plaintiff pleaded that she issued the various claims referred to above in the Supreme and District Courts. She engaged a private practitioner, subsequently applied for legal assistance and was granted limited legal aid by the first defendant. Subsequently in March 1991 her practitioner ceased to act for her and thereafter the first defendant obtained various legal opinions in relation to her multitude of actions.
In the statement of claim the plaintiff asserts that there were a number of problems with regard to the engagement of legal practitioners and counsel to advise in relation to her claims. She also asserts that on 21 February 1992, the first defendant terminated legal aid, due allegedly to the plaintiff refusing to follow advice of counsel and to provide proper instructions. The plaintiff denied failing to follow any advice or to provide proper instructions and pleaded that in terminating legal aid the first defendant had acted in breach of its duty of care to her, acted negligently, wilfully misused its powers and demonstrated unconscionable conduct. In the alternative, she pleaded that it had breached its statutory duties to the plaintiff.
The plaintiff pleaded that she had to continue in the trial unrepresented, and that, as a result of the termination of legal aid by the first defendant she suffered loss, injury and damage.
A further claim for defamation is made against an employee of the first defendant, Ms O’Neill (“the second Defendant”). The plaintiff pleaded that she had also suffered loss, injury and damage as a result of that alleged defamation by the second defendant.
That is a brief summary of the main features of the plaintiff’s claims against the first and second defendants.
The summons and statement of claim were issued out of time, however the plaintiff has applied for an extension of time to institute the otherwise statute barred claim.
Given the unusual history of this matter, the defendants, made a concession in relation to the plaintiff’s application for extension of time and conceded that in all of the circumstances the plaintiff should be granted an extension of time in which to bring this action.
For that reason I will deal first with the substantive issues raised at the trial. Before I do so, I want to say something about the way in which the case was presented and the nature of the evidence before me.
The plaintiff appeared in person at the trial and, although the solicitor on the record at the time of the filing of the summons and statement of claim was present in Court throughout the hearing, the plaintiff presented her own case.
By consent, a voluminous amount of material was tendered by the plaintiff in support of her case. Much of this documentary material is contained in the folders and booklets which are marked (exhibit P1, P6 and P15).
For its part, the first defendant tendered what appears to be the entire retrievable content of the first defendant’s file in relation to the history of the plaintiff’s dealings with the first defendant. Those documents are (exhibits D2 and D3). As a result, I had a fairly complete documentary history of the progress of the plaintiff’s application for aid, from the date of her first application on 5 October 1990, continuing through until the end of 1996. This period includes the years after the rejection of aid and covers the plaintiff’s ongoing contact, direct and indirect, with the first defendant as a result of the refusal of that aid.
The totality of the documentary exhibits tendered by the plaintiff in (exhibits P1, P6 and P15) and the defendants in (exhibits D2 and D3) shows a largely uncontested chronology of events. For that reason it is convenient to set out the chronology of events relevant to both the plaintiff’s and the defendants’ cases.
Chronology:
An application for legal aid dated 5 October 1990 (exhibit P1.1) was lodged in the first defendant’s office in conjunction with a letter dated 10October 1990 from the plaintiff’s then solicitor Mr Peter Russell of Russell & Russell solicitors (exhibit P1.2).
In the accompanying letter Mr Russell pointed out to the first defendant that, in his view, the claims would have to proceed to trial because of their complex nature. Mr Russell stated that due to the extreme difficulty of the matters and the fact that he would have to obtain interstate and perhaps overseas medical opinions, the allocation, if the first defendant so deemed to provide one, would have to be “fairly significant”. In that same letter, the plaintiff’s then solicitor pointed out that the plaintiff had been financing these actions herself, until moneys which she had invested in a Victorian Building Society were lost due to a collapse of that Building Society, shortly before the application for legal aid was made.
Significantly, also in that letter the plaintiff’s then solicitor pointed out to the first defendant that the claims were then at a very advanced stage and it was likely that the matters would be listed for trial in June the following year, that is June 1991. This historical fact has some relevance to one of the plaintiff’s contentions that the decision by the first defendant to terminate legal aid at such a late stage in proceedings, effectively prevented her from presenting a proper case at her trial.
On 16 October 1990, an officer of the first defendant wrote to Mr Russell requesting, amongst other things, documentation and any counsel’s opinion as to merit and quantum in respect of the claims. (exhibit P1.4)
On 25 October 1990 Mr Russell responded to the first defendant’s enquiry and advised that in his view the plaintiff had a good chance of succeeding in some of her matters but it was very difficult to say that she would succeed in all of them. He also pointed out that he did not have enough medical evidence concerning her condition, because doctors were extremely reluctant to get involved with her. Finally, he told the first defendant that he had 3 filing cabinet drawers filled with paper work on the plaintiff’s case and at that stage, as far as he was aware, there was no counsel’s opinion as to the plaintiff’s claim because he was still labouring through the medical evidence (exhibit P1.5).
On 30 October 1990, in reply to Mr Russell, an officer of the first defendant requested Mr Russell to provide the first defendant with the pleadings, relevant statements and any medical reports or letters referable to the claims (exhibit D3 p69).
Apart from some correspondence and attendances to do with the plaintiff’s financial situation, the next relevant correspondence in relation to Mr Russell was on 2 January 1991, when Mr Russell wrote to Mr Haskett, the Deputy Director of the first defendant and invited him, in effect, because of the complexity of the case, to come down to his office at Seaton and go through the filing cabinets. Mr Russell explained that the reason he extended that invitation to the first defendant was due to the voluminous amount of medical papers and documentation that the plaintiff had collated to support her claims. Mr Russell considered it too complex to respond to the first defendant as requested (exhibit p1.7).
It is obvious from a letter written by the first defendant to the plaintiff directly, on 21 December 1990 (exhibit P1.6), that at that stage the first defendant was having difficulty in trying to assess the plaintiff’s application for legal aid in the light of Mr Russell’s apparent inability to respond to their letters, requesting pleadings, statements, medical reports and a counsel’s opinion.
At that stage, the first defendant advised the plaintiff that the application would be held in abeyance pending receipt of appropriate communication from Mr Russell. It appears to be as a result of that communication to the plaintiff that Mr Russell wrote the letter on 2 January 1991 (exhibit P1.7).
It appears from an internal minute from Mr Peter Haskett, the Deputy Director, to Mr Adrian Hunt, manager of the assignments section dated 7 January 1991 (exhibit P1.9) that the first defendant had some concerns about the matter. In that minute Mr Haskett noted his concern that given the history of the matter, the amount that had already been expended in legal fees by the plaintiff and the number of previous solicitors involved that it was surprising there was not some documentation available as requested by the first defendant. He indicated in that minute that he did not think it appropriate for an officer of the first defendant to go to a solicitor’s office and inspect the filing cabinets.
Not surprisingly on 9 January 1991 Mr Hunt, as the first defendant’s manager of the assignments section, wrote a further letter to Mr Peter Russell querying whether it was possible, without too much culling, to forward the pleadings, the statements from the plaintiff and a sample of the most favourable and succinct medical evidence (exhibit P1.10).
Thereafter, further correspondence ensued between Mr Russell and the first defendant, in which Mr Russell forwarded a brief to counsel. The first defendant wrote back and requested the opinion of Queen’s Counsel on liability and quantum which was apparently referred to in that brief. That brief, the first defendant noted, was prepared by Mahony & Partners, a firm of solicitors previously engaged by the plaintiff.
An opinion of Mr D.J. Bleby QC, dated 17 March 1987, was forwarded to the first defendant in response to that request on 31 January 1991 (exhibit P1.13).
On 5 February 1991, the first defendant wrote to Mr Russell (exhibit P1.14) with a further request for information based on the information which had already been provided, including Mr Bleby QC’s opinion. The first defendant noted in that letter that, on the face of Mr Bleby QC’s advice, there were a number of matters in which he was simply unable to form a view as to the merits of the action, pending the receipt of further medical reports. The first defendant expressed its concern, given the contents of Mr Bleby QC’s opinion, that there would be substantial costs involved in the actions but there was still no indication as to what the quantum of damages was likely to be.
A further letter from Mr Russell to the first defendant on 15 February 1991 (exhibit P1.15), provided some of the information requested and indicated that Mr Russell intended to obtain a further opinion as to quantum in all actions. The first defendant then determined to make a limited grant of legal aid in order to obtain a supplementary opinion from senior counsel.
The terms of that grant are contained in the letter dated 25 February 1991, from the first defendant to the plaintiff (exhibit D3 p575). In that letter a copy of the conditions of aid was also enclosed (exhibit P1.16).
On 26 February 1991 a similar notification (exhibits P1.17 and D3 p573) was forwarded to Mr Russell advising that aid was granted to obtain an up-to-date supplementary opinion from Ms Catherine Branson QC, as to the prospects of success and possible quantum in all current actions. Upon receipt of this opinion the first defendant would decide whether to extend the assignment of aid or not. The enclosed commitment of the same date was to the extent of 80% of the sum of $1,000 (exhibit P1.17).
After that grant of limited aid, things as far as the plaintiff was concerned, went awry. From the correspondence and diary notes contained within the first defendants file (exhibits D2 and D3),it is evident that a brief was forwarded to Ms Branson QC after discussions with Mr Russell. Ms Branson QC was requested to advise as Mr Bleby QC was no longer available at that date.
On 27 February 1991, the plaintiff complained directly to an officer of the first defendant that her private papers had been wrongfully forwarded to Ms Branson QC by the first defendant contrary to her wishes. It is not in dispute that the plaintiff attempted to retrieve that brief herself, but the first defendant itself retrieved the brief, which was held pending further decision as to the future conduct of the matter.
The plaintiff then appealed the terms of the grant of aid on 25 February 1991, on the basis that she believed she should have been given legal aid unconditionally and outright.
As a result of that appeal by the plaintiff in the course of the telephone conversation and face to face meetings with officers of the first defendant, the first defendant met at a special meeting on Monday 4 March 1991 and rejected the plaintiff’s appeal. The first defendant maintained its view that a supplementary opinion should be obtained in relation to all the claims before the first defendant was able to consider the application for legal aid.
Meanwhile no doubt instructed by the plaintiff, Mr Russell wrote to the first defendant on 28 February 1991 (exhibit P1.19), requesting the return of the material and counsel’s opinion that previously had been forwarded to the first defendant.
In the light of the plaintiff’s contentions in this trial, it is relevant to simply note at this stage that the opinion of Mr Bleby QC was tendered as part of the defendant’s file (exhibit D3 p605). The opinion in its terms called for further investigation without which, in the author’s opinion, it would be impossible to make any assessment either as to liability or quantum.
Notwithstanding the notification to the plaintiff and to her solicitors of the first defendant’s rejection of the plaintiff’s appeal, a further letter was forwarded by the plaintiff in her own hand writing to the Appeals Committee of the first defendant dated 1 March 1991 (exhibit D3 p543).
Between February and May of 1991 there are numerous notes of telephone conversations between various officers of the first defendant’s staff and the plaintiff and various other solicitors and counsel involved with the matter at that time, including Ms Branson QC who returned the brief to the first defendant on 28 February 1991 after learning of the plaintiff’s objections when the plaintiff arrived unannounced in Ms Branson’s reception area.
The plaintiff was informed in a letter, forwarded to her advising of the rejection of her appeal, that the first defendant would not and could not consider her application further unless and until a supplementary opinion was obtained (exhibit D3 p552).
At this stage there appears in the first defendant’s file, notes and correspondence concerning contact from various politicians’ offices in relation to the plaintiff’s concerns about the status of her legal aid application.
Included in the correspondence at that time is a letter from Mr Russell to the plaintiff dated 1 March 1991 (exhibit D3 p557), in which Mr Russell complained to his client of “your outrageous behaviour” at the first defendant’s premises. Whatever the truth that lay behind that letter, it was not long before Mr Russell ceased to act for the plaintiff. A note of 9 May 1991 (exhibit D3 p539) made by Mrs Harper an officer of the first defendant, records receiving advice to that effect from Mr Russell himself on that date.
On 7 May 1991, the plaintiff wrote to the first defendant (exhibits P1.26 and D3 p540) withdrawing her objection to the first defendant’s proposal that an opinion from Ms Branson QC be obtained.
Thereafter, Mrs Harper, from the first defendant’s office, wrote to the plaintiff in the terms of the letter dated 10 May 1991 (exhibit D3 p538), requesting the necessary papers back from the plaintiff in order that they could brief Ms Branson QC.
It would appear from the file notes of May 1991, within the first defendant’s file, (and confirmed by Mrs Harper in her oral evidence) that Mrs Harper and others made many efforts to brief various counsel found to be unsuitable for one reason or another and agreement was finally reached between the plaintiff and the first defendant that Mr Gregory Holland would be briefed (exhibit P1.29). It was also during this time that the plaintiff went to the executive assistant to the Attorney-General, Mr Duigan who wrote to the plaintiff in the terms of the letter of 19 June 1991 (exhibits P1.28 and D3 p519). The terms of that letter, in which Mr Duigan advised the plaintiff that he was unable to assist her any further, is also one of the subjects of the plaintiff’s complaints in this trial and further references will be made to it.

It also appears from diary notes made by various officers of the first defendant in attendances upon the plaintiff during that time and from oral evidence from the plaintiff, that she was having difficulty instructing other solicitors during this period of time. On 24 July 1991 the first defendant approved a further grant of aid to the plaintiff to obtain an opinion from Mr Holland, as to the prospects of success, and possible quantum, in all of the plaintiff’s actions. A letter was sent to Mr Holland in those terms (exhibits P1.30 and D3 p509). Accompanying that assignment was a further schedule granting aid to the extent of $1,200 to Mr Holland (exhibit D3 p510).
On 28 October 1991 Mr Holland’s opinion was obtained. In the letter accompanying his advice (exhibit P1.31) Mr Holland pointed out that the prospects of success were reasonable but he did not have all the relevant documents and was concerned there was quite a bit of work that needed to be done to get the matter ready for trial.
On 31 October 1991, the first defendant wrote to the plaintiff (exhibit P1.33) advising that arrangements had been made to appoint Messrs White Berman & Co as solicitors for the plaintiff. In her oral evidence to this Court, Mrs Harper recalled endeavouring to find a number of solicitors acceptable to the plaintiff in that period between May and October of 1991, all to no avail as there was some problem or other in the plaintiff’s mind with all of the solicitors that Mrs Harper suggested.
In the letter to the plaintiff of 31 October 1991 (exhibit P1.33), Mrs Harper pointed out to the plaintiff that if she was not prepared to consult Mr White she would consider whether legal aid should be terminated.
Notwithstanding that letter, Mrs Harper must have agreed to transfer the assignment to Mr Linden Fairclough, at least in relation to the claim against the Australian Telecommunications Commission, because on 6 November 1991 a formal approval was sent to Mr Fairclough in terms of the letter marked (exhibits P1.35 and D3 p476 & 481). A letter was forwarded to the plaintiff on the same date (exhibit P1.37) and in the same terms. On this occasion the schedule of fees forwarded with the approval to Mr Fairclough was expressed to be in the sum of $1,920 (exhibit D3 p481). The terms of this approval of aid has also been the subject of much debate and dispute in this trial and further reference will be made to it.
On 20 November 1991, the plaintiff signed an authorisation directed to Mr Hartnett, the Director of the first defendant, authorising him to transfer the Telecom claim from Linden Fairclough to Pearce & Co, a new set of solicitors. That authorisation was enclosed in a letter from Messrs Pearce & Co to the Director on 20 November 1991 (exhibits P1.40 and D3, p472 & 473).
Apparently the first defendant at that stage was unwilling to reassign to yet another solicitor and, accordingly, letters were sent to the plaintiff and to Messrs Pearce & Co, both being dated 26 November 1991 (exhibits P1.39 & P1.41 respectively).
Notwithstanding that advice, it would appear that Mr Pearce took it on himself to represent the plaintiff at a directions hearing before Justice Debelle in the Supreme Court on 16 December 1991, as a letter appears (exhibit P1.42) advising her to that effect.
On 6 January 1992 the first defendant granted aid to Mr Pearce in terms of the letter and attached schedule (exhibit P1.47). Once again the terms of this grant were the subject of much dispute at the trial and will be referred to later.
On 23 December 1991, the plaintiff’s then solicitor Mr Fairclough, wrote to the first defendant (exhibit P1.44) advising the first defendant that the plaintiff had requested that a Mr Peter Spruance be assigned as counsel. He also wrote that the plaintiff, in his view, had refused to take his advice that she undergo a psychiatric examination in order for a psychiatric report to be obtained.
There is some evidence of that refusal to be found in signed instructions from the plaintiff to Mr Fairclough of 5 November 1991 (exhibit D2 p348), in which the plaintiff confirms that she has been advised of the need for a psychiatric report and is not prepared to undergo any psychiatric examination.
On 17 January 1992, Mr Holland wrote to the first defendant (exhibit D2 p329) further advising in relation to all matters and advising that in his view none of the actions should be proceeding in the Supreme Court. On 22January 1992, the plaintiff terminated her instructions to Linden Fairclough (exhibit D2 p328).
This was in spite of a letter from the first defendant (exhibit D2 p331) which had been forwarded to her on 30December 1991 by Mrs Harper, advising her that at that stage the first defendant was not prepared to incur further expenses by briefing Mr Spruance as counsel and was concerned that the plaintiff was not accepting Mr Fairclough’s advice.
On 23 January 1992, Mr Fairclough wrote again to the first defendant (exhibit P1.51) noting that the plaintiff had telephoned him requesting that the file be reassigned to Messrs Pearce & Co and further, that the matter was becoming quite ridiculous as it appeared to Mr Fairclough that the plaintiff was simply refusing to accept advice.
Subsequent to that letter, Mrs Harper from the first defendant confirmed with Mr Pearce that the first defendant was not prepared to assign legal aid for the Telecom matter to him but that the medical negligence claims were assigned to him (see letter dated 23 January 1992 exhibit D2 p323).
The first defendant maintained its attitude, notwithstanding the plaintiff’s complaints to the Attorney-General’s Department and on 29 January 1992 Mrs Harper sent a further letter to the plaintiff confirming the first defendant’s attitude (exhibit D2 p307).
Thereupon the plaintiff complained to the Attorney-General’s secretary that she had been discriminated against and alleged that there was corruption within the first defendant’s office. This complaint caused the secretary to the Attorney-General to write to the Director, Mr Hartnett on 29 January 1992 (exhibit D2 p305).
On 31 January 1992, Linden Fairclough wrote to the first defendant (exhibit D2 p302) and advised that he had attended a pre-trial conference on 28 January 1992, reiterating the need to have the plaintiff psychiatrically examined and advising that, in the opinion of Mr Fairclough and based on Mr Holland’s opinion, the plaintiff was unlikely to attract an award for damages beyond the figures mentioned in Mr Holland’s advice and certainly not within the region of $80,000 which is the figure the plaintiff maintains she was entitled to at that stage.
On 4 February 1992, the first defendant sent a copy of Mr Holland’s opinion to Mr Pearce (exhibit P1.57) and advised that they would await Mr Pearce’s communication as to the next step to be done.
On 11 February 1992, the first defendant sent a further letter to the plaintiff and copies to Mr Pearce and Mr Fairclough (exhibit P1.61) in which Mrs Harper reaffirmed that the matters assigned to Mr Pearce and Mr Fairclough would not be reassigned to any other solicitors by the first defendant, that the plaintiff was to provide proper instructions to, and to accept the legal advice of, the assigned solicitors. She was advised that if she was unable to comply, that the first defendant may be obliged to immediately terminate the grant of legal aid (exhibit P1.61).
On 14 February 1992, there was a directions hearing before Justice Debelle in the Supreme Court in relation to the medical negligence matters. On that occasion Mr Holland appeared for the plaintiff. On the very same date Mr Holland wrote to the first defendant and reported what had occurred at the hearing, (exhibit P1.64). In essence, Mr Holland told the first defendant in that letter that it was not his wish to act for someone who had no confidence in him and that he was not prepared to act any further in the matter. To some extent the contents of Mr Holland’s letter speaks for itself but it was the subject of evidence by Mr Holland and the plaintiff and further reference will be made to the events of 14 February 1992.
As a response to Mr Holland’s request in the letter of 14 February 1992, (exhibit P1.64) the first defendant wrote one further letter to Mr Holland dated 17 February 1992, (exhibit D2 p266) specifically for the purpose of clarifying before Justice Debelle the terms on which aid had been granted to Mr Holland and in particular that aid had been granted on only a limited basis and not for the trial (exhibit D2 p266).
The communications between the first defendant and Mr Holland can be better understood in light of the transcript of proceedings before Justice Debelle on 14 February 1992, which are also tendered as both part of the plaintiff’s and the defendants case and can be found in (exhibits P1.65 and D2 p270 – 289). A reading of that transcript shows there was some confusion in the judge’s mind about whether legal aid had been granted for the forthcoming trials or not.
On 18 February 1992, Mr Fairclough wrote again to the first defendant (exhibit D2 p264) that he had met with the plaintiff but she was still refusing to accept his advice and that she had accused the writer and the first defendant of conspiring against her interests and engaging in conduct which was not in her best interests. He advised further that she still refused to accept the advice of Mr Holland and Mr Fairclough and, that her claim would have difficulty attracting an award in the region of $80,000 as she currently maintained.
On 21 February 1992, matters came to a head when the plaintiff was advised by the first defendant that any further extension of aid was refused. The advice to the plaintiff on 21 February 1992 (exhibits P1.73, D2, p256) purported to terminate aid on the basis that the plaintiff “has consistently refused to accept the proper advice of appointed counsel and to provide proper instructions”.
An appeal was lodged by Mr Pearce on behalf of the plaintiff on 27 February 1992 (exhibits P1.77, D2, p241 - 243). The grounds of appeal lodged on behalf of the plaintiff included a reference to a psychiatric report by Dr June Donsworth dated 7 June 1988 (exhibit D2, p367 – 373), in which specific reference is made to the plaintiff as suffering from a paranoid personality disorder of some years standing. Mr Pearce claimed in that letter that the public interest in conserving limited public funds was outweighed by the public interest in bringing “this extraordinary matter to an end”. Mr Pearce sent one further letter to the first defendant in support of the plaintiff’s appeal in which he told the Director Mr Hartnett that the plaintiff had seen another psychiatrist, Dr Couper-Smartt, and all psychiatrists agreed that the plaintiff suffers from a severe paranoid personality disorder (exhibit P1.82).
On 3 March 1992, Mrs Harper prepared a memorandum for the Commissioners in the hearing of the appeal. That document is to be found in (exhibit D2 p233). In it, Mrs Harper detailed for the benefit of the Commissioners the chronology of events from the point of view of the officers of the first defendant who had been assigned to deal with the plaintiff.
On 12 March 1992, the first defendant considered the plaintiff’s appeal and once again confirmed the refusal to extend further aid. Letters were sent to the plaintiff and her solicitors, Mr Pearce and Mr Fairclough on 16 March 1992 confirming this refusal (exhibit P1.85, 86 and 87).
In the meantime there was a further chamber hearing on 3 March 1992 before Justice Debelle in relation to the medical negligence matters. At that stage the plaintiff was represented by Mr Christopher Cocks who, according to the plaintiff’s evidence in this trial, seemed to appear out of nowhere. The transcript of that chamber hearing is (exhibit P1.83). On 13 March 1992 and again on 17 March 1992, there were further directions hearings before Justice Debelle, (exhibit P1.84) at which stage Mr Pearce indicated to His Honour that his situation had become unworkable and he was no longer able to act for the plaintiff. In oral evidence before me, Mr Pearce was questioned about his ceasing to act for the plaintiff by the plaintiff herself and it will be necessary to refer to his evidence on that topic again.
In June 1992, the plaintiff’s claim against the Australian Telecommunications Commission proceeded to trial in the District Court before Judge Lunn. The plaintiff represented herself. Judgment was delivered in that matter on 7 August 1992, with the plaintiff’s claim being dismissed with costs.
Thereafter the plaintiff made many and varied attempts to contact politicians, community interest groups and other people in an endeavour to enlist support for her grievances in relation to the first plaintiff’s refusal to extend aid any further.
Indeed, one of the plaintiff’s exhibits (exhibit P6) is a booklet which was tendered by consent of the defendants on the basis that the contents represent a history of the plaintiff’s attempts to obtain support from various persons for her cause.
It would seem that it was in the course of preparing a document for submission to the Commissioner for Equal Opportunity that the plaintiff went to the home of a woman named Gwen Sutcliffe. To the plaintiff’s best recollection this visit occurred some time in 1994. It was on that occasion that she and her friend Mrs Susan Heywood spoke of a conversation with Mrs Sutcliffe who allegedly told the plaintiff in the presence of Mrs Heywood that Deborah McCulloch from the Women’s Electoral Lobby had told her (Mrs Sutcliffe) that an unnamed officer from the office of the first defendant had described the plaintiff as “mad”.
It is this allegation which gives rise to the plaintiff’s claim against the second defendant, one Katherine O’Neill. Ms O’Neill was an employee of the first defendant from late 1993 until 1999.
It is evident from the foregoing that many of the events which occurred after the date of the plaintiff’s application for aid in October 1990 have been documented either by the various solicitors acting for her, by the plaintiff or by the first named defendant. It is perhaps for that reason that many of the external events about which the plaintiff has complained are not substantially in dispute, although the interpretation of some of those events and some of those documents has been very much in issue at the trial.
Findings of fact in relation to the historical events which occurred will go some way to clarifying the legal issues which arise for consideration. I turn now to the evidence.
The Evidence at Trial:
The plaintiff gave evidence which extended over several days, due in part to the interposing of various witnesses by both the plaintiff and the defendants’ counsel.
Much of the plaintiff’s evidence was directed to events which have no relevance to any of the issues which arise on the plaintiff’s pleadings. In so far as her evidence did bear on the complaints articulated in the statement of claim, it consisted in large part of the plaintiff explaining her interpretation of the meaning of the various letters and documents referred to in the preceding chronology.
The plaintiff demonstrated a tendency to repeat points more than once and repeatedly returned to the matters which she identified as her main grievances with the first defendant.
She made the following allegations:-
·The first defendant’s harassment and unjustifiable demands on her former lawyer Mr Russell;
·The first defendant’s breach of confidentiality in relation to the obtaining of Ms Branson QC’s opinion;
·Ms O’Neill’s conflict of interest in dealing with her case when she had previously worked for Finlaysons a firm of solicitors who in the plaintiff’s opinion had acted for some of the hospitals who she was going to sue;
·The generally inhumane treatment of her by the first defendant, including sex discrimination in respect of which she referred to Ms Edith Pringle’s comments to her that Mrs Harper, an officer of the first defendant who dealt with the plaintiff, never took women’s medical negligence cases seriously; and
·The wrongful decision of the first defendant to terminate her aid on the basis that she would not accept Mr Holland or Mr Fairclough’s advice when in her view neither complaint was justified.
The plaintiff’s interpretation of the events which unfolded between 5 October 1990 and 12 March 1992 when aid was finally terminated, differed in many respects from the recollections of the officers from the first defendant (Hartnett, Harper, Hunt) and the lawyers who had previously acted for her (Fairclough, Pearce, Holland).
The plaintiff agreed that, in relation to her medical negligence claims, she had previously instructed other solicitors before Peter Russell began to act for her in 1988. The previous solicitors she had instructed were Mahony & Partners, with whom apparently there was some conflict and they could not continue to act. The plaintiff conceded that she had begun to feel uncomfortable with Ms Victoria Gailit her solicitor; Messrs Andersons whose instructions she terminated for reasons which she did not go into; Mr Guy Harley whose instructions the plaintiff terminated because she felt uncomfortable with him because he came from a family of doctors, and then Mr Russell.
According to the plaintiff, the first defendant was very slack in co-operating with her lawyer Mr Russell. They bombarded him with one letter after another requesting excessive documents and material. When he offered to allow them to inspect his files at his office they refused to go down there and look at them and finally, after limited aid was granted to Mr Russell to obtain a supplementary opinion, he told the plaintiff he would not act for her for that amount of money.
Mr Russell was not called as a witness by either party, however there is correspondence from Mr Russell both to his client and to the first defendant in the various exhibits tendered before me (exhibits P1, D2 and D3).
Notwithstanding the existence of that correspondence and the plaintiff’s own letter to the first defendant Appeals Committee on 21 March 1991 in which she told the first defendant that her lawyer had not applied himself in a professional way to her matters, the plaintiff denied that she had had a falling out with Mr Russell or that he had ceased to act for her for any other reason than that he was not prepared to continue to act for her for the amount of money which the first defendant had approved on 26 February 1991.
Furthermore, the plaintiff claimed in relation to the refusal by her to sign an authority from Ms Branson QC to advise on her case that the only reason she had refused to sign that authority was because the first defendant breached confidentiality by sending the material to Ms Branson QC without waiting for the plaintiff’s authority. This was despite the fact that she was aware that her solicitor intended to obtain an opinion from counsel upon receipt of limited legal aid for that purpose and that he was encouraging her, as is evident from the correspondence, to seek the advice of Ms Branson QC. According to the plaintiff, one of the reasons that she refused to sign the authority to release the file to Ms Branson QC, apart from the breach of confidentiality about which she was upset, was because she thought she was doing Mr Russell a favour in him not having to photocopy all the material and send it to Ms Branson QC.
The record shows unequivocally that Mr Russell ceased to act for the plaintiff at about this time. This is evidenced by the letter from Mr Russell to the plaintiff (letter dated 1 march 1991, exhibit D3 p557), the first defendant’s diary note of 9 May 1991 (exhibit D3 p539) and the letter from Mrs Harper to the plaintiff consequent on the telephone attendance of 9 May 1991 (exhibit D3, p538).

Notwithstanding the fact that Mr Russell was not called in these proceedings, on the basis of the correspondence and notes to be found in exhibits P1, D2 and D3 referred to previously, I do not accept the assertion by the plaintiff that she parted with her former solicitor Mr Russell on good terms. This is particularly so given the timing of Mr Russell’s ceasing to act in relation to the plaintiff’s refusal to allow Ms Branson QC to have the necessary material in order to provide a supplementary opinion.
The plaintiff did agree that if the first defendant had, as she put it, “done it in the normal way”, meaning, I suppose, that they had sought her authority before sending the material to Ms Branson QC. then she would not have objected.
The decision of Mr Russell, whatever the reason, to cease acting for the plaintiff caused a problem for all concerned and it appears both from the plaintiff’s evidence and from Mrs Harper’s testimony that during the months between April 1991 and October 1991 the first defendant spent some time endeavouring to assist the plaintiff to find another solicitor and barrister acceptable to her.
It appears that Mr Simon White was prepared to act for her by October 1991, but this was unacceptable to the plaintiff and she requested the assignment to Mr Linden Fairclough. There is no doubt that the first defendant must have agreed to this assignment because that is precisely what happened on 6 November 1991 (exhibit D3 p476).
In the meantime a counsel had finally been found acceptable to the plaintiff to provide the supplementary opinion. That was Mr Greg Holland and on 24 July 1991, he was formally requested to advise by the first defendant in the letter dated 24 July 1991 (exhibit D3 p509 - 510).
Apart from her complaint that Mr Holland unfairly sent his opinion directly to the first defendant and not to her lawyer at that time (who by that time was Mr Gary Pearce), the plaintiff does not appear to have objected to Mr Holland providing the advice. In her testimony, the plaintiff said she did not agree with his advice.
As for the request from Mr Pearce to the first defendant that the assignment of legal aid be transferred to him, the plaintiff agreed that she had signed an authority for him to obtain her file but maintained that it was his idea not hers to write the letter.
She conceded that she did want to finish with Linden Fairclough. In the plaintiff’s view he was rude to her and abrupt. She claimed he failed to listen to her instructions on the two occasions when she first saw him and when she indicated that she wanted to end with him he threatened to write to the first defendant and have the aid terminated. The plaintiff also maintained that Mr Fairclough had lied to her in the matter of making medical appointments for her when in fact he had not made a medical appointment for her.
The plaintiff’s explanation for not instructing Mr Fairclough was because in her view he did not want to listen to her. She was also unhappy about the offer of settlement from the other side in relation to the Telecom claim. The offer was ridiculous and she was being pressured by both him and Mr Holland to accept it. In the plaintiff’s view she was not receiving reasonable advice from Mr Fairclough therefore she did not have to accept it.
Although the plaintiff has maintained throughout that she cannot understand on what basis the first defendant purported to say that she was refusing to accept the advice of Mr Holland, she did agree in evidence that she did not agree with his opinion as to quantum. In the plaintiff’s view she could not have refused to follow the advice of Mr Holland as she did not even meet him until 14 February 1992, the date of the directions hearing before Justice Debelle when the confusion arose as to whether aid had been granted for the trial or not.
When the diary note of Mrs Harper dated 29 October 1991, in which is noted “T/A Mrs Van E being abusive at possible quantum re: Telecom” (exhibit D3 p486), was put directly to the plaintiff her answers were non-responsive and she finally claimed that she could not remember such a conversation with Mrs Harper. Once again the plaintiff’s testimony concerning these events conflicts with the recollection of Mrs Harper, Mr Holland and Mr Fairclough on this topic. Of even more significance is the fact that the plaintiff’s evidence on this topic also conflicts with the two signed documents on the first defendant’s file (exhibits D2 p347 and D2 p348), in which the plaintiff explicitly rejects the offer of settlement of the defendants in the sum of $5000 plus costs, requests an adjournment and acknowledges that she is not prepared to undergo any psychiatric examination, despite Mr Fairclough’s advice to the contrary.
I am simply unable to accept the plaintiff’s version of her dealings with both Mr Fairclough and Mr Holland on the question of whether she was or was not prepared to accept the advice of Mr Holland in relation to quantum and the advice of Mr Fairclough that a psychiatric report be prepared. The plaintiff’s testimony flies in the face of her own written record referred to in the preceding paragraph.
On the topic of the granting of legal aid in the terms set out in the letters of 6 November 1991 (exhibit D3 p481) and 6 January 1992 (exhibit D3 p460), the plaintiff asserted that her solicitor Mr Gary Pearce, who acted for her after Mr Fairclough, advised her in a conversation that the first defendant had given her full legal aid. Once again the plaintiff’s testimony in this regard conflicts with Mr Pearce’s testimony to the effect that, given the terms of the letter from the first defendant of 6 January 1992, he would not ever have said that full legal aid had been granted.
Similarly, although the plaintiff agreed that she had lost confidence in Mr Holland by 14 February 1992, she denied at any stage telling him that he was being manipulated by the first defendant as he alleged in his letter to the first defendant and in his testimony before this Court.
The plaintiff did not deny that she had a falling out with Mr Pearce and with Mr Cocks after 10 March 1992, when she obtained a transcript of proceedings in a directions hearing before Justice Debelle at which she was not present. The plaintiff was most upset that in her view Mr Cocks, who was far too friendly with Dr Leitch, one of the proposed defendants in her action, had cunningly devised a plan to send her to a psychiatrist where she would be declared mentally unstable.
When Mr Pearce also agreed with Mr Cocks’ strategy and endeavoured to persuade her to see a psychiatrist in order to prepare her claims, the plaintiff agreed that she had terminated both their instructions.
The plaintiff did not dispute that Mr Pearce had indicated he would act even after legal aid had been refused and this falling out with him had occurred over the issue of the request by Mr Pearce and Mr Cocks that she see a psychiatrist.
In the plaintiff’s view, their request on these lines was evidence of bad faith towards her and was a justifiable reason for sacking them.
In summary, the plaintiff said that Mr Russell ceased to act for her after he told her that he would not work for the kind of money that the first defendant was prepared to grant. She refused to see Mr Simon White because of the perceived conflict. She sacked Mr Fairclough because he would not listen to her and was rude and abrupt and she had lost confidence in Mr Holland by 14 February 1992. She sacked both Mr Pearce and Mr Cocks after they endeavoured to (as she saw it) derail her case by sending her to Mr Couper-Smartt the psychiatrist.
The plaintiff then tendered the folder of documents (exhibit P6) and spoke about some of the documents in that folder explaining her many and varied attempts to obtain assistance from various politicians, community organisations such as the Women’s Electoral Lobby, the Human Rights and Equal Opportunity Commission, the Ombudsman, the Premier, the Council for Civil Liberties and the like. None of these documents have been of any assistance to me in determining the issues I have to decide.
The plaintiff described the anxiety, stress and difficulty of representing herself in the Supreme Court actions and the District Court action at great length a number of times during the course of her evidence.
In support of her claim for damages the plaintiff called a number of doctors and other people who became involved at some point in her life in treating one or other aspects of her complaints. I do not intend to detail any of the evidence given by any of these witnesses. Some of them saw her in the period of the 1980’s and never saw her again. Others saw her more recently having not seen her before. Suffice it to say, none of the evidence of Dr Siebert, Mr Ormandy, Mr Tan, Dr Cook, Dr Watchow or Mr Danny Caufferman was of any assistance to me in determining any of the issues which arise in this action.
As a general comment all of the witnesses who were called, were trying to remember events which have occurred as long ago as 14 or 15 years.
The first defendant presented three witnesses who were its employees during the relevant period; Mr Adrian Hunt, who was then the Manager of the Assignment Section, Mr James Hartnett, who was then the Director, and Mrs Adelaide Elizabeth Harper, who was the Assignments Officer and who seems to have had the bulk of dealings with the plaintiff.
Each of the three officers employed by the first defendant relied heavily on notes which had been made by them and/or others at about the time when these events occurred.
There were numerous occasions when one or more of the witnesses from the first defendant’s office could not recall any particular conversation or any particular occasion without reference to the file. That is unsurprising in the light of the 15 years that has elapsed between then and now.
Having taken into account the obvious difficulties in terms of recall, I found each of the witnesses from the first defendant’s office and indeed the solicitors who formerly acted for the plaintiff, to be truthful and generally reliable witnesses.
It was obvious in the case of more than one of these witnesses, that their dealings with the plaintiff had been somewhat frustrating and a number of them referred to that fact.
Both Mr Hunt and Mr Hartnett gave evidence concerning the practices and procedures within the first defendant’s office during the relevant period and the criteria for the grant of legal aid to applicants at that time.
In support of their evidence three of the annual reports for the Australian Legal Aid Office between 1989 and 1992 were tendered (exhibits D1A, D1B and D1C). Mr Hunt explained the test of the “ordinarily prudent self funding litigant”, which was then the applicable test in relation to civil claims. He pointed out that the vast majority of civil claims would be litigated by private practitioners without resorting to legal aid in the expectation that, if there were reasonable prospects of success in the action, the private practitioner would assume the risk. From the point of view of the first defendant, it was always concerned to obtain counsel’s advice as to the prospects of success and the likely quantum in terms of any damages that might be awarded on a successful claim.
If a private practitioner was unable or unwilling to assume the risk, then before granting aid, the first defendant would ensure that first, the claim was an economic claim to pursue in the sense that the prospects of recovery of any damages would exceed the costs of pursuing the claim and second, that there was at least a reasonable prospect of success.
Mr Hunt explained that the vast majority of legal aid funds were expended in the area of criminal and family law matters and that there were relatively few grants of aid involving civil claims, the nature of which were such that a private practitioner was not prepared to assume the risk in the expectation of recovering costs at the conclusion of the action.
At that stage in 1990 to 1992 there were still some cases which were funded. According to Mr Hunt’s description those cases would fall somewhere above a 50% prospect of success but somewhere below a 60% prospect of success. He explained that this was so because if the prospects of success were greater than 60% then ordinarily private practitioners would be expected to fund that action without recourse to legal aid.
Mr Hunt and indeed all of the witnesses called from the office of the first defendant confirm that the first defendant’s desire to obtain an up to date assessment of the prospects of success in Ms Van Eckeren’s multitude of claims and as to quantum was a normal step in any legal aid matter involving a civil claim.
Mr Hartnett who was the Director during the relevant times spoke of the dire financial circumstances in which the first defendant found itself in the 1991/1992 financial year. He pointed to the fact that the first defendant at that stage had received about 14,000 applications for legal aid per year, the vast majority of which were in the criminal and family law area.
Each of the three witnesses from the first defendant’s office explained the various minutes, correspondence and memoranda on the file in so far as they related to any of their actions.
In particular Mr Hunt explained that upon granting an assignment of legal aid to a solicitor there was always a monetary amount attached to that grant, beyond which no further expense could be incurred by the solicitor without requesting further assistance from the first defendant.
Each of the grants of aid in the case of the plaintiff were granted on that basis and that is the reason that each of the grants were accompanied by a schedule setting out the applicable monetary commitment of the first defendant at that stage.
During the cross-examination of each of the three witnesses from the first defendant’s office, the plaintiff sought to put a number of documents including extracts from newspaper articles and advertisements that had been placed there for phone-ins from time to time by the first defendant itself. Most of the cross-examination directed to these topics is irrelevant and I do not intend to go into detail about the witnesses’ evidence concerning these topics as it has been of no assistance to me in determining the issues or making the relevant findings of fact.
In so far as it was necessary to confirm matters contained within the guidelines issued by the first defendant, both Mr Hunt and Mrs Harper confirmed that it was a condition of all grants of legal aid that legally assisted persons must accept the advice of their counsel and solicitors. The witnesses agreed that implicit in that condition was the requirement that the advice be reasonable advice.
Mr Hunt also said that in his 31 years of experience in the legal aid office, he was not aware of any officer of the first defendant taking it upon themselves to visit a private solicitor’s office to scour through the files in an endeavour to assess the merits of an action.
Mr Hunt pointed out that the first defendant never got to the stage of making a final decision with regard to whether or not aid would be granted for the trial because Mr Holland was not able to give definitive advice on all matters. To the extent that Mr Holland confirmed that some of the plaintiff’s claims appeared to have merit, the first defendant made one further grant of aid which permitted the counsel to appear at directions hearings and to endeavour to effect a settlement of those actions in respect of which he had advised.
Mrs Harper confirmed the content of some of the file notes in the first defendant’s file to the effect that she had made many and varied efforts to find a solicitor for the plaintiff in the period between April and October 1991.
Mrs Harper also confirmed why the first defendant had refused to reassign the aid to other solicitors at the plaintiff’s request in the period between November 1991 and January 1992. She said that she was aware of the extensive history of the matter and that there were repeated requests from the plaintiff to reassign. After all of the difficulties that they experienced in finding solicitors who either were prepared to act or did not have some conflict with the plaintiff, the first defendant was not prepared to expend further funds in briefing other solicitors who would need to re-read the history of the matter.
From Mrs Harper’s point of view the fourth and final grant of limited legal aid to Mr Holland to effect a settlement in conjunction with Mr Pearce and Mr Fairclough was because the first defendant was aware that there were directions hearings coming up and they did not want the matter to get out of control.
Mrs Harper also agreed with the proposition that was put to her by the plaintiff that Mr Holland had taken a very long time to provide his advice from the date he was instructed on 24 July till late October/November 1991. She said this was because he, like the first defendant, had not realised the volume and complexity of the material that he was being asked to advise on.
She also confirmed Mr Hunt’s evidence that it was the practice at that time that if a civil claim had a good chance of success then normally legal aid would not be granted and if there was not a good chance of success then normally legal aid would not be granted. It was only in unusual cases that there might be some special consideration. As far as Mrs Harper was concerned, the fact that the first defendant funded solicitors and counsel on four separate occasions between October 1990 and March 1992 was because the first defendant was, in her words, “bending over backwards” to assist the plaintiff who Mrs Harper said she personally felt quite sorry for.
As for the assignment to Mr Holland, Mrs Harper confirmed that it was not a full grant of legal aid but a limited assignment in its terms to provide an opinion and thereafter to attend Chambers and try and effect settlement.
Mrs Harper also explained the letters which had been sent to the plaintiff advising her that legal aid would be terminated if she did not comply with her solicitors advice. In response to a specific question from the plaintiff, to the effect that she had been threatening her, Mrs Harper said (t/s p687)
A“We had bent ourselves backwards trying to help you, and it’s quite normal rules of legal aid to tell the applicant that if they don’t take the reasonable advice of either their solicitor or the Legal aid Commission, that we would cancel legal aid.”
She again confirmed in cross-examination that Mr Holland had been granted legal aid on the last occasion to attend to whatever was coming up by way of directions hearing in the Court, in order that the plaintiff would not be at any disadvantage by not being represented because those dates were coming up very quickly.
I am satisfied on the basis of the evidence of Mr Hartnett, Mr Hunt and Mrs Harper that the first defendant did all that it could be reasonably expected to do in the processing of the plaintiff’s applications for legal aid and in its endeavours to ascertain the prospects of success of the actions she was prosecuting. Indeed I find that the officers of the first defendant, and in particular Mrs Harper, went out of their way to assist the plaintiff, who made many telephone calls to the office, turned up unannounced and demanded a great deal of time and attention from the various officers of the first defendant. It is plain from the evidence of the three witnesses and from the contemporary notes made at the time that the plaintiff’s attendances and telephone calls to the office were becoming so vexatious that the Director issued instruction that the staff were not to take any further phone calls from the plaintiff.
The evidence of Mr Holland, Mr Fairclough and Mr Pearce, each of whom was called by the first defendant was affected to some degree by their lack of memory about specific interactions with the plaintiff. However, I accept that their recall about the end of their dealings with the plaintiff was clear enough.

In respect of Mr Holland, I accept his evidence that the only reason he wrote to the first defendant after the chambers hearing before Justice Debelle on 14 February 1992, was to clarify the confusion that appears to have arisen in the judge’s mind as to the terms on which Mr Holland had been granted legal aid. Furthermore, I accept Mr Holland ’s evidence that at the hearing before Justice Debelle the plaintiff told the Court and Mr Holland that she did not wish him to continue to act for her.
That evidence was supported to some extent by of Mr Fairclough who also gave evidence about the termination of his relationship with the plaintiff. I accept his evidence that the plaintiff continually refused to accept the advice of Mr Fairclough, in particular the advice that it was necessary to obtain a further psychiatric report, and that eventually the plaintiff began to accuse Mr Holland, the first defendant and Mr Fairclough of acting against her interests. In these circumstances, I accept that Mr Fairclough had no alternative but to cease acting for the plaintiff.
Mr Pearce, who was the last solicitor to act for the plaintiff in this saga confirmed that his instructions from the plaintiff were terminated along with Mr Cocks’ as a result of the dispute between the plaintiff and himself as to the necessity of obtaining a psychiatric report from Mr Couper-Smartt.
Mr Pearce also confirmed in his evidence that he at no stage had ever told the plaintiff that he had obtained full legal aid for the trial, making an obvious point in the process that in the light of the letters which had been sent to him by legal aid, he would never have said such a thing.
In summary, the evidence of the plaintiff was almost invariably at odds with the evidence of the witnesses called by the defendant. Often the difference was simply about the interpretation of documents and letters, the meaning of which is apparent on the face of those documents. Where the evidence of the plaintiff differs from that of the witnesses Mr Hartnett, Mrs Harper, Mr Hunt, Mr Fairclough, Mr Holland and Mr Pearce, I reject the plaintiff’s account and accept the account given by those witnesses
Whilst the plaintiff plainly holds a genuine belief that the first defendant through its officers has treated her unfairly and that she has been wrongly treated by her respective solicitors, I find that the belief of the plaintiff is not supported by the facts. The only conclusion that I have been able to reach in relation to the plaintiff’s evidence is that her beliefs and actions are as a result of the personality disorder which has been referred to in the evidence and from which it is apparent that she still suffers. There is no other explanation for the distorted set of beliefs and the disordered presentation of the evidence before me.
The Claim for Defamation:
The high point of the evidence in relation to the plaintiff’s claim articulated in paragraphs 27 – 35 of the statement of claim, namely that the second defendant had defamed the plaintiff by referring to her as “mad” to a third party named Deborah McCulloch, is to be found in the evidence of the plaintiff and a witness called on behalf of the plaintiff, Mrs Susan Heywood.
Mrs Heywood said that in about February or March 1994 she and the plaintiff went to the house of a mutual acquaintance Mrs Glen Sutcliffe, as Mrs Sutcliffe had apparently offered to do some typing for the plaintiff who was then preparing the letter to Mrs Tiddy, the Commissioner for Equal Opportunity (exhibit P2). In the course of the visit to Mrs Sutcliffe’s home, Mrs Sutcliffe told the plaintiff in Mrs Heywood’s hearing that one Deborah McCulloch had passed onto Mrs Sutcliffe the following information (t/s p71):
“……the co-ordinator for the legal aid, that they reckon this Margaret Van Eckeren is mad, you know, a bit mentally mad, so that was the response we got. I think then Glen Sutcliffe passed the message onto you (meaning the plaintiff) and you was very, very shocked.”
In cross examination Mrs Heywood said that no names were mentioned and that Glen Sutcliffe in passing on what Deborah McCulloch had told her, referred to “the co-ordinator at Legal Services Commission”.
The plaintiff’s evidence about that conversation with Mrs Sutcliffe can be summarised in the following passage (t/s p305):
“She (meaning Mrs Sutcliffe) said suddenly the co-ordinator from the Legal Services Commission told Deborah McCulloch that I am mad, and it was said in a serious way and, really, what it stands for or implies, I was very hurt, very ashamed, embarrassed”.
In cross-examination she said (t/s p335)
QDid you, at any time in 1994, hear Ms O’Neill from the Legal Services Commission say that you were mad.
ANo, but I got it confirmed from Deborah McCulloch when a person went to Adelaide for this purpose to hear from her.
QAre you calling Ms McCulloch to give evidence in this trial.
ANo, she was not willing to come.
QCan you recall anyone else who was able to say that they have heard Ms O’Neill saying that you are mad.
ANo I am not calling anyone else ...
Two consequences flow from that evidence. First, there is no admissible evidence identifying the second defendant as the source of the alleged defamatory statement. The plaintiff’s evidence that Ms Deborah McCulloch told her that the co-ordinator of the Legal Services Commission said that she was mad is hearsay evidence and in any event fails to identify the second defendant as the source of the statement. Second, there is no evidence before me as to the context of the alleged statement. No other witness was called to say that they had heard the second defendant utter these words in relation to the plaintiff or indeed in what context the statement was alleged to have been made.
In the absence of any admissible evidence supporting paragraphs 27 – 35 of the statement of claim, I do not find it necessary to deal any further with the allegations raised in those paragraphs. The claim against the first and second defendants in paragraphs 27 – 35 inclusive, whether it is based on defamation or breach of statutory duty, leaving aside the question for present purposes whether the second defendant owed the plaintiff any statutory duty as alleged in paragraphs 35(b) and 35(c) of the statement of claim, should, for these reasons, be dismissed.
The Plaintiff’s Case:
The plaintiff’s case in so far as it appears from the statement of claim is that the first defendant has breached its duty of care by terminating legal aid and further or in the alternative, the first defendant breached its statutory duties towards the plaintiff. The statutory duties alleged by the plaintiff to be owed by the first defendant appear to be summarised in paragraph 41.
I agree with the submission made by counsel for the defendant that the duties allegedly owed are ill defined and to some extent are entwined with the allegations in support of the alleged breaches, but they appear to be as follows:-
·The duty to act in accordance with s10 (1)(c) of Legal Services Commission Act1977;
·The duty to take into account the nature of the plaintiff’s injuries and complexity of her legal cases in determining whether to grant legal aid;
·The failure to ensure that the plaintiff had legal representation after Mr Russell ceased to act for her up to the time of the appointment of Mr Linden Fairclough and Mr Gary Pearce;
·The wrongful insistence that Mr Pearce and Mr Fairclough should continue to act for her even though neither had acted competently or in her interests;
·The failure to ensure that the plaintiff and her representative were provided with the opinion of Mr Holland in sufficient time to prepare the actions for trial;
·The failure to act in good faith towards the plaintiff;
·The imposition of extensive administrative requirements on her former lawyer Mr Russell which caused a situation where he was no longer prepared to act for the plaintiff;
·The unjustifiable intrusion into the plaintiff’s privacy and right to confidentiality which constituted a misuse of its powers;
·Taking all autonomy away from the plaintiff’s legal representative;
·Misleading the plaintiff by representing that a supplementary opinion of counsel was necessary when in fact the opinion of Mr Bleby QC was quite sufficient;
·The threat to the plaintiff on more than one occasion that aid would be withdrawn;
·The withholding of the grant of legal aid for a year with the end result that the plaintiff lost her solicitor;
·The failure to provide legal assistance when s10 (2)(a) of Legal Services Commission Act1977 provided that she was entitled to legal assistance; and:
·The contravention of sub-sections 11 (d)(ii) and 11 (d) (iii) of Legal Services Commission Act1977 by imposing heavy demands and undue obligations upon Peter Russell.
The particulars which the plaintiff provided in relation to the alleged duty of care are to be found in paragraph 40 of the statement of claim.
The plaintiff pleaded that the first defendant had undertaken a duty of care towards the plaintiff by adopting her as a client of its services. The first defendant knew by virtue of the long history of the matter and the massive amount of documentation that it would be extremely difficult for her to conduct a trial on her own. Thereafter the particulars alleged in relation to the breach of duty of care are substantially the same as the particulars alleged in relation to the alleged breach of the defendant’s statutory duties.
Did the first defendant owe the plaintiff a duty of care?
The starting point for consideration of the legal issues in this matter is Legal Services Commission Act1977.
The first defendant is a body corporate set up under the provisions of that Act. The Commission is capable of suing and being sued (s6(2)(c)). The functions of the Commission are set out in s10 of the Act. That section is reproduced below:
10 – Functions of Commission
(1)   The Commission will –
(b)     provide, or arrange for the provision of, legal assistance in accordance with this (Act; and
(c)     determine the criteria under which the legal assistance is to be granted; and
(d)     conduct research with a view to ascertaining the needs of the community for legal assistance, and the most effective means of meeting those needs; and
(e)     establish such offices and other facilities as the Commission considers necessary or desirable; and
(f)    initiate and carry out educational programmes to promote an understanding by the public (and especially those sections of the public who may have special needs) of their rights, powers, privileges and duties under the laws of the Commonwealth or the State; and
(g)     inform the public by advertisement or other means of the services provided by the Commission, and the conditions upon which those services are provided; and
(h)     co-operate and make reciprocal arrangements with persons administering schemes of legal assistance in other States and Territories of the Commonwealth or elsewhere; and
(hb)   where it is practicable and appropriate to do so, make use of the services of interpreters, marriage guidance counsellors and social workers for the benefit of assisted persons; and
(i)    encourage and permit law students to participate, so far as the Commission considers practicable and proper to do so, on a voluntary basis and under professional supervision, in the provision of legal assistance by the Commission; and
(j)    make grants to any person or body of persons carrying out work that will in the opinion of the Commission advance the objects of this Act; and
(k)     perform such other functions as the Attorney-General may direct.
(2)In determining the criteria under which legal assistance is to be granted under this Act, the Commission must have regard to the principles –
(a)     that legal assistance should be granted where the public interest or the interests of justice so require; and
(b)     that, subject to paragraph (a), legal assistance should not be granted where the applicant could afford to pay in full for that legal assistance without undue financial hardship.
(2a)The Commission may from time to time, with the approval of the Attorney-General, co-operate with any body established by the Commonwealth for the purpose of the administration of legal aid and provide it with such statistical and other information as the Commission thinks fit.
(3)For the purposes of this Act, the Commission may acquire, deal with, and dispose of, real and personal property.
In the exercise of those functions the Commission is required to act in accordance with the principles set out in s11, reproduced below:
11 – Principles on which Commission operates
In the exercise of its powers and functions the Commission must –
(b)     seek to ensure legal assistance is provided in the most efficient and economical manner:
(c)     use its best endeavours to make legal assistance available to persons throughout the State
(d)     have regard to the following factors:
(i)the need for legal assistance to be readily available and easily accessible to disadvantaged persons;
(ii)the desirability of enabling all assisted persons to obtain the services of legal practitioners of their choice;
(iii)the importance of maintaining the independence of the legal profession;
(iv)the desirability of enabling legal practitioners employed by the Commission to utilise and develop their expertise and maintain their professional standards by conducting litigation and doing other kinds of professional legal work.
Section 17 prescribes the manner in which application for legal assistance is to be made and the duties of the Director in dealing with an application for legal assistance.
For completeness, s17 is reproduced in full:
17 – Application for legal assistance
(1)Subject to subsection (2), an application for legal assistance must be made to the Director in a manner and form determined by the Commission.
(2)An application for legal assistance may be made without formality or verification –
(a)     where the application is of a class exempted by the Commission from the provisions of subsection (1); or
(b)     where the Director considers the matter to which the application relates to be of a minor nature and waives compliance with subsection (1).
(3)The Director must deal with an application for legal assistance in accordance with principles laid down by the Commission, and may grant, unconditionally or subject to such conditions as the Director thinks fit, or may refuse, the application.
(4)Where an application for legal assistance is refused by the Director, or granted subject to conditions, the applicant may, within fourteen days after receiving notice of the Director’s decision, appeal to the Commission against the decision.
(5)The Director may at any time, by notice in writing, impose conditions on the continuance of the legal assistance, or vary or revoke any of the conditions on which legal assistance is being provided.
(6)An assisted person may –
(a)     within fourteen days after receiving a notice under subsection (5); or
(b)     within fourteen days after receiving notice of refusal by the Director to vary or revoke a condition on which legal assistance was granted.
Appeal to the Commission against the decision of the Director.
(7)On an appeal under subsection (4) or (6), the Commission may affirm the decision of the Director, or vary it in such manner as it thinks fit.
It is immediately obvious from the terms of the legislation that, in determining applications for legal assistance, the Commission must make decisions involving the expenditure of public monies in the public interest (s10 (2)(a), s11(a) ).
Whether or not the Act imposes a duty of care upon the Legal Services Commission in the exercise of its functions has been the subject of two prior decisions of this Court and one decision of the Full Court.
In Rogers v Legal Services Commission of SA (1992) S3594 delivered on 3 August 1992, the Full Court upheld the trial judge’s decision that the statement of claim alleging damages for incompetence and professional negligence on the part of the Legal Services Commission did not disclose any cause of action. In the Full Court’s view it was an obvious case that the statement of claim did not disclose any such cause of action.
In Rogers v The Legal Services Commission of SA (1996) D3468/96, delivered on 8 August 1996, Chief Judge Brebner again concluded that Legal Services Commission Actdid not create any right of private action if the Commission directly, or through its members or officers, was careless in terms of giving proper consideration to applications for legal aid. In the Chief Judge’s view, he considered himself bound, in any event, by the Full Court’s decision in Rogers (S3594) (supra). Even if he was not bound, the Chief Judge found there was little or no evidence to suggest that the Director in that case had been in breach of proper standards in considering the application for legal aid.
I have concluded that I too, am bound by the Full Court decision in Rogers (supra), but in case I am wrong about that I have considered the issue afresh in the light of the most recent developments in the common law in this particular area as to the circumstances in which a statutory authority may owe a duty of care and to whom the duty is owed.
I have concluded that the first defendant did not owe a duty of care to the plaintiff. In reaching that conclusion, I have been influenced by the reasoning in the Full Court judgment of CLT v Connon 2000 77 SASR 449, subsequently approved by the High Court in Sullivan v Moody (2001) 207 CLR 562.
After noting that the High Court has been divided as to the general approach to be taken to the issue of whether a particular statutory body owes a common law duty of care, His Honour Gray J at p465, identified from the authorities the critical questions which needed to be asked. They are set out as follows:
Do the terms of the statute rule out the co-existence of a common law duty?
Has the statute imposed on the statutory body discretions and functions incompatible with the duty of care?
Does the legislation reveal an intention to exclude a common law duty?
Are there special factors applicable to a statutory authority which negative a duty of care that a private individual would owe in apparently similar circumstances?
Is the legislation under which the statutory operated inconsistent with the recognition of a common law duty of care?
In that particular case the issue for the Court was whether the Department of Community Welfare, in exercising its powers under the Community Welfare Act 1972 (SA), through its officers, owed a duty of care in exercising its statutory powers to deal with allegations of and investigations into sexual abuse of children and, in particular, in relation to the carrying out of medical examinations to determine whether sexual abuse had occurred.
In that case, the majority considered that the legislative scheme and the nature and purpose of the powers and functions conferred on the Community Welfare Department implied an intention that the common law should be excluded, insofar as any alleged perpetrator of abuse, the subject of the inquiry, was concerned.
In identifying the relevant principles to be applied in this matter, I have also been assisted by the analysis of the authorities in X v The State of South Australia (No 2), [2005] SASC 150.
Whether a duty of care exists is a multi-faceted inquiry which is not answered by the application of any one particular formula – Sullivan v Moody (2001) 207 CLR 562 at p 579-580.
Foreseeability of harm is relevant to the inquiry as to whether a duty of care exists, but alone it is not sufficient – Graham Barclay Oysters v Ryan (2001) 211 CLR 540 at p 555.

The plaintiff’s vulnerability to harm, and knowledge by the defendant of such vulnerability is a relevant consideration -Perre v Apand Pty Ltd (1999) 198 CLR 180 at p 194.
The power to control by reason of a special relationship is a factor relevant to the existence of a duty of care -Brodie v Singleton Shire Council (2001) 206 CLR 512 at p 559.
A common law duty to exercise reasonable care can co-exist with statutory obligations, but if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists - Sullivan v Moody (supra).
The existence or otherwise of a common law duty of care allegedly owed by a statutory body turns on a close examination of the terms, scope and purpose of the relevant statutory regime - CLT v Connon (supra).
A finding of a duty of care that would lead to the incurring of extensive obligations in a multitude of situations is a relevant and important circumstance that, although not decisive, may be a ground for rejecting the existence of a duty – Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515.
Applying the principles to the facts of this case, as I find them to be, I have concluded that, as a matter of statutory construction, the imposition of a duty of care on the Legal Services Commission in its consideration of applications for legal aid would give rise to obligations inconsistent with the duties imposed by sub-section 10(2) and 11 of the Act. Furthermore, a finding of a duty of care in these circumstances would impose an excessive burden upon the Legal Services Commission in the performance of its statutory functions in the public interest. It would create potentially thousands of claims by aggrieved applicants whose application for aid was limited or rejected by the Commission. In my view, it would have the very real potential of frustrating the objects of Legal Services Commission Act by diverting scarce public funds away from its primary purpose, to defending potentially thousands of claims by these aggrieved litigants. Such a result would be, as Acting Judge Thompson pointed out in Rogers v Legal Services Commission of SA in 1992, “expensive, catastrophic and destructive”.
In case I am wrong on the issue of whether a duty of care was owed by the first defendant in these circumstances, I would find that even if there was a duty of care owed by the first defendant to the plaintiff, then that duty of care was not breached. Since the particulars relied on by the plaintiff in support of her claim that the first defendant did breach its duty of care are, essentially, the same as the particulars relied on by her in support of the claim that the first defendant has breached its statutory duty, I shall deal with the factual allegations under the one heading of Breach of Statutory Duty.
Did the First Defendant Breach its Statutory Duties?
The nature of the first defendant’s duties are to be found in sub-section 10 and 11 of the Act referred to above. I find that in the exercise of its statutory functions the first defendant developed guidelines for assessing the eligibility of particular applicants for legal aid. Those guidelines can be found in various of the Annual Reports for the first defendant at about that time, in particular the Annual Report for the financial year ending 30 June 1992 (exhibit D1C at p15 - 18).
In addition to the publishing of those guidelines, I find that with every grant of aid and, in particular, the limited grants of aid to the plaintiff commencing 25 February 1991, the first defendant attached a document headed “Grant of Legal Aid and Important Conditions” (exhibit P1.16). One of the salient features of the written conditions is the requirement that the plaintiff must follow any reasonable advice given by her lawyer.
The plaintiff claims that the first defendant became her primary legal advisor. I find as a matter of fact that this simply did not occur. Mrs Harper said that in the months between the time Mr Russell ceased to act for the plaintiff in early 1991 and the date when Mr Fairclough was appointed as her solicitor there were many attempts to find a new solicitor for the plaintiff. At no time during that hiatus period between Mr Russell and Mr Fairclough was any solicitor from the first defendant’s office assigned to the plaintiff’s case. Accordingly the provisions of s29 and s31 of Legal Services Commission Actdo not apply.
The fact that Mrs Harper, the assignments officer undertook to assist the plaintiff obtain a new solicitor acceptable to her does not mean that she there before became the plaintiff’s primary legal advisor. Once again I accept Mrs Harper’s evidence that the reason she became involved in attempting to find another solicitor for the plaintiff was because by then she had become aware of the history of the matter and with a date for trial in the not too distant future she was endeavouring to assist the plaintiff find a solicitor in order that the matter would not get out of control.
I therefore reject the plaintiff’s submission that at any stage in its dealings with the plaintiff the first defendant became her primary legal advisor.
In relation to each grant of aid to the plaintiff my findings are as follows.
In respect of the first grant of aid on 26 February 1991, I find that the first defendant extended aid in accordance with its own guidelines for the purpose of obtaining a supplementary opinion from a Queens Counsel (Ms Branson) as to the prospects of success and possible quantum in all of the plaintiff’s actions.
I find, for the reasons referred to elsewhere, that the first defendant’s endeavours to obtain that opinion were frustrated by the plaintiff’s own actions in refusing to allow Ms Branson QC to peruse the brief and give that advice. By the time the plaintiff had withdrawn her objection, Ms Branson QC was engaged in other matters, and the first defendant went to some considerable effort to find an alternative counsel to give this advice. That counsel was Mr Holland, and I find that on 24 July 1991 aid was granted for the same reason as the initial grant of aid had been approved in relation to the obtaining of Ms Branson QC’s opinion; namely for the first defendant to obtain an up-to-date opinion as to the prospects of success and possible quantum in all of the plaintiff’s actions.
I reject the plaintiff’s assertion that Mr Holland ’s opinion was so tardy that she was prejudiced in her preparation for the trial.
Mr Holland, in evidence at the trial, stated that the opinion did take considerably longer than usual from approximately July to October of that year for a number of reasons but, in particular, because of the extensive documentary material there was to go through, compounded by the lack of documentation in relation to some claims. To his best memory, the advice he ultimately gave was qualified by the necessity to obtain further reports but, in any event, that opinion consisted of some 90-100 pages.
I find that the first defendant extended aid, on 6 November 1991, in an assignment to Mr Fairclough at the plaintiff’s request in order that the solicitor might investigate the possibility of affecting a settlement in the Telecom claim, and on the basis that Mr Holland was to continue as counsel.
I find that on 6 January 1992, the first defendant made one further grant of aid to Mr Pearce, again at the request of the plaintiff, in order that the solicitor might attend any chambers hearings which were then imminent, pending the final opinion of Mr Holland as to the merits of the medical negligence claims.
I find that the subsequent two extensions of aid which were granted to Mr Pearce and Mr Fairclough were made at a time when the first defendant was still awaiting a complete opinion from counsel both as to the prospects of success in all the plaintiff’s claims, and as to the likely quantum.
I accept Mrs Harper’s evidence that these two grants of aid were made, really, in order to assist the plaintiff because, at that stage, the first defendant, through its employee, Mrs Harper, as she put it, “felt some sympathy for the plaintiff’s predicament”.
I find that the fact that the plaintiff was in such a predicament by the end of 1991, and early 1992, was largely as a consequence of delaying Ms Branson QC’s opinion by her objection to the Commission forwarding the material without her consent, and then, later, by her difficulties with the various solicitors who the first defendant had endeavoured to assign to her case. Even when a solicitor was assigned to her case (Mr Fairclough) the plaintiff was not happy, and I find that it was largely because of her persistent requests to the various officers of the first defendant, that the further assignment to Mr Pearce was made.
I find that the first defendant’s termination of legal aid, on 21 February 1992, was because the plaintiff had refused to accept the advice of counsel or to provide proper instructions to her solicitor.
There is no doubt that the plaintiff rejected Mr Holland ’s advice as to quantum and refused to consider the offer of settlement which had been made at that time.
Upon the plaintiff’s own evidence, she terminated the instructions of Mr Pearce and Mr Cox after their suggestion to her that a psychiatric report be obtained in order to lay the necessary foundation for her claim. The plaintiff vehemently rejected that advice and, indeed, categorised the advice of Mr Pearce and Mr Cox as a cunning attempt to derail her case.
Whatever the motivations for the plaintiff’s behaviour, and it seems clear enough from the medical reports which are contained within the exhibits that this behaviour is a direct consequence of the personality disorder from which she suffers, the effect was such that no solicitor assigned to her could properly prepare the case nor was there any hope of any of the matters being settled while she refused to accept Mr Holland’s advice.
I find that, in all of the circumstances, the first defendant’s termination of aid, at the point when it did, was both justified and reasonable.
In my view, Legal Services Commission Actdoes not impose upon the first defendant any of the duties referred to in paragraph 41 of the Statement of Claim. In particular, it is quite unreasonable to suppose that officers of the first defendant should travel to private solicitor’s premises and rifle through files in order to determine whether a claim has merit.
The suggestion, in the statement of claim, that Mr Pearce and Mr Fairclough did not act competently or in the interests of the plaintiff is unfounded, and I find that the first defendant’s insistence that the plaintiff should stop requesting new solicitors and instruct both Mr Pearce and Mr Fairclough was reasonable in the circumstances.
Furthermore, I find that the first defendant was quite justified in corresponding with Mr Russell in the terms it did prior to the granting of limited aid on the first occasion. It is true that Mr Russell had some difficulty in providing the material requested because of the complexity of the plaintiff’s claims, but nevertheless the particulars and documents requested by the first defendant were absolutely essential to gaining an understanding of whether there were, in fact, any real prospects of success and the likely quantum of the plaintiff’s many and varied actions.
Moreover, the assertion that the correspondence and requirements of the first defendant effectively prevented Mr Russell from acting is unfounded. Notwithstanding Mr Russell’s absence as a witness in these proceedings, I find from the evidence within the documentary exhibits before me that Mr Russell ceased to act for the plaintiff for reasons which have little to do with the first defendant’s inquiries concerning the merits of the action.
I have already dealt with the suggestion, and I reject the complaint, that Mr Holland ’s opinion was provided too late to properly prepare for trial. It may well be that the plaintiff would not have been ready for trial, whether represented or unrepresented, by the time the trial did proceed in 1992, but I find that the cause was not to do with Mr Holland’s opinion not being provided in time. If anything, the delays caused in the period of time which was the subject of evidence before me were caused in the main by the intransigent and unreasonable behaviour of the plaintiff.
The assertion by the plaintiff that no further opinion was necessary after the receipt of the initial opinion by Mr Bleby QC, in 1997, is unfounded. As I have already commented, the opinion by Mr Bleby QC, in its very terms, required more before any proper assessment could be made.
The plaintiff’s characterisation of Mrs Harper’s letters to her as constituting threats and victimisation is also unfounded. I accept, unreservedly, Mrs Harper’s explanation for those letters, and I find that the first defendant, in forwarding the letters to the plaintiff, at that time was doing no more than its duty to ensure that only meritorious actions proceeded and that scarce public funds were not misused or wasted.
In summary, I find that the first defendant did not owe the plaintiff any statutory duty or duties as alleged by the plaintiff in paragraph 41 of the statement of claim. I find that the first defendant did act in accordance with its statutory duties towards the plaintiff. The evidence does not support any of the plaintiff’s allegations that the first defendant behaved towards her in a way which was contrary to its statutory charter or in breach of its duty to her.
Extension of Time and Damages:
The plaintiff’s claim for damages appears in paragraph 43 of the statement of claim. She claims to have suffered an aggravation of pre-existing injuries due to her having to represent herself at the trial of her medical negligence claims and personal injury claim. She also claims to have been unsuccessful in those trials due to being unrepresented and further claims that she suffered aggravation of her injuries because she has had to seek assistance from the various politicians, government agencies and other organisations over the years (exhibit P6).
I have remarked elsewhere on the medical witnesses called by the plaintiff in support of those allegations. None of the medical witnesses who were called to give evidence at this trial gave evidence which was of any use at all to me in determining any issue at the trial. Furthermore, the plaintiff sought to prove again her damages in each and every one of the medical negligence and personal injury claims previously litigated in the Supreme and District Courts in 1992 and 1993. To the extent that the plaintiff tried to produce the same evidence that had been led in those trials I refused to allow her to do so because such evidence was not material to the issues I had to determine.
The plaintiff did call a psychologist Voula Antoniadis. The fundamental difficulty in her evidence was that Ms Antoniadis herself did not claim to be able to separate out what part all of the plaintiff’s various operations in the 1980’s had played in her current presentation to Ms Antoniadis. Indeed this was a difficulty which faced all of the other medical specialists who she did manage to call as many of them had either not seen her before or not seen her since.
I agree with the submission made by counsel for the first defendant that the evidence of Ms Antoniadis in these circumstances was almost entirely useless. It is for this reason that I decline to even attempt the exercise of assessing the plaintiff’s damages as there is simply no proper basis on which I can do so.
To the extent that it was conceded by the defendant that the report of Ms Antoniadis did qualify as a material fact for the purpose of s48(3) of the Limitation of Actions Act 1936, the report does have some relevance.
As to the question of extension of time because I have preferred to deal with the merits of the plaintiff’s claim without reference to the application for an extension of time, it is no longer necessary to deal with the application for an extension of time because I have concluded in any event that there is no substance both factually and legally to any of the plaintiff’s claims.
For all of these reasons the plaintiff’s claims are dismissed.