Walter v State of New South Wales

[2000] NSWSC 237

CITATION:	Walter v State of New South Wales [2000] NSWSC 237
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20221/98
HEARING DATE(S):	1, 2, 3, 6 and 9 March 2000
JUDGMENT DATE:	15 March 2000
PARTIES :	Patricia Anne Walter (Plaintiff) The State of New South Wales (Defendant)
JUDGMENT OF:	O'Keefe J

COUNSEL :	Ms Dixie Coulton - For plaintiff Mr Greg Laughton - For defendant
SOLICITORS:	I V Knight State Crown Solicitor 60 - 70 Elizabeth Street SYDNEY N S W 2000 George Sten & Co 359 Chapel Road BANKSTOWN N S W 2200
CATCHWORDS:	Extension of time for bringing action - Gateway, bar - Discretion - Principles for exercise of discretion - Just and reasonable - Fair trial of action - Prejudice - factors to consider - Public interest - Equitable claim - Laches - Amendment
LEGISLATION CITED:	Limitation Act 1969, s.14, s.23, s.60G; s.60I Child Welfare Act, 1939 ss5, 9, 10, 23, 28, 158 Children (Care and Protection) Act, 1987 Claims Against the Government and Crown Suits Act, 1912, s.4 Crown Proceedings Act, 1988, s.9 Supreme Court Rules Part 15 R 22; Part 20 R 2
CASES CITED:	Commonwealth v McLean (1997) 41 NSWLR 389 Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 199-200 Cowie v State Electricity Commission (Vic) (1964) VR 788 at 793 Brisbane South Regional Health Authority v Taylor (supra at 551) Barker v Wingo (1972) 407 US 514 at 532 Johnson v DOCS (1999) NSWSC 1156 (paras 88,100) TC v State of New South Wales (Supreme Court of New South Wales, unreported, 11 February 1999) Williams v The Minister (1994) 35 NSWLR 497 Roberts v Hopwood [1925] AC 578 at 603 Lamont v Wyong Shire Council (New South Wales Supreme Court, unreported, 13 December 1991) Main Developments Pty Ltd v Rockdale Municipal Council (1992) 79 LGERA 30 O'Grady v Botany Wools (Aust) (1964) SR 359 at 364 Boyns v Lackey (1958) 58 SR (NSW) 395 Life Assurance of Scotland v Siddal (1861) 45 ER 800 at 806 Lindsay Petroleum Co v Hurd (1874) LR 5PC 221 at 239-240
DECISION:	Extension of time refused.; Amendment to Statement of Claim refused.; No order as to costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’KEEFE J

15 MARCH 2000

20221/98 - PATRICIA ANNE WALTER v THE STATE OF NEW SOUTH WALES

JUDGMENT

HIS HONOUR:

INTRODUCTION:

1 This is an application under s.60G of the Limitation Act 1969 for an extension of the time within which the plaintiff, Patricia Anne Walter (Ms Walter), may commence an action against the State of New South Wales. Her claim is pleaded in negligence and relates to events that are alleged to have begun early in 1952, when the plaintiff was taken from her mother, charged with being a neglected child, made a ward of the State and placed with foster parents and to have ended in May 1971 when the plaintiff was married or in or about March, 1973 when certain events relating to the adoption of her two children occurred (para. 35).

2    The life of the plaintiff has been sad and hard. Anyone with even a modicum of compassion would feel for her. From the time of her birth on 9 September, 1951, as one of eight children, she was not cared for. Her mother appears not to have fed her and she was so undernourished that she was not expected to live. So serious was her condition that she was taken from her mother when she was only five months old and placed in a hostel. Before she was six months old she had been charged with being a neglected child and being in improper guardianship. She was committed to the care of the relevant Minister and declared a ward of State. By that time three of her brothers had been similarly charged and put into care.

3    Although contemporaneous witnesses do not appear to be available to fill out the details of the plaintiff’s very earliest life or the extent of the detrimental long term effects of the malnutrition from which she suffered during the first five months of her life, it is clear that her natural family was large and dysfunctional and that her mother was incapable of looking after her or was unwilling to do so. The plaintiff herself was too young to remember this very early period of her life, but it emerges from the limited material that is available that the circumstances in which the plaintiff was being raised were so bad that threats were made to her mother that if the plaintiff died a charge of manslaughter would be laid. This is something of which the plaintiff became aware and it has remained in her mind clearly and firmly.

4    No direct mention is made by the plaintiff of her father in her supporting affidavit. However, her mother was not prepared to consent to the adoption of her daughter. Effectively that left but two alternatives, namely that the plaintiff be put into an institution or placed in foster care. The latter was preferred. The plaintiff alleges that as a consequence of the events which occurred whilst she was in the care of the State of New South Wales, including her periods of foster care, she developed a psychiatric or psychological condition which manifests itself in the form of anxiety, panic, agoraphobia, depression, irritability and other anti-social conduct. She has manifest this combination of symptoms since approximately 1973 and they have remained fairly static since that time. Her condition is said to be related to a sense of worthlessness that the plaintiff feels. She holds the belief that she is “a bad person” and that she now needs “to proceed with the case to know that (she is) a good person”.

5    She attended psychiatrists in mid-1992 to substantiate that she had agoraphobia so as to enable her to obtain a pension. The form of her evidence suggests that she had some knowledge of the medical term or terms to be applied to the symptoms which she was obviously experiencing even prior to her attendance on these psychiatrists. However that may be, by mid-1992 at the very latest her symptoms were formally diagnosed as agoraphobia.

6    Details of the allegations that she makes and the evidence in respect of those allegations are dealt with later in this judgment.

APPLICABLE LAW

7 Sub-division 3 of Division 3 in Part 3 (SS.60F - 60J) of the Limitation Act, 1969 deals with discretionary extension of the limitation period for latent injuries, diseases and impairments. The purpose of the sub-division is expressed to be to provide a procedure for an extension of the limitation period where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. (S.60F).

8 Section 60G(2) of the Limitation Act 1969 (the Act) gives power to extend the limitation period for a cause of action that a person claims to have, if the Court decides that “it is just and reasonable to do so”. Although the section is expressed to apply to a cause of action that accrues on or after 1 September, 1990 and is founded on negligence, nuisance or breach of duty for damages for personal injury (s.60G(1)), the power is extended so as to apply to existing causes of action for personal injury where the injury, disease or impairment is latent. This is effected by Clause 4(1) and (3) of Schedule 5 to the Act (S.60F). In respect of a cause of action that arose before 1 September, 1990 the Court may extend the time within a period of three years from a date fixed by s.60I of the Act or a period of three years commencing on 1 September, 1990 (Schedule 5 Clause 4(4)).

9    Section 60I of the Act provides that:

“(1) A court may not make an order under s.60G … unless it is satisfied that :

(a) the plaintiff :
(i) did not know that personal injury had been suffered; or
(ii) was unaware of the nature or extent of personal injury suffered; or
(iii) was unaware of the connection between the personal injury and the defendant’s act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and
(b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)-(iii)”

10 Section 60 I provides a bar to the making of an order under s.60G unless the Court is satisfied as to the existence of one of the matters specified in s.60I(1)(a)(i) - (iii) at the expiration of the relevant limitation period and the application for the order is made within three years after the plaintiff became aware or ought to have become aware of all of the matters specified in s.60I(1)(a) (i) - (iii). In order to comply with the provisions of the section the plaintiff must prove as a fact that she was unaware of the particular matter, but that matter itself need not be proved as a fact. As was said in Commonwealth v McLean (1997) 41NSWLR 389:

“Section 60G and s.60I are clearly intended to operate together. The requirement in s.60I that the court be satisfied of various matters must be read as requiring no higher proof from an applicant on matters which form part of the cause of action than is required by s.60G(2). When these provisions are read together, it becomes clear … that s.60I requires the court to be satisfied that the applicant was not aware of the matters referred to but does not require proof of those matters as facts.” (supra at 395 per Handley and Beazley JJA).

11    The bar provided by S. 60 I of the Act must be crossed before the plaintiff can obtain an order under S.60 G. In Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 the High Court consisting of Dawson, Toohey, McHugh, Gummow and Kirby JJ considered Queensland limitation legislation dealing with causes of action arising in circumstances cognate to those dealt with in Sub-division 3 of Division 3 of Part 3 of the Act. Kirby J dissented. In the joint judgment of Toohey and Gummow JJ an approach to the application of the relevant section that involved a comparison of the prejudice that would have occurred had the action been commenced within time and that which would occur at the time at which the extension of the limitation period was sought was said to be wrong (supra at 548). McHugh J, with whom Dawson J agreed, also rejected such an approach (supra at 554 - 555). Toohey and Gummow JJ also rejected the notion of weighing the prejudice of an applicant against the prejudice of a respondent. One reason for this is that the prejudice to the applicant is absolute if the application is refused, but that of itself is not enough to warrant an extension of time (supra at 549). This matter was adverted to in Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 199-200.

12    Toohey and Gummow JJ pointed out that whilst there was a discretion to grant an extension of time, the question was : “on what principles is the discretion to be exercised” (supra at 546 - 547). In answering this question they said:

“The discretion conferred … is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the Court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the Court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) ((1964) VR 788 at 793) in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Limited ((1966) QdR 465 at 474):
“It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.” (supra at 547)

13    They also said that in considering the exercise of the discretion to extend the limitation period:

“A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible” (supra at 548);

and

“the real question is whether the delay has made the chances of a fair trial unlikely.” (supra at 550)

14    McHugh and Dawson JJ also deal with the question of prejudice to a prospective defendant, the onus being on the applicant to satisfy the Court that the discretion should be exercised favourably. Dawson J said that: “(t)o discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant.” (supra at 544)

15    McHugh J, with whose reasons Dawson J agreed, set out several considerations that are material to the determination of applications such as that presently before the Court:

“The final rationale for limitation periods is that the public interest requires that
disputes be settled as quickly as possible” (supra at 553);

2. “A limitation period is the general rule; an extension provision is the
exception to it” (supra at 555);

3. “(T)he discretion to extend should … be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question.” (supra at 553 - 554);

4. When an applicant brings him or herself within an entitling provision such as S.60 I of the Act: “those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them the applicant has no right to call for the discretion to the exercised in his or her favour. Proof of them does not give the applicant a presumptive right to the exercise of the discretion.” (supra at 554);

5. “Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend himself or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed on him.” (supra at 555)

16    From these references it can be seen that both sets of judgments, Toohey and Gummow JJ on the one hand and Dawson and McHugh JJ on the other, consider that whether or not a prospective defendant can properly defend him or herself, i.e. have a fair trial, is material, often most important, to the exercise of the discretion to extend the limitation period, since that is a consideration at the heart of what is just and reasonable in the circumstances. This common ground was adverted to by Mason P in Sydney City Council v Zegarac (supra at 558). Whilst he adverted to the differences between the two sets of judgments, Mason P took the view that it would be presumptuous for him to explain those differences (supra at 199). However he said that :

1. “ … mere proof of actual prejudice will not dictate the rejection of an application to extend the time” (supra at 199; italics added);

2. “… even significant prejudice does not dictate the rejection of an application for the extension of time” (supra at 199; italics added);
3. “Evidence of actual or significant prejudice may lead to the refusal of the application depending on the particular circumstances of the case.” (supra at 199);

4. “… its (prejudice’s) impact on a fair trial is the primary focus.” (supra at 199; parenthesis added)

17    Priestly JA dissented. However, he pointed out that the Queensland provisions under consideration in Brisbane South Regional Health Authority v Taylor (supra) “were … made in the context of the legislation for discovery cases that had originated in the United Kingdom in 1963” (supra at 222), thus treating the Queensland provisions as akin to those of Sub-division 3 of Division 3 of Part 3 of the Act, rather than to those of Sub-division 2 of Division 3 of Part 3 of the Act.

18    Powell JA was of the view that difficulty in identifying and locating relevant witnesses, the loss of relevant records, the loss of the opportunity of having earlier medical examinations, the fading of witnesses’ memories were all sources of significant prejudice. These considerations are an echo what was said by McHugh J in Brisbane South Regional Health Authority v Taylor (supra at 551). Powell JA also stressed the importance of the consideration of the unlikelihood of a fair trial taking place when deciding not to grant an extension of the limitation period (supra at 238; 242).

19    In order that this application be determined in favour of the plaintiff she must establish on the balance of probabilities that :

1. as at the expiration of the limitation period she did not know that she had suffered personal injury or that she was unaware of the nature or extent of the personal injury she had suffered or was unaware of the connection between the personal injury she had suffered and the defendant’s acts or omissions; (S.60 I(1)(a));

2. her application for extension of the limitation period was made within three years after she became aware or ought to have become aware of all of the matters set out in 1 above; (S.60 I(1)(b));

3. it is just and reasonable to extend the limitation period. (S. 60 G(2))

20    In order for it to be just and reasonable to extend the limitation period the plaintiff must establish that the commencement of an action beyond that period would not result in material or significant prejudice to the prospective defendant in relation to that action. The impact of prejudicial factors on the fair trial of an action is the primary focus in determining the justice and reasonableness of the granting of the extension. If a fair trial of the action cannot be had then the application should usually be refused. In arriving at a conclusion in relation to the question of whether it is just and reasonable to extend the limitation period, it is not appropriate to balance prejudice to the plaintiff on the one hand with the prejudice to the defendant on the other, nor to compare the prejudice that would have occurred had the action been commenced within time with that which would occur at the time at which the extension of the limitation period is sought.

21    Prejudice may take many forms. Those forms include unavailability of relevant witnesses (whether through death or inability to locate them), destruction or loss of material documents, lack of recollection on the part of relevant witnesses and the deterioration of recollection due to effluxion of time even in those witnesses who are available and have some recollection of some events that are or may be an issue. Furthermore, effluxion of time is likely to make at least some witnesses who claim to have a recollection of particular events or statements vulnerable in cross-examination to suggestions that their recollections must inevitably be faulty. In addition, a plaintiff may be able to benefit, to the detriment of a defendant, from responses in cross-examination of inability to recall details that may be adverse to the plaintiff’s case, on the ground that the events occurred so long ago. These are perhaps some of the matters that McHugh J was adverting to when he said that “it is oppressive, even ‘cruel’ to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed” Brisbane South Regional Health Authority v Taylor (supra at 552). In relation to a consideration of the extent of prejudice it is also relevant that individuals should be able to arrange their affairs on the basis that claims can no longer be made against them, a consideration that is true for public institutions as well as for private individuals and enterprises. There is also a more subtle prejudice that can occur, namely a deterioration in quality of evidence that is not even recognised by the parties. In this regard McHugh J drew attention to the dictum of the Supreme Court of the United States of America in Barker v Wingo (1972) 407 US 514 at 532, namely that “what has been forgotten can rarely be shown”. He pointed out:

“It must often happen that important, perhaps decisive, evidence has disappeared without anyone ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. … The longer the delay in commencing proceedings the more likely is it that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.” Brisbane South Regional Health Authority v Taylor (supra at 551)

22    It is on the basis of the principles and considerations set out in this section of the judgment that this application is to be decided.

FACTS

23    he plaintiff was born on 9 September, 1951. Her circumstances in the first five months of her life were clearly bad and the care afforded to her by her natural parents, poor. As already stated she was in danger of death from malnutrition, was taken from her natural parents and charged with being a neglected child and being in improper guardianship. In February, 1952 she was placed in the Myee Hostel of the Child Welfare Department (the Department). Shortly thereafter she was committed by the court to the care of the relevant Minister and declared a ward of the State. At the time she was extremely ill and it would seem that the Department was anxious that she should be adopted so that she would have an opportunity to be raised as the child of parents who wanted a child of their own. However, her mother was not prepared to consent to her being adopted and as a consequence on 30 March 1952, when the plaintiff was approximately 6 months old, she was placed with foster parents, Mrs Lillian Borrett (Mrs Borrett) and Mr Sidney George Borrett (Mr Borrett). There she remained for various periods which, although not continuous, extended up to 24 January, 1967. Thereafter she was with her foster mother’s parents for a period of seven months, as she had been between November, 1954 and February, 1955. Whilst she makes no complaint against the foster grandparents, as she terms them, she does complain about the situation while she lived with Mr and Mrs Borrett, and about the inappropriate care and treatment by the Department at the hands of various of its officers and by being institutionalised in various Departmental shelters, hostels and other institutions. This part of her claim covers a period that extends to May, 1971.

24    In her affidavit she claims that her foster mother would hit her on her hips and legs with a copper stick causing bruising and severe pain at least a few times a month, possibly up to once a week. She deposes that on one occasion she was placed fully clothed in a cold bath. She was crying at the time as a result of being hit with the copper stick, but being placed in the bath did not cause her to stop crying.

25    From an early age the plaintiff suffered from bed-wetting. One of her complaints is that her foster mother would wake her up after she had gone to sleep, ask her if she wished to urinate and, even if she said she did not, would put her on a chamber pot for that purpose. The plaintiff also claims that at times the foster mother would hit her with the copper stick if she did urinate; this was for saying she did not want to urinate, when in fact she did. Another complaint relating to her problem of bed-wetting was that even though she told her foster mother that she had wet the bed, the sheets on her bed would not be changed “there and then” and that because her bed was wet she would sleep on the floor. Other complaints directed against her foster mother included that she would kick her around the ankles because of the way in which she was walking, that she “never cuddled” her, never “sat me on her knee”, “never gave (her) any praise” and did not comfort her on one occasion when she hurt herself by falling off a scooter which she had been told not to ride.

26    At a more general family level she claims that she was made to eat her meals somewhat separated from the rest of the family because of her poor table manners which, she claims, were no different from those of the natural son and daughter of the foster parents.

27    Other complaints against her foster mother include that she locked the plaintiff outside the house when she misbehaved, physically examined her anus for worms, gave her certain sedatives or relaxants and laxatives, threatened her with boarding school, admonished her for masturbation and, as she got older, described her in unflattering, demeaning ways. As to her foster father she alleges that he drank heavily and “was drunk on most days throughout the time I resided with them”. She says this occurred from the time that she was five and that he too used language to her that was demeaning: “you’ve got bad blood in you just like your mother. You’re going nowhere.”

28    Part of her claim, as detailed in her affidavit, is based on an instance of physical, but not sexual, abuse by her foster father. In January 1967 when she was arguing with him in relation to her association with a local youth whom she says was paying unwanted attention to her, she says that Mr. Borrett slapped her and punched her at least five times and caused her to fall over. He also grabbed her and shook her violently following which she left the foster parents home and spent the night at a girlfriend’s. This incident and its sequel led to her being charged the following day with being uncontrollable.

29    Unfortunately, Mr Borrett died in 1990. He is therefore not available to deal with specific allegations made against him nor to give evidence relating to the household circumstances and the relationships that existed within the household. Mrs Borrett, who is now aged 76 has a number of health problems, one of which is heart disease. Her doctor has certified that attending court would adversely affect her health and that she would be unable to cope with the stress involved.

30    On 14 May 1971 the plaintiff was married and deposes that she was then discharged from wardship. This marriage proved unsuccessful. Indeed, she said she was repeatedly assaulted and otherwise ill-treated by her husband and the marriage finally broke up in about March 1973.

31    There are also complaints made in respect of particular officers of the Department but the most extensive complaints relate to the behaviour of Mr and Mrs Borrett and the failure of the Department, with knowledge of their unsuitability as foster parents, to remove the plaintiff from their care.

32    The allegations against the Department in the statement of claim are in broad terms: failure of the defendant, its servants or agents, to act in the plaintiff’s best interests (para. 5(ii)); failure to take reasonable steps to protect the physical and mental health of the plaintiff whilst in its care (para. 5(v)); failure to provide proper material and emotional support to the plaintiff whilst she was in its care (para. 5(vi)); failure to follow recommendations of its own experts to remove the plaintiff from the care of her foster parents (para. 5(vii)); placing and keeping the plaintiff with the Borretts (para. 5(viii)); failure to obtain appropriate advice and counselling for the plaintiff (para. 5(ix)); failure to seek and implement suitable treatment for the plaintiff (5(xi)) and, specifically, coercion of the plaintiff by the defendant its servants and agents into the fostering and/or signing for the adoption of the plaintiff’s own children (5 (xii)). These allegations were expanded upon in particulars that were supplied by the plaintiff’s solicitors during the course of the hearing in response to a request for particulars from the Crown Solicitor dated 25 June, 1999. In the particulars and in her affidavit in support of the present application, the plaintiff made reference to a number of specific events including institutionalisation, being charged with various offences and being returned by officers of the Department to the care of the Borretts. She made particular mention of certain nominated departmental officers and annexed reports from certain other officers to her affidavit. Some of these officers are either dead or cannot now be traced. The details of this are referred to later in this judgment.

SECTIONS 60 I AND 60 G.

33 For the purposes of considering whether or not the plaintiff has satisfied the requirements of S.60 I and S.60 G of the Limitation Act, 1969, I assume, without deciding, that the matters pleaded and deposed to by the plaintiff would give rise to a viable cause of action against the defendant. The need to establish a viable cause of action in order to succeed in obtaining an order under s.60 G was dealt with in Williams v The Minister (1994) 35 NSWLR 497. Kirby P., with whose conclusions Priestly JA agreed, albeit “only with hesitation” (supra at 516), said:

“All that needs to be determined at this stage is that her causes of action, for which she requires the extension under the Act, are viable so that the provision of the extension sought is not a futility”. (supra at 515)

34    It has been pointed out that when Williams v. The Minister went to trial before Abadee J he held that there was no duty of the kind asserted by the plaintiff. That decision is now on appeal. A different view was taken by Rolfe J in Johnson v DOCS (1999) NSWSC 1156 (paras. 88, 100), as it was by Studdert J. in TC v. State of New South Wales (unreported 11 February, 1999).

35    In view of this situation, it seems to me unhelpful for yet another judge at first instance to express a view on that matter and therefore for me to decide the present application on the basis of the existence or viability of the cause of action in negligence alleged. This is the reason for approaching the determination of the matter on the assumption referred to above, an assumption which is of course favourable to the plaintiff.

Section 60 I

36    Initially counsel for the plaintiff put the plaintiff’s case squarely and solely within the provision of S.60 I (1)(a)(iii) and (b). However, in her address in reply reference was also made to S. 60 I(1)(a)(ii). The plaintiff, so the argument ran, was unaware of the nature and extent and of connection between the personal injuries she had sustained, being the psychiatric or psychological condition previously referred to, and the acts and omissions of the defendant until she saw a report of Dr. Jurek in January, 1997. This submission was based on an express statement to this effect by the plaintiff in her affidavit in support of the application (para. 44). However, the plaintiff had seen a number of psychiatrists in 1992. At that time she attended Dr. Gibson at Balmain on a number of occasions. She also attended Dr. Pryor in late 1992. Each of these psychiatrists took a history from her. Dr. Jurek likewise took a history. In the course of her evidence, Dr. Jurek confirmed that it is standard psychiatric or psychological practice based on a tenet borne out by observation, to treat a child’s formative years as very important in fixing the character and characteristics in later life. Indeed, such proposition is “a given in psychiatric practice”. When dealing with a disturbed person, a competent psychiatrist would, she said, immediately look to see what had occurred in the childhood of that person and, in order to win the confidence of the person, explain to the person why that early history was being taken.

37    Such a situation raises the real possibility that Dr. Gibson and/or Dr. Pryor discussed with the plaintiff not merely her symptoms and childhood, but also the reason for their delving into her childhood occurrences in the clinical context. Given the standard psychiatric approach to the aetiology of adult psychiatric disturbances, there seems to me to be a deal of improbability in relation to the assertions made by the plaintiff in her affidavit (para. 44). Furthermore, in a number of instances, the plaintiff who presented as an astute and intelligent, albeit a manipulative person as Dr Jurek confirmed, demonstrated a knowledge and understanding of matters relating to her condition, drugs and even in one instance, perhaps the words used in a decided case, which gave pause for thought in relation to her assertion as to when she first became aware of a nexus between her childhood experiences and her psychiatric condition.

38    These matters are material to the discharge of the onus the plaintiff bears in relation to the matters referred to in S.60 I (1)(a). However, the evidence in relation to her awareness went further when the plaintiff was cross-examined.

39    She first became aware that she was “becoming an agoraphobic” in or about 1973 (para. 42) and from about that time she had to have the assistance of a person to take her whenever she left the house. She needed a person she could trust to accompany her. Counsel for the defendant cross-examined her on her state of knowledge and awareness in relation to her condition and its causes, in whole or in part:

Q. In 1991 and 1992 when you saw Dr Gibson, you knew that you had had problems in your relationship with your foster parents?
A. Yes I did.
Q. And you knew that by 1991 or 1992 you had agoraphobia, panic attacks and depression, didn’t you?
A. Yes, well, yes.
Q. And you assert that they were caused by your relationship with your foster parents, do you not?
A. Yes.
Q. And you were of that view in 1991 or 1992, weren’t you?
A. Well, yes.”

40    These answers by the plaintiff in my opinion establish that as at 1992 she was aware of the causal connection between her psychiatric condition and what she asserts was the treatment meted out to her by her foster parents, the Borretts and the Department who placed her and kept her with them and in their departmental institutions. Such a conclusion means that the plaintiff then no longer satisfied the provisions of S.60 I(1)(a)(ii) and (iii) of the Act. On the basis of this finding of fact, her application would have to have been made within three years after she became aware of the causal connection, it being the last matter referred to in S.60 I(1)(a) of which she had knowledge or became aware. That would mean that her application should have been commenced by, at latest, about the end of 1995. It was made by a Notice of Motion filed on13 August, 1998. This is beyond the time provided for in s. 60 I(1)(b) and Schedule 5 Clause (4)(a). She therefore fails to satisfy the requirements of S.60 I.

41    In this context, it is relevant to note that in her affidavit sworn in support of the application, the plaintiff said that the visits to Dr. Gibson and Dr. Pryor in 1992 were “to substantiate” that she had agoraphobia. This evidence supports a conclusion that before her visits to these doctors she was not only aware of the symptoms she was exhibiting but also that they were manifestations of agoraphobia. The visits to the doctors were to confirm the diagnosis medically so as to support her application for a pension. That conclusion is relevant to the date at which she became, or was, aware of the nature and extent of her condition, that is, the personal injury she had suffered. (S.60 I(1)(a)(ii), (b)).

42    Counsel for the defendant submitted that the time for her application had in fact been fixed by 1973/74. By that time, he argued, the plaintiff was aware that she suffered from symptoms and of their extent, which were essentially the same then as they are now; was aware of the connection between those symptoms and the events that occurred during the time that she was in foster care with the Borretts and in Departmental institutions. Such a situation, so the argument ran, was sufficient to satisfy each of the matters listed in paragraph (a) (i) -(iii) and thus to fix the time at which the period of three years referred to in S. 60 I(1)(b) began to run.

43    In the course of her cross-examination, she was asked a series of questions about her state of knowledge and awareness in 1973 and 1974. As to this period she was asked:

Q. At the very least you knew that whatever was wrong with you had, at least in part, been caused by those events which you assert in your affidavit occurred while you were in the care of Mr and Mrs Borrett?
A. Yes.
…..
Q. Let’s try it another way. I may be able to make it easier. Can I take you to the beginning of 1974?
A. Yes.
…..
Q. By then you knew that there was something wrong with you, didn’t you?
A. I knew I wasn’t functioning very well, yes.
Q. And by the beginning of 1974 you knew that you weren’t functioning very well, because of, amongst other things, the circumstances in which you gave up your children to the Department in 1973?
A. Yes.
Q. Once you formed that view it will be fair to say that it didn’t change, did it?
A. No.
Q. That view had two components to it, from what you just said, if I can just summarise this and tell me if I am being unfair: That by the beginning of 1974 you knew that you weren’t functioning properly?
A. Yes.
Q. Because of the events which you assert occurred while you were in the care of the Borretts and the events which gave rise to your handing over your children to the Department in 1973; that’s a fair summary of just what you said?
A. Yes, most.
Q. And from that time what you have also just said, from 1974 until June 1978 that view didn’t change?
A. No.”
and
“Q. You continued to not function properly up to June, 1978, didn’t you?
A. Yes.
Q. And so by the time you saw Watkins Tapsell and Nolan in June, 1978, you knew that you weren’t functioning properly because of the events which occurred while you were in the care of the Borretts and of the events which gave rise to your giving your children to the Department in 1973 didn’t you?
A. Amongst other things
……
Q. What other things?
A. Institutionalisation and other things.
Q. What do you mean by institutionalisation? Being in an institution as opposed to a home. Is that what you mean?
A. Institutions, they are all institutions to me.
Q. What are institutions?
A. I know, by now I know they are not all institutions, but they are the words to me as a child. Like Bidura and that. They classify them in different ways but they are not homes, so they are institutions to me. And that’s part of it too, not just my children and Mrs. Borrett.

Q. Did you in your mind at that time, classify the Borrett house as an institution?
A. No. That was a family home.
Q. But the institutions were the places like ---
A. Bidura and Parramatta.
Q. Did the institutions include the Parramatta Training School?
A. Yes.
Q. So each and every place that you went while you were a ward of the State, from the early 1950’s until you were discharged from your wardship in 1971 were part of, in your mind, the reason you weren’t not functioning properly? Is that right?
A. Yes.
Q. That was the view that you had in 1973? That’s right isn’t it?
A. Yes.
Q. That was the view you had by the beginning of 1974?
A. Hhm, hhm.
Q. You nodded. Is that answer yes?
A. Yes.
….
Q. …. It was a view which you held in June, 1978?
A. Yes. “
and:
“Q. From 1973, from the beginning at least of 1974, is this a fair summary: You knew that you had a serious condition which was affecting your mind, which was in turn affecting, adversely, your level of functioning?
A. I didn’t know I had a condition. I just knew I felt these things. I didn’t know it was a condition, but I knew I felt those things, yes.

Q. You knew you felt these three things I have just described?
A. (Witness nodded).

Q. I‘m sorry, the answer is yes?
A. Yes.
and:

Q. Between 1973, when the condition which you described of not being able to go outside the house and the symptoms associated with going outside the house occurred and commenced, your condition did not improve from that date until June, 1978. Did it?
A. Didn’t improve.

Q. No?
A. No.

Q. Did it get any worse in that time or did it remain pretty static?
A. About the same, I think. I don’t know. I am not sure.

Q. And it remained pretty much the same right through to when you first saw Dr. Pryor did it not?
A. Yes.

and:
Q. You blamed your reduced level of functioning also upon what occurred to you in the institutions we discussed before as well?
A. Yes.

Q. And you blamed your reduced level of functioning on each of those things or a combination of them, didn’t you?
A. Yes.

Q. And to that extent, and I am talking about what was going on in your mind, you believed that there was a relationship between your reduced level of functioning in 1973 and what occurred while you were in the care of the
Borretts, in the institutions we have talked about and the circumstances in which you gave up your children to the Department in 1973, didn’t you?
A. Yes.”

44    I am satisfied that certainly by 1974 and probably by a date in 1973 which cannot be fixed, the plaintiff was not only aware of her condition, but also that it was abnormal and unhealthy, although she probably did not then know the precise medical term or terms for that condition. By these dates she was, sadly, only too well aware of the extent of her condition and I am satisfied that she was aware, in the sense that she herself believed it to be so, of the connection between her condition and the events that she claims occurred whilst she was with the Borretts in foster care, in institutions conducted by the Department and as a result of the circumstances in which she gave up her children to the Department in March, 1973.

45    In view of these findings, in order to succeed in an application for an extension of the limitation period the plaintiff would have to have made her application even before 1995. Not to have done so is, in my opinion, fatal to her present application.

46 The findings that I have made in relation to the plaintiff’s knowledge and awareness and the date on which she made her application for an extension of the limitation period, are sufficient to dispose of the present application. However, since the matter has been very fully argued and may well be the subject of an appeal, I think it is appropriate that I deal with the matters relevant to the application of S.60 G of the Limitation Act, 1969.

Section 60 G

47    The principles and considerations applicable to a decision as to whether it is just and reasonable to extend the limitation period have been set out previously in this judgment. In my opinion, it would be unlikely that the trial of the action, should it proceed, would be fair to the defendant. For the reasons that I set out hereafter, I think it probable that the defendant would not be able properly to defend itself at such a trial. At its very lowest, that there is a significant chance that this would be so is virtually certain. In my opinion, not only is the defendant the subject of the presumptive prejudice that McHugh and Dawson JJ. refer to in Brisbane South Regional Health Authority v. Taylor (supra at 555) but it has shown to my satisfaction that it would suffer actual prejudice, and that it would be of a material and significant kind in the conduct of its defence. Material witnesses are dead; other material witnesses cannot be located; departmental files have either been destroyed in accordance with the provisions of the Archives Act or otherwise and others material to the matters raised by the plaintiff cannot be found; educational and medical records that did or must have existed are no longer in existence or able to be found; the recollection of some material witnesses is now either non-existent (even though prompted by contemporaneous material) or in the case of other witnesses and in relation to a number of events alleged by the plaintiff, is non-existent or deficient. Even the plaintiff claims she is unable to remember a number of matters properly the subject of examination in any trial. The lateness of the propounding of the claim by the plaintiff means that medico-legal opinions formed by experts retained by the defendant will be subject to the criticism that those opinions are weakened by the remove in time from the events said to ground the plaintiff’s disabilities. This is of particular significance in a case in which there is a complex interplay between events which preceded the wardship of the plaintiff, events which occurred during that wardship and events which occurred after it had come to an end. Clearly, there were crises in the plaintiff’s life after she ceased to be a ward of State. Her unsuccessful, and allegedly brutalising marriage and the events associated with it; the attempts, unsuccessful over a long period, to recover custody of, or have access to her own children; her activities or occupation for a period and a number of other factors make the assignment of causes to effects in relation to her present condition, “very difficult to give accurate answers … There are so many traumas of varying degrees”, as Dr. Jurek said.

48    At least four material witnesses are known to be dead. They are Mr Borrett, who has been referred to earlier in this judgment. Specific allegations are made against him. In addition he would, had be been alive, have been in a position to give evidence of the general family circumstances and the situation of the children in the family home. Mr Warren McDonald, a former officer of the Child Welfare Department, is also dead. He is specifically referred to by the plaintiff in her affidavit in support of the application and was the District Officer of the Department who had what appears to be the most dealings with the plaintiff on behalf of the Department. Mrs Borrett’s mother and father, with whom the plaintiff resided on two occasions and who might reasonably be expected to give evidence of the family circumstances of Mr and Mrs Borrett, are also dead.

49    Witnesses who cannot be found include departmental psychologist, N Boorman, who assessed the plaintiff in September 1963 and whose report is relied upon by the plaintiff; Mrs Crowle, at whose home the plaintiff was employed and in respect of which she complains; Barry Lester Naish, the plaintiff’s former husband who is alleged by the plaintiff to have brutalised her and to have deserted her leaving her with two children whom she then gave up for adoption; Miss H I Gregson, who was an Acting Placements Officer with the Department and to whom the plaintiff made certain allegations concerning her foster father which were far in excess of the single event to which she deposed in her affidavit and to whom she assigned her time at the Bidura Institution as “where all her troubles started in 1963”.

50    Mrs Borrett is now 76. Her health is such that she may not be able to attend court to give evidence. In any event her recollection is, in a number of respects, deficient. The recollection of the plaintiff’s foster brother, David Borrett, is such that he is unable to recall matters specifically alleged by the plaintiff. The same is true in respect of her foster sister, Diane Mary John. Mr Milson, a departmental officer against whom very serious allegations are made concerning the circumstances surrounding the giving up by the plaintiff of two of her children for adoption, has no independent recollection of the plaintiff whatsoever. Indeed, despite reading the plaintiff’s affidavit and such files as could be retrieved, his recollection was not refreshed. The absence of any complaint at a time when notes could have been made or events marked or noted in the mind has meant that his recall is much less than it might otherwise have been. Lois Judd, another departmental psychologist who retired in 1988, despite reading her reports and those of her colleagues likewise has no independent recollection of the plaintiff or events of which the plaintiff now complains or which surround such events and may give them colour or context.

51 Records from both junior and senior schools attended by the plaintiff cannot be located. These could be material to the issues of attendance, attitude, aptitude and behaviour of the plaintiff in her pre-pubertal period, as well as during and after puberty. Similarly, a number of hospital records, some of which are material to the state of the plaintiff following birth or loss of a child, cannot be located at this remove in time. These are likely to be relevant to the condition of the plaintiff and to the cause or causes of such condition. A number of departmental files are not able to be located. These include the plaintiff’s own file containing correspondence and notes of meetings with her while she was in the care of the Department. Records from the departmental institutions have been destroyed under a disposal recommendation pursuant to the Archives Act 1960.

52    he prejudice to the defendant due to delay is actual. It is material and significant. It cannot be overcome. The discretion to extend the limitation period, even if the conditions or bars or gateways in S.60I were satisfied, crossed or passed through, should not in my opinion be exercised in favour of the plaintiff and I decline to so exercise it.

CHILD WELFARE ACT

53 The matters considered above are determinative of the plaintiff’s application. However, the defendant raised a further matter of prejudice. The defendant claims that had the plaintiff commenced her action within the period provided for in the Limitations Act, 1969 or within six years thereafter, the defendant in the action would have had the benefit of a defence under Section 158 of the Child Welfare Act, 1939 that is now not available. That section provides:

“1. No suit or action shall lie against the Minister or any officer or employee of the Child Welfare Department for or on account of any act, matter or thing done or commanded to be done by him, and purporting to be done for the purpose of carrying out the provisions of this Act if the Minister or the officer or employee had acted in good faith and with reasonable care.

2. No suit or action as aforesaid shall be commenced but within six months after the alleged cause of action, or, in the case of a suite or action by a person who has been a ward, but within six months next after the absolute discharge of such ward, or, in the case of a suite or action by a person who has been transferred to an institution pursuant to Section Ninety Four of this Act, but within six months next after the discharge of such person.

3. Proceedings in such action or aforesaid may, on application to the Court in which the suite or action was commenced, be staid upon such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that there is no reasonable ground for alleging want of good faith or reasonable care, or that the suite or action was commenced after the expiration of the six months aforesaid.”

54 The Child Welfare Act, 1939 was repealed on 29 May, 1987 by the Children (Care and Protection) Act, 1987. That Act contains no provision which is the equivalent of Section 158 of the Child Welfare Act, 1939.

55 Under the Child Welfare Act, 1939 the Minister is constituted the guardian of every child or young person who becomes a ward. The Minister’s guardianship is to the exclusion of the natural parents and continues until the child or young person ceases to be a ward. (S.9(1)). By virtue of an amendment to the Child Welfare Act (Act No.60 of 1970) which was assented to on 13 November, 1970 and commenced on 1 July, 1971, the guardianship of the Minister was terminated in respect of a ward who attained the age of eighteen years. Where at the time of the commencement of the amending Act a ward was aged eighteen years or more, the guardianship of the Minister in respect of such ward terminated on the commencement of the amending Act. The plaintiff was twenty at the time the amending Act came into force and if she had not been discharged from guardianship prior to that time, as she says to have been the case, she ceased to be in the guardianship of the Minister on 1 July, 1971. By that time she was already married, this having occurred on 14 May, 1971 and may well have had her guardianship terminated at that time. Since there are only some seven weeks between these two dates, the difference is not material.

56 The Child Welfare Act, 1939 provides that the care of the person of all wards is committed to the Minister except during any period when such wards were inmates of an institution or were boarded out or placed as adopted boarders with foster parents. (S.10). The Minister is given authority to board out or place as an adopted boarder any ward, to approve of persons applying for the custody of wards and of the homes of such persons, to arrange the terms and conditions of custody of any ward and to direct the removal or transfer of any ward other than a ward who had been committed to an institution for a specified term. (S.23(1)(d), (e), (f) and (g)). Under the Act “boarded out” means that a child is placed in the care of a foster parent for the purpose of being maintained in such person’s home (S.4).

57 By Part VII the Minister was originally given power to license day nurseries and kindergartens and any place used for the reception of one or more children under the age of seven (S.28). In 1965 these powers were extended, but the expanded powers still resided in the Minister. Parts VIII (Lying-in Homes), IX (Mentally Defective Children) X (Institutions), XII (Maintenance of Children by their Relatives), XIII (Employment of Children), XVI (Affiliation Proceedings) all confer powers and functions upon the Minister. Indeed a review of the Child Welfare Act, 1939, both as originally enacted and as subsequently amended, reveals that most things authorised to be done, functions to be performed, powers that could be exercised and decisions that could be made in relation to persons the subject of the Act, including wards of the State, were to be done, performed, exercised or made by the Minister. The Minister was given a power to delegate all or any of the powers conferred by Section 23(1) to a specified officer (S.23(3)) but the delegation was revocable at any time, and did not extend to authorising the discharge of a ward from an institution. Any powers exercised by a departmental office pursuant to that section were clearly exercised only as delegate and on behalf of the Minister.

58 Because of the structure of the Child Welfare Act, S.158 is in the form set out above. However, as at the date of enactment of the Child Welfare Act, 1939, the Minister was not a body corporate or able to be sued by that name. Any action would have been against the Government. Such actions were governed by the Claims Against the Government and Crown Suits Act, 1912. The procedure under that Act involved the appointment of a nominal defendant, who would be able to raise all defences which were open to the Government (S.4). That Act was repealed by the Crown Proceedings Act, 1988 (S.9) and, thereafter civil proceedings against the Crown in right of the State could be brought against the “State of New South Wales”.

59 In view of these provisions, if an action had been instituted prior to the commencement of the Children (Care and Protection) Act, 1987 against the State of New South Wales on account of some act, matter or thing done by the Minister for the purposes of carrying out the provisions of the Act, whether done personally or through a delegate or through subordinate officers, the nominal defendant representing the State of New South Wales as the entity sued in consequence of the acts, matters or things done or omitted by or on behalf of the Minister, would have been able to raise a defence under S.158.

60 However, that the defendant in the present proceedings has, since 1987 (when the Child Welfare Act 1939 was repealed) been deprived of a defence under S.158 of the Act, may not be of significance for two reasons:

(1) The problem of the use of a defence in an action for negligence;
(2) Whether it would be pleaded in any event.

61    As to (1) it should be remembered that in Roberts v Hopwood [1925] AC 578 at 603 Lord Sumner said, when dealing with a question of good faith in respect of administrative action:-

“Firstly, the final words of the section are not absolute, but are subject to an implied qualification of good faith – ‘as the board may bona fide think fit.’ Is the implication of good faith all? That is a qualification drawn from the general legal doctrine, that persons who hold public office have a legal responsibility towards those whom they represent – not merely towards those who vote for them - to the discharge of which they must honestly apply their minds. Bona fide here cannot simply mean that they are not making a profit out of their office or acting in it from private spite, nor is bona fide a short way of saying that the council has acted within the ambit of its powers and therefore not contrary to the law. It must mean they are giving their minds to the comprehension and their wills to the discharge of their duty towards that public, whose money and local business they administer.”

62    In Lamont v Wyong Shire Council (New South Wales Supreme Court, unreported, 13 December 1991), Palmer AJ expressed a similar view in respect of an action taken against the local council in relation to flooding. He said, when considering a defence of good faith that was open to the council in that case:

“What is necessary to destroy the protection (of good faith) … is a lack of honest endeavour to undertake a task in which the council has the responsibility of (at 5-6).”

63    Davies J in Main Developments Pty Ltd v Rockdale Municipal Council (1992) 79 LGERA 30 came to the conclusion that in relation to the local council that had a defence in respect of actions that, although done negligently, were done in good faith, two criteria were required. First that the act had to be done bona fide, that is not maliciously or for ulterior purposes, secondly, there should be a genuine attempt to perform the function correctly (supra at 43)).

64 Whilst the Department in the present case may well be able to rely upon good faith under S.158, the second matter to which I have adverted, namely that of reasonable care, raises issues similar to those raised by the action itself and thus in a sense the defence is circular. It succeeds if it is not demonstrated they was a lack of reasonable care. But the action has already failed because the tort of negligence has not been established. Secondly, in relation to this particular defence, even prior to the repeal of the Child Welfare Act 1939, it may well not have been relied upon by the government because of changes in social conditions and attitudes. These changes are reflected in the Act that replaced the Child Welfare Act 1939, particularly by the absence of any provision similar to S.158 in the replacing Act.

65    In my opinion, the foregoing considerations mean that any element of prejudice in this matter standing alone would not have any weight. Its presence or absence does not result in any conclusion different from that which has already been arrived at in this matter, without regard being had to the statutory ground of defence.

NOTICE OF MOTION TO AMEND STATEMENT OF CLAIM

66    On the first day of the hearing an application to amend the Statement of Claim was foreshadowed. Consideration of this was deferred until later in the hearing. The Notice of Motion filed merely sought an amendment of the Statement of Claim. However, the proposed amendments were later formulated as follows:

“1. Paragraph 10
Further and in the alternative the defendant owed to the plaintiff a fiduciary duty by reason of the relationship between them of guardian and ward.
2. Paragraph 11
The defendant breached its fiduciary duty to the plaintiff.
Particulars of breach of fiduciary duty
The plaintiff repeats the particulars set out in paragraph 5 (i) - (xii) inclusive above.
3. By reason of the defendant’s breach of fiduciary duty the plaintiff has suffered loss and damage.
Particulars
The plaintiff repeats the particulars set out in paragraphs 6,7 8 and 9 hereof.”

67    In the course of her address in reply counsel for the plaintiff proposed a further amendment as follows:

“2A. By reason of the relationship which existed between the plaintiff and the defendant (as stated in the preceding paragraph) the plaintiff was, during the period of that relationship and in the several years following, reliant and dependent on the plaintiff for care and advice as to her well being.”

68 As already stated, the Statement of Claim was filed on 17 July, 1998. No defence has been filed and as a consequence of Part 15 Rule 22 of the Rules of Court the pleadings were deemed to have closed 28 days after the filing of the Statement of Claim, given that no other pleadings had been filed in that time. As a consequence, the provisions of Part 20 Rule 2(1), which obviate the necessity for leave to amend in certain cases, do not apply. It is no doubt because of these considerations that the Notice of Motion was filed in Court.

69 The amendment proposed by the plaintiff asserts a fiduciary relationship arising out of the statutory guardianship of the plaintiff by the Minister while she was a ward of the State, i.e. between 1952 and 1971. The further proposed amendment (para. 2A) goes beyond 1971 to encompass matters which occurred outside the period covered by the fiduciary duty alleged. The factual content of paragraph 2A is not known, except to the extent that it may relate to events leading to the plaintiff giving her two children up to the Department for adoption in or about March, 1973. The fiduciary duty is claimed to have been breached and equitable compensation is sought. Such a claim is not barred by the Limitation Act, 1969 (S.23), except insofar as the time bar provided by S.14, namely six years, may be applied by analogy. Whether it can be applied by analogy to a claim of the kind sought to be propounded by the plaintiff in her amendment is unclear. It is clear that the new claims proposed by the plaintiff are “in substance different” (O’Grady v. Botany Wools (Aust.) (1964) SR 359 at 364 per Walsh J.) from the claim originally pleaded. The original claim is a claim in negligence at common law. The proposed amended claim is an equitable claim based and consequent on a fiduciary duty. The difference in substance between the two claims was highlighted in Williams v. The Minister (supra) by Kirby P who said:

“… it is a mistake of law to assume that an equitable claim, based on an equitable cause of action, not for damages but for equitable compensation, is to be dealt with under S.60 G of the Limitation Act. It is not. It raises separate and different questions. Nor can the application of the Act ‘by analogy’ lead to the automatic application of s.60 G to such a claim. Analogous application of the statute does not necessarily mean exact application of its terms. The considerations that may be relevant to a defence of laches will be different from (not exactly the same as) the considerations relevant to the application of the Act.” (at 509)

70 The approach to the equitable defence of laches acquiescence and delay is not the same as the approach mandated by authority in relation to an extension of time under s.60 G of the Limitation Act. The statute requires that it be just and reasonable to extend the Common Law period of limitation. In Equity relief will be refused on the ground of laches where the plaintiff’s delay would make it unjust to grant the relief which he seeks (Equity Doctrines & Remedies, Meagher, Gummow and Lehane para. 3605). The defence of laches as a bar to relief in Equity depends upon principles substantially equitable. The length of the delay and the nature of the acts done during the interval, which might affect either party or others and cause a balance of justice or injustice in taking the one course or the other, are important so far as these circumstances relate to the remedy sought (Lindsay Petroleum Co. v. Hurd (1874) LR 5PC 221 at 239-240. In applying equitable principle to the defence of laches, the length of the delay, the nature of the acts done during the interval, the nature of the right claimed and the property in which it is claimed must be considered (Boyns v. Lackey (1958) 58 SR (NSW) 395 per Hardie J.) Whilst delay itself is not a defence, the length of any delay is evidence of assent or acquiescence (Life Assurance of Scotland v. Siddal (1861) 45 ER 800 at 806.

71 The test in relation to the exercise of discretion under S.60 G of the Limitation Act, as propounded in Brisbane South Health Authority v Taylor (supra) and as interpreted in Sydney City Council v. Zegarac (supra), does not appear to have been applied or referred to in relation to the defence of laches acquiescence or delay to an equitable claim.

72    In Williams v. The Minister (supra) the claim for equitable relief was included in the original Statement of Claim filed on behalf of the plaintiff (supra at 499-500). Therefore the question of the justice of adding such a claim by amendment to an existing statement of claim was not considered. If the amendment to the existing Statement of Claim in the present matter were to be allowed and the reasoning of Kirby P in Williams v. The Minister, namely: “The fact that the claim for equitable compensation could not be disposed of but would (peremptory relief apart) be required to proceed to trial would itself be a consideration relevant to the determination of what it was ‘just and reasonable’ to do in respect of the causes of action in tort” (supra at 510) applied, the defendant would have to face the trial of an action based on common law negligence and a claim for equitable compensation. To the claim for equitable compensation the defence of laches would be able to be raised, but no defence based upon time or delay or adverse circumstances arising out of such delay could be pleaded by the defendant in respect of the common law claim. To allow the amendment may thus have the effect of depriving the defendant of the bar to the common law claim otherwise be open to it. This would be real prejudice to the defendant. To allow the introduction of a new cause of action which has this effect is not in accordance with the ordinary notions of justice.

73    One of the possibilities arising from a situation in which the amendment was allowed, would be that the plaintiff could fail on her claim for equitable compensation because of laches, but could succeed on her claim based on common law negligence because delay would not be a defence available to that claim. Such an outcome would be clearly prejudicial to the defendant.

74    The prospect of the claim at common law, which is barred by the Act and should not, as has already been decided, be enlivened by extension of the limitation period, being kept alive by an equitable claim that could fail because of laches and delay does not seem just. It is almost a case of the tail wagging the dog.

75    On the other hand, if the amendment is refused, the plaintiff still has as viable an equitable claim for compensation as she would have had if the existing Statement of Claim had been amended. Moreover, the defendant in any such proceedings would then have to face only such allegations of fact as were held to fall within the ambit of any fiduciary duty or duties that may be found to exist. This could result in a shorter trial of the action since the basis of fiduciary duty as originally pleaded ended, at latest, by mid-1971. True it is that the proposed amendment in paragraph 2(A) relates to dates beyond 1971 and is couched in terms that are dependent upon and arise out of the fiduciary relationship which is pleaded as having come to an end in 1971, but such a claim is clearly novel and, without expressing any view in relation to its viability, could well be struck out.

76    In my opinion, the plaintiff is not prejudiced in pursuing her right to equitable compensation rights if the amendment is refused. However, if the amendment is allowed the defendant could be deprived of the benefit of the time bar because of the prospect of the time limitation being then extended, on the basis there was going to be a hearing of the matter in any event. This, on the reasoning of Kirby P in Williams v. The Minister, would:

“At the least … be a matter relevant to the exercise of the discretion under S.60G (2)” (supra at 511).

77    Indeed, in that case, Kirby P determined that the trial judge in the matter had erred and that the time should be extended “taking into account the concurrent claim for breach of fiduciary duty” (at 515). As I have said that was a case in which the equitable claim had already been propounded in the Statement of Claim as filed. It was not a case in which an amendment to the statement of claim was sought.

78    These matters are, in my opinion, relevant to the exercise of the discretion which exists in relation to the granting of an amendment. They demonstrate that allowing the amendment would give rise to real, significant, indeed serious, prejudice to the defendant. On the other hand, refusing the amendment would not prejudice the plaintiff in relation to her claim for equitable relief. It would remain just as viable; no more, no less.

79    On weighing the respective prejudices to the plaintiff and the defendant, I am firmly of the opinion that the prejudice to the defendant in allowing the amendment far outweighs the prejudice to the plaintiff in refusing the amendment and leaving the plaintiff to pursue her equitable action separately. Accordingly, the amendment is refused.

80    At the conclusion of the hearing of this matter, I asked counsel for the defendant to take instructions from the State of New South Wales in relation to the defendant’s attitude to the question of costs. The plaintiff, as I have already said, has had a hard and sad life. In view of her desire to externalise her life and to have some of its adverse consequences met by the present action, the failure of the present action will undoubtedly be a great disappointment and cause for sadness to her. To crush her by ordering costs would seem to compound the situation. I have been advised by counsel for the defendant that he has taken instructions and that his instructions are that the defendant does not seek costs against the plaintiff.

81    For the foregoing reasons, the extension of time sought by the plaintiff is refused. The amendments proposed to the Statement of Claim are refused. With the acquiescence of the defendant I make no order as to costs.

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Last Modified: 09/26/2000