Yang v New South Wales Land and Housing Corporation

[2024] NSWSC 428

Supreme Court

New South Wales

Medium Neutral Citation:

Yang v New South Wales Land and Housing Corporation [2024] NSWSC 428

Hearing dates:

25 and 26 March 2024; 11 April 2024

Decision date:

23 April 2024

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) The plaintiff was not under a disability for the purposes of s 52 of the Limitation Act 1969 (NSW) between 9 March 2013 and 13 August 2019 for a period of at least 28 days;

(2) Noting that the plaintiff’s statement of claim was filed on 13 August 2019, the plaintiff’s further amended statement of claim, filed on 7 September 2020, is statute-barred pursuant to s 14 of the Limitation Act 1969 (NSW) and the proceedings are dismissed;

(3)    The plaintiff is to pay the costs of the defendant.

Catchwords:

LIMITATION OF ACTIONS – Limitation Act 1969 (NSW), ss 11, 52 – suspension of limitation period – whether plaintiff under relevant disability – restraint of plaintiff’s person – mental impairment – whether impairment rendered plaintiff incapable of, or substantially impeded in, managing his affairs in relation to initiating proceedings to initiate cause of action – whether statement of claim statute-barred

Legislation Cited:

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

Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Residential Tenancies Act 2010 (NSW), Pt 6 Div 2

Cases Cited:

Binetter v Binetter (2022) 409 ALR 1; [2022] NSWCA 169

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

Karaagac v GRE Insurance Limited [1989] NSWCA 116

Yang v New South Wales Land and Housing Corporation [2020] NSWSC 1925

Yang v New South Wales Land and Housing Corporation (No 2) [2021] NSWSC 1647

Yang v New South Wales Land and Housing Corporation [2023] NSWSC 84

Category:

Procedural rulings

Parties:

Yan Lim Yang (Plaintiff)
New South Wales Land and Housing Corporation (Defendant)

Representation:

Counsel:
Mr A Strik (Plaintiff)
Mr A Bhasin (Defendant)

Solicitors:
Ayoub Lawyers (Plaintiff)
Minter Ellison (Defendant)

File Number(s):

2019/251487

JUDGMENT

1. HIS HONOUR: By an amended notice of motion filed on 17 December 2020, the defendant sought a determination pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), in advance of the substantive hearing of the plaintiff’s further amended statement of claim (FASOC), of whether the plaintiff was under a disability within the meaning of ss 11(3) and 52(1)(c) of the Limitation Act 1969 (NSW) in one or more of three periods of time. This determination was relevant to overcome what would otherwise be a dismissal of the FASOC, on the basis that it was filed outside the relevant limitation period, contrary to s 14(1)(b) of the Limitation Act.

2. Pursuant to orders made on 23 December 2020 by Cavanagh J, this is the separate determination of that question: Yang v New South Wales Land and Housing Corporation [2020] NSWSC 1925.

Relevant legislative provisions

3. The applicable limitation period for the plaintiff’s cause of action is six years, which is set by s 14(1)(b) of the Limitation Act:

“14   General

(1)   An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims—

…

(b)   a cause of action founded on tort, including a cause of action for damages for breach of statutory duty”

4. Section 52 of the Limitation Act provides that the limitation period may be suspended for periods when the plaintiff was under a disability:

“52   Disability

(1)   Subject to subsections (2) and (3) and subject to section 53, where—

(a)   a person has a cause of action,

(b)   the limitation period fixed by this Act for the cause of action has commenced to run, and

(c)   the person is under a disability,

in that case—

(d)   the running of the limitation period is suspended for the duration of the disability ...

(2)   This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period.

(3)   …”

5. As to the meaning of the term “disability”, s 11(3) of the Limitation Act relevantly provides:

“11   Definitions

…

(3)   For the purposes of this Act a person is under a disability—

(a)   …

(b)   while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of—

(i)   any disease or any impairment of his or her physical or mental condition,

(ii)   restraint of his or her person, lawful or unlawful …”

The background to the application

6. This matter first came before me, sitting as the Common Law Duty Judge, in late 2022 as a subpoena issue concerning the production of certain documents: Yang v New South Wales Land and Housing Corporation [2023] NSWSC 84 (the subpoena judgment). The plaintiff’s filings in the case have included numerous missteps in the asserted facts and periods of disability.

The statement of claim

7. On 13 August 2019, the plaintiff filed a statement of claim seeking damages from the defendant in tort for breach of a duty of care as the owner of the premises, and voluntary bailment, and/or conversion, in respect of certain antiques, which he claimed had an “estimated value” at the time of $1,051,586 (the goods). He was represented by AJB Stevens Lawyers (AJB) at the time.

8. The plaintiff pleaded that “in or about 2000”, he entered into a residential tenancy agreement (the lease) with the defendant to occupy an apartment in Kingswood (the premises), which he did until December 2012. In about that month, he travelled to the People’s Republic of China (the PRC) for a holiday, intending to be there for a period of 35 days. However, in January 2013, while still in the PRC, he was arrested and “incarcerated” until about June 2013.

9. He further pleaded that on about 16 January 2013, he informed the defendant in a telephone call that he had been incarcerated in the PRC. On about 13 February 2013, the defendant entered the premises and removed the goods, without the plaintiff’s knowledge or consent. On 19 February 2013, ^[1] the defendant auctioned the goods, for which it received a sum of $1,421.13. The plaintiff returned to Australia in about June 2013. On about 14 August 2013, he discovered that the defendant had removed and sold the goods.

   1. Both the Statement of Claim and Amended Statement of Claim pleaded the date of sale as 19 February 2019. However, the year 2019 is inconsistent with other pleadings filed by the plaintiff and thus was presumably a typographical error in both documents.

10. The plaintiff pleaded that the defendant, as the owner of the premises, had a duty “to use reasonable care to avoid foreseeable risk of harm to the lessee having regard to all of the circumstances of the case”. Further or alternatively, that on taking possession of the goods, the defendant became a voluntary bailee of them. The plaintiff sought damages in negligence for the defendant’s breaches of duty as the owner of the premises and as the bailee of the goods and/or in conversion, in the sum of the difference between the auction price and their value.

The amended statement of claim

11. On 2 March 2020, the plaintiff filed an amended statement of claim, the only amendment being of a technical nature, concerning the defendant’s Australian Business Number (ABN).

The defence to the amended statement of claim

12. On 18 March 2020, the defendant filed a defence to the amended statement of claim. It pleaded that the plaintiff and defendant entered into the lease in respect of the premises, which commenced on 11 February 2002. From about April 2012, the defendant was aware that the plaintiff was not paying rent and was not occupying the premises. His whereabouts were unknown to the defendant until about December 2012. The defendant sent the plaintiff a letter dated 15 January 2013 in accordance with Pt 6, Div 2 of the Residential Tenancies Act 2010 (NSW) (since repealed). The defendant admitted the occurrence of a phone conversation with the plaintiff the following day, in which they “discussed the issue of the goods left at the premises and the plaintiff told the defendant that there was nothing of value at the premises”. On 7 February 2013, the defendant sent an email to the plaintiff advising him that his tenancy had been terminated by an order made by the Consumer Trader and Tenancy Tribunal on 24 January 2013.

13. The defendant arranged for John Swanton of Combined Valuers to remove and auction the goods at a public auction. To that end, on 4 and 13 February 2013, Mr Swanton visited the premises to inspect and value the goods. On 19 February 2013, Mr Swanton attended the premises to remove the goods for auction and discovered that since his visit on 13 February, many goods present at the premises had been stolen “by an unknown person or … persons”. Mr Swanton removed “certain goods remaining at the premises” and auctioned them on 9 March 2013. The defendant received $1,421.13 from the proceeds of the remaining goods at the auction, which partly offset a debt of back rent owed by the plaintiff.

14. The defendant asserted that the plaintiff’s causes of action, if any, had accrued by no later than 9 March 2013, being the actual date of the auction, which was more than six years before the plaintiff commenced the proceedings, and therefore his claim was statute-barred by s 14(1) of the Limitation Act.

The defendant’s notice of motion filed 19 March 2020

15. The following day, the defendant filed a notice of motion seeking that the proceedings be summarily dismissed or struck out, one of the bases being that the proceedings had been brought out of time.

16. On 4 June 2020, AJB wrote to the defendant’s solicitors advising that, whilst drafting the plaintiff’s response to the notice of motion, it became aware of a conflict of interest that obliged it to cease to act in the matter.

17. The plaintiff engaged new legal representatives, Ayoub Lawyers (Ayoub). On 23 June 2020, Ayoub wrote to the defendant’s solicitors, stating that:

“The Limitation point will be addressed by reference to the Plaintiff's incarceration in China and to his ongoing treatment as a psychiatric inpatient and outpatient during which time he was incapable of conducting his affairs.”

The further amended statement of claim

18. On 7 September 2020, the plaintiff filed the FASOC, amending the pleadings and particulars in relation to the breach of duty of care as owner and bailee, amending some of the dates of relevant events, and adding pleadings and particulars with respect to the nature and value of goods that the plaintiff had on the premises which were lost or otherwise dealt with in his absence. He pleaded that he departed for the PRC in “early 2012” rather than in December 2012 and that he was prevented from returning to Australia until “about July 2013”, returning in about that month. The plaintiff pleaded that he first became aware of the defendant having removed and auctioned the goods in “about mid September 2013”.

19. The plaintiff added four more items to the list of antiques that were in the apartment and adjusted their value, as at 4 February 2013, to $3,642,586. He pleaded that “most of the goods that were of substantial value were stolen from the premises” and that the goods removed by the defendant after the theft and auctioned by a third party on behalf of the defendant had a total value of approximately $1,300,000.

The defence to the further amended statement of claim (FASOC)

20. On 23 October 2020, the defendant filed a defence to the FASOC pleading various defences and maintaining that, in any event, the plaintiff’s claim was not actionable because it was brought outside the limitation period.

The plaintiff’s reply to the defence to the FASOC, alleging a disability

21. On 10 November 2020, the plaintiff filed a reply to the FASOC in which he alleged being under a disability:

“… within the meaning of section 52(1)(c) of the Limitation Act … from the date of his arrest in the PRC on 8 February 2012 until about 6 July 2013 when he returned to Australia or alternatively on 29 May 2013 when he was released from incarceration and his passport was returned to him in the PRC (‘the incarceration period’), that is for a period of 17 months or alternatively 15 months …”

22. The plaintiff pleaded that the earliest date that the limitation period could have commenced was the week that some of his goods were stolen from his premises, which was the week of 13 to 19 February 2013 and thus the action was not statute-barred, since:

“… [t]he earliest date upon which the limitation period could have expired is six years plus fifteen months from 13 February 2013, being July 2020.”

23. By letter dated 13 November 2020, that is, two days after the plaintiff filed his reply to the defence to the FASOC, the defendant wrote to the plaintiff, pointing out that on the basis of the dates pleaded, the maximum period of disability would have expired by 6 July 2019, which was one month and one week before the statement of claim was filed.

24. The plaintiff responded with a request for time to provide an amended reply “which will include further aspects of disability which were not included in the version filed and served”.

The plaintiff’s amended reply to the defence to the FASOC

25. On 15 December 2020, the plaintiff filed an amended reply to the defence to the FASOC (the amended reply) in which he maintained the first period of disability and added a second period, pursuant to ss 11(3) and 52(1)(c) of the Act:

“(iA)   … the Plaintiff was suffering from Major Depressive Disorder in between 1 March 2017 and 21 March 2019 (‘Depressive Disorder Period’).

(iB)   The Plaintiff was case managed in respect of his Major Depressive Disorder by St Vincent Community Health Centre between about 1 March 2017 to 19 July 2017.

(iC)   The Plaintiff was admitted to Lower North Shore Community Health in respect of his Major Depressive Disorder on about 19 July 2017 and discharge on 21 March 2019.

(iD) During the Depressive Disorder Period, the Plaintiff was incapable of, or substantially impeded in the management of his affairs in relation to the causes of action pleaded by the Plaintiff in these proceedings pursuant to Section 11(3) of the Act and thereby in under a disability within the meaning of Section 52(1)(c) of the Limitation Act.”

The orders of Cavanagh J, made on 23 December 2020

26. As noted, on 23 December 2020, Cavanagh J ordered that the question of whether the plaintiff was a person under a disability within the meaning of the Limitation Act, and whether the FASOC is statute-barred, be determined separately pursuant to the r 28.2 of the UCPR. His Honour set a timetable for the service of any “lay and expert evidence” by the parties. The plaintiff was to file such evidence by 26 February 2021. The potential periods of disability, within the meaning of ss 11(3) and 52(1)(c) of the Limitation Act, were identified in the orders as follows:

“(i)   between 8 February 2013 and 6 July 2013; and/or

(ii)   between 1 March 2017 and 21 March 2019; and/or

(iii)   between any such other periods between 8 February 2013 and 12 August 2019.”

27. The plaintiff did not comply with that timetable and ultimately served an expert report by Dr Oldtree Clark, a consultant psychiatrist, that it subsequently did not rely upon, for reasons that are unnecessary to canvass for the purposes of this application, and which were addressed by Dhanji J in Yang v New South Wales Land and Housing Corporation (No 2) [2021] NSWSC 1647. The plaintiff was permitted to rely upon a report obtained subsequently, by Dr Aman Suman, forensic psychiatrist.

The plaintiff’s second further amended reply to the defence to the FASOC

28. Dr Suman’s opinion in his report dated 8 November 2021 did not support the plaintiff’s pleading in his amended reply as to the dates of the second period of disability. By way of a second further amended reply to the defence to the FASOC filed on 15 December 2021, the plaintiff varied those dates to align with the period of disability identified by Dr Suman, which was between January 2014 and March 2017. The plaintiff submitted that the limitation period was suspended between 13 February 2013 to 6 July 2013 (a period of four months and 23 days) due to his incarceration in China and between January 2014 and March 2017 (a period of three years and three months) due to Dr Suman’s diagnosis of the plaintiff having a major depressive disorder in that period. Thus, the total period of disability was three years, seven months and 23 days.

The hearing on the question of disability

29. The evidence relied upon by the plaintiff comprised an affidavit sworn by him that was read at the hearing, together with his oral evidence, and the opinion of Dr Suman in three reports dated 9 November 2021, 21 March 2022 and 30 July 2023.

30. The defendant relied upon the opinion of Dr Patricia Jungfer, psychiatrist, in three reports dated 7 September 2021, 6 December 2021 ^[2] and 22 June 2023. All six expert reports were tendered on the basis that the histories provided by the plaintiff were not admitted as to their truth, with the exception of admissions against his interest. In their third reports, each expert considered the legal correspondence which became available following the subpoena judgment. Both psychiatrists were required for cross-examination.

    2. The second report is undated but follows an assessment on 6 December 2021. In evidence, Dr Jungfer explained that she completed her report the same day.

31. The parties tendered a joint expert report that was filed on 11 October 2023. The experts agreed that there was at least one occasion between 13 February 2013 and 28 March 2019 ^[3] when the plaintiff was:

“… incapable of, or substantially impeded in, the management of his affairs in relation to his causes of action articulated in his statement of claim in these proceedings against the defendant by reason of any disease or impairment of his physical or mental condition.”

3. It is not known why the experts were asked to opine on the period that ended on this date, rather than on the date directed by Cavanagh J of 12 August 2019.

32. Dr Suman was of the opinion that the plaintiff had a major depressive disorder that “caused substantial impairment in his ability to manage his personal affairs including dealing with complex legal matters from Jan 2014 to Mar 2017”, whereas Dr Jungfer’s opinion was that the only period of substantial impairment in managing his affairs was the week of 17 and 23 November 2016, when he was an involuntary patient in St Vincent’s Hospital.

33. The parties also tendered a joint chronology which set out their respective positions regarding the key dates relevant to this determination.

The legal correspondence

34. Correspondence between the plaintiff and his solicitors that was disclosed to the defendant pursuant to the subpoena judgment, and some medical records, were also tendered.

The Homeless Persons’ Legal Service (HPLS)

35. The legal correspondence between the HPLS and the plaintiff included the following:

1. A letter from the HPLS dated 6 June 2014 that referred to steps they have taken on behalf of the plaintiff “in accordance with instructions provided during our meeting” on 29 May 2014;

2. A letter from the HPLS dated 8 July 2014 that contained information and advice, and sought his instructions to further investigate the responsibilities of the defendant in the context of the issue;

3. A letter from the HPLS dated 14 July 2014 that referred to meetings with the plaintiff on 29 May, 19 June and 26 June 2014 and phone calls on 25 June and 2 July 2014. The letter summarised the plaintiff’s instructions as to his understanding of the fate of the goods and provided advice. The letter concluded with a request that he consider an enclosed draft letter to the defendant and “provide us with your instructions as soon as possible”.

36. Correspondence between the HPLS and the plaintiff continued through the balance of 2014, 2015 and until November 2016. On 9 August 2016, the plaintiff forwarded a statement by him in Mandarin to the HPLS by email. On 29 August 2016, the HPLS sent him a translation of the statement. In his statement, he referred to specific items that had been auctioned and provided some information as to when he obtained the item and his understanding of its market value. In respect of each item, there is an observation in identical terms, that appears to have been copied and repeatedly pasted, in which he states that he disagrees with the valuation by Mr Swanton and that he requires the courts to “arrange for a fair appraisal of the value of my collection of Chinese artifacts”.

AJB Stevens Lawyers, and continuing involvement of the HPLS

37. An email addressed to the plaintiff from a solicitor at AJB (the plaintiff’s AJB solicitor), dated 12 September 2016, informed him: “I have spoken to a barrister about your matter. We are prepared to take your matter on. Can you come to my office this Wednesday at 9.30am”. The plaintiff replied approximately two hours later, stating: “Thank you for that kindly arrangements. I will be come to you on time”. Later that day, the plaintiff’s AJB solicitor wrote again to him, requesting that he bring with him various relevant documents.

38. A letter from the plaintiff’s AJB solicitor addressed to the HPLS, dated 28 September 2016, requested the transfer of his file.

39. A letter from the HPLS to the plaintiff dated 13 October 2016, referring to a phone call with him on 7 October 2016, enclosed a copy of his AJB solicitor’s letter to the HPLS dated 28 September 2016. The author stated:

“As discussed in our 7 October 2016 call, please could you also confirm your instructions on whether you would like us to continue acting on your behalf in relation to your matter.”

40. On 17 November 2016, which I note was the date that the plaintiff was involuntarily admitted to St Vincent’s Hospital with mental health issues, the HPLS forwarded to him a seven-page detailed advice on his prospects (the prospects advice), which advised that he make an offer to the defendant to settle for an amount of $15,300. The opening paragraph of the advice refers to multiple recent conferences:

“We refer to:

(a)   our telephone calls with you on 28 July 2016, 2 August 2016 and 20 October 2016; and

(b)   your meeting with Homeless Persons Legal Service (HPLS) lawyers at the Edward Eagar Lodge (the Lodge) on 4 August 2016, 25 August 2016, 8 September 2016, 13 October 2016 and 3 November 2016.”

41. Paragraph 6 of the advice is in the following terms:

“We have advised in our previous correspondence with you that you may have a claim against the Corporation and HSNW comprising a cause of action in tort and/or breach of contract. We have also advised you that the time limit for making any such claim for the loss of items stolen from your property was 6 years from the date your claim would have accrued, being 4 February 2013 (see, eg, our 26 November and 14 April 2016 emails). This means that you must make your claim against the Corporation and HNSW by 5 February 2019.”

42. The advice included a comprehensive review of correspondence and conferences with the plaintiff between 18 September 2014 and 9 August 2016.

The evidence of the plaintiff

The plaintiff’s affidavit dated 20 July 2020

43. The plaintiff stated that he was born in China and that his native language is Mandarin, English being a second language. When he travelled to the PRC in about January 2012, he left in the premises a collection of antiques that he had “collected over many years, or inherited from my parents”, including 11 pieces that had a combined estimated value of $3,100,000. He had intended to return to Australia and to the premises in about five weeks.

44. On about 8 February 2012, while still in the PRC, he was arrested for what he believed to be political reasons, on a charge of smuggling sandalwood. He was held in prison until about 15 March 2012, when he was granted bail. His passport was not returned to him. He said:

“18   I was re-arrested for questioning on numerous occasions over the following year or so. That questioning was always about what I had said about the Chinese Communist Party. I was held in jail during these interrogations.

19   [In] about mid May 2013, I was advised that my charges had been dropped and that my passport would be returned.

20   My passport was returned to me on about 29 May 2013. As my PRC Visa had expired, I had to apply for a new one as I could not leave the PRC unless I had a current unexpired Visa. I left the PRC and returned [to] Australia on about 6 July 2013.” (

45. The plaintiff said that in about December 2012, he phoned the defendant’s office and told a staff member: “I am in China. I’ve been jailed. They’ve taken my passport”. He said he did not know when he would be back. The staff member told him: “You need to pay your rent.” He told the staff member that Centrelink normally paid his rent, but he thought they had stopped payments because he was overseas. The plaintiff said to the staff member: “Please give me your bank details and I will organise payment”. The staff member asked: “When will you be back?” The plaintiff said he did not know, and the staff member hung up, without giving any bank details.

46. When the plaintiff returned to Australia in July 2013, his keys did not operate the lock on his unit. He visited the defendant’s office the same day and thereafter repeatedly to speak to someone about the premises, without success, and was homeless. While the plaintiff was residing in Edward Eagar Lodge in August 2013, which I note is an accommodation service for homeless people operated by Wesley Mission, a social worker wrote to the defendant on the plaintiff’s behalf inquiring where his possessions were. A copy of the letter, dated 14 August 2013, was annexed to his affidavit. He received a reply in September 2013, which included the following passages:

“Housing NSW policy concerning disposal of goods is governed by the Residential Tenancies Act 2010, Section 127, which states:

The landlord or landlord’s agent must give the former tenant notice that the goods will be disposed of after 14 days (in the case of goods other than personal documents) or 90 days (in the case of personal documents)

A letter was sent to [the plaintiff] at his tenancy address … on 15 January 2023 advising this information.

On 16 January 2013 [the plaintiff] phoned from China and advised he was incarcerated and did not have an expected dated when he would be released. He also advised his Client Service Officer that ‘there was nothing of value’ in the property.

On 7 February 2013 an email was sent to [the plaintiff] advising the termination of his tenancy by the Consumer Trader Tenancy Tribunal on 24 January 2013 and again advising that goods held for more than 14 days would be disposed of.

Goods were auctioned by an independent valuer and a cheque received on 28 March 2013 for $1421.13. This is currently held by Housing NSW as there is an outstanding rental debit on former account PRN … of $1982.28 that [the plaintiff] is required to pay.

Should you require any further information please do not hesitate to contact the Senior Client Service Officer.” (emphasis in original)

47. The plaintiff stated that in about July or August 2016 he was advised by “someone at Wesley Mission” that they could not help him further with that issue and he needed to “get your own lawyer”. He instructed his AJB solicitor in about August 2016, who had acted for him “many years ago”. He stated that at some point, he was admitted to St Vincent’s Hospital and, after his discharge, he was treated as an outpatient, “by numerous psychiatrists, psychologists, social workers, psychiatric nurses and other professionals”. In about July 2017, he was transferred to Ryde Hospital’s psychiatric department for ongoing treatment, including by Grace Sham, psychologist.

48. On about 30 June 2020, the plaintiff met Norman Ayoub, his current solicitor, for the first time.

The plaintiff’s oral evidence

49. In oral evidence, through the assistance of an interpreter in the Mandarin language, the plaintiff said that while on bail in the PRC, he was subjected to periods of what he termed “collective detention” or “forced study sessions” during which he did not have access to electronic communication. It was after these sessions had finished that he phoned the defendant in either December 2012 or January 2013. In re-examination, he contradicted this evidence, stating that the sessions did not finish until “April or May 2013”.

50. The plaintiff agreed in cross-examination that he instructed the HPLS to assist him in relation to the goods, which they did between May 2014 and August 2016. He agreed he was able to provide the HPLS with instructions and they would provide advice “via returning messages”. He agreed that they advised him to obtain written evidence of the value of the goods, and he acted upon that advice.

51. In relation to the exchange of emails with his AJB solicitor on 12 September 2016, the plaintiff agreed that he understood that the solicitor required him to bring certain documents to their forthcoming meeting. He said that when he was released from St Vincent’s Hospital, he “took the proper medication and as soon [as] I was discharged, immediately resumed my arranged meetings with said barrister on this case”.

52. The plaintiff was asked:

“Q. Now, you were repeatedly advised by HPLS that you had to bring a claim against the department by 5 February 2019?

…

A. WITNESS: [the plaintiff’s AJB solicitor] ask me to come into his office.

A. INTERPRETER: Yes, I assure you, Mr Barrister, I believe I should be the one responsible for missing the case because, at that certain time frame, around early 2019, I was being relentlessly … hunted by the loan sharks demanding payments. They even went up to my wife and my son for such demands. I was extremely distraught by such a situation, so much that I must have forgotten about any appointments with either [his AJB solicitor] or said requirements by HPLS.”

53. In relation to the prospects advice, the plaintiff agreed that he understood at the time that he received it that there was a deadline to bring a claim “up until 2019”. He was also taken to a note made by Ms Sham, dated 16 November 2018:

“– He’s been trying to save some money to pay his lawyer

– Lawyer always said it’s a good case & he’ll look after it

– 2019 is the last chance to deal with it”

54. The plaintiff was asked if the reason that the statement of claim was not filed in time was because his lawyer “simply made a mistake” and replied:

“I used to have a severe case of argument when I was emotionally unstable but, to be honest, I could not recall the precise reason why he did not manage to lodge a claim on this particular case … I did not remind him about a date because I believe he is the lawyer, he is the professional.”

The opinion of Dr Suman

55. In his first report, Dr Suman stated that he took a history from the plaintiff and reviewed hospital records, clinical notes from Ms Sham and reports of Dr Clark. It is regrettable that he was provided with the reports of Dr Clark, a non-treating psychiatrist who was not called, although it would appear from the terms of Dr Suman’s report that his opinion was not influenced by them. He was also provided with a report by Dr Jungfer, dated 7 September 2021.

56. Dr Suman assessed the plaintiff by way of an audio-visual link (AVL). The history that Dr Suman took from the plaintiff was to the effect that he was imprisoned in the PRC for about three months. Upon his release, he was required to remain in the PRC and was closely monitored for nine months, during which he was angry and became increasingly distressed. Dr Suman eliminated a diagnosis of post-traumatic stress disorder (PTSD) but assessed the plaintiff as having had “an adjustment disorder with mixed anxiety and depressed mood” during his detention in the PRC.

57. The plaintiff told Dr Suman that, on his return to Australia in about July 2013, he continued to struggle with “a mix of anxiety and depressive symptoms”, although “he was able to manage his activities of daily living and household chores although he struggled with his energy levels”. Dr Suman said:

“[The plaintiff] told me that he consulted his general practitioner on multiple occasions between Jan 2014 and Oct 2016, as he found it increasingly difficult to manage complex mental health issues. His description indicates towards him experiencing pervasive depressed mood, low energy and poor motivation throughout [the] above period.

…

[The plaintiff’s] clinical notes from Nov 2016 confirm that he was clinically depressed and also experienced psychotic symptoms, requiring admission to a psychiatric unit. His presentation at the time satisfied the criteria of major depressive disorder (severe with psychotic symptoms). He was admitted to hospital on an involuntary basis from 17th Nov 2016 till 23rd Nov 2016.

As per assessment today its evident that [the plaintiff] had been suffering from Major Depressive Disorder since Jan 2014 onwards up until my review. His illness remained undiagnosed and untreated till he was admitted to inpatient psychiatric unit I Nov 2016. He was initiated on psychotropic medication regime which helped to alleviate his mental health stressors (to some extent). His mental health gradually improved as he responded to the treatment. With improvement in terms of his mental health, [the plaintiff] developed insight in regard to his mental health stressors and accordingly sought help from local community mental health team in March 2017.”

58. As to the documentation he received from the plaintiff’s solicitors, Dr Suman said:

“Evidence from the documentation matches the information [the plaintiff] provided me today. It is consistent with him experiencing major depressive disorder which remained undiagnosed and untreated between Jan 2014 to Nov 2016.”

59. I note, however, that Dr Suman did not refer to any medical records that were created in the period between the plaintiff’s return to Australia from the PRC in July 2013 and his admission to hospital as an involuntary patient on 17 November 2016.

60. Dr Suman formally diagnosed the plaintiff as having suffered a “major depressive disorder” from January 2014 until the date of his report on 9 November 2021. He concluded:

“Overall, I am of the view that [the plaintiff’s] mental illness, i.e., major depressive disorder has substantially impeded his ability (between Jan 2014 till Mar 2017) in the management of his personal affairs including legal matters related to the legal claim against the housing commission. [The plaintiff’s] cognitive functioning i.e. his ability to grasp and process information related to legal matters was adversely affected due to the complex mental health stressors he suffered from during the above period”.

61. Dr Suman had been provided with a copy of Dr Junger’s first report, dated 7 September 2021. Dr Suman noted that Dr Jungfer’s opinion was based exclusively on the documentation. Although their diagnoses of a major depressive disorder coincided, he disagreed with her opinion that it did not render the plaintiff incapable or substantially impeded in the management of his affairs in relation to his legal matter.

62. In his second report, dated 21 March 2022, Dr Suman stated he had read Dr Jungfer’s second report, dated 6 December 2021. Dr Suman stated: “Instead of commenting on [Dr Jungfer’s] assessment and findings, I would like to discuss my clinical findings and impression”. He noted that: “I do not have any significant clinical assessment or records for [the plaintiff] from 2012 till Nov 2016”. Dr Suman said:

“[The plaintiff] had previously been buying and selling antiques between China and Australia. Major depressive disorder had an adverse impact on his ability to continues with his business. He opted to help with volunteering work rather than continuing with the business (as he could not cope with his mental health issues). He has not held any paid job since 2013. If he had the capacity to manage his personal affairs efficiently then I am of the opinion that he would have been able to return to his premorbid level of functioning i.e., as he was functioning prior to 2012. While there is no formal occupational therapy assessments to guide us about his functioning during [the] above period. It is evident that [the plaintiff] was struggling with a significant disability that adversely affected his social, occupational and general functioning since Jan 2014.

…

In coming to the above conclusion, I have relied on

•   On the longitudinal view of [the plaintiff’s] mental health issues rather than a snapshot view. His illness and related disability are longstanding (with fluctuations).

•   My clinical experience treating clients with chronic mental illness and related disabilities. [The plaintiff’s] disabilities are consistent with his chronic and complex mental health issues.”

63. In his third report, Dr Suman considered correspondence between the plaintiff and his legal representatives. He said:

“Going through the documents, it’s evident that [the plaintiff] does not have a good command of English. In addition to the above, he has answered only some emails. His email responses were not detailed and ‘to the point’.

I do not have substantial evidence to demonstrate he had mental ability/capacity between January 2014 to March 2017. The evidence from the documents does not change my opinion. In fact, some of the details indicated his struggle to understand and process information, especially in the context of complex legal matters. He has not answered several emails.”

Dr Suman’s oral evidence

64. In cross examination, Dr Suman said that persons with a major depressive disorder would need to be assessed on a case-by-case basis to determine whether they were “substantially impeded” in the management of their affairs in relation to a cause of action. Relevant factors are the severity of the disorder, any drug and alcohol issues, physical ailments and/or any underlying cognitive impairment. In the case of the plaintiff, a psychological stressor was his lack of accommodation. Dr Suman said:

“An individual with major depressive disorder … will struggle with their ability to understand, grasp and process information because of their illness and considering [the plaintiff’s] presentation before he was admitted to hospital he was at the severe end of major depressive illness which adversely impacted his ability to consider all the information and make decisions about his legal matters.”

65. As to documentary material corroborating his opinion that the plaintiff suffered a gradual worsening of his depressive symptoms between January 2014 and November 2016, Dr Suman said there was no clinical documentation, but there was a legal conference note dated 14 September 2016, in which there is an entry of medication, which includes an antipsychotic medication, Lanzek Zydis. He said that the plaintiff had told him he received medication from his general practitioner between 2014 and 2016, but when he did not recognise the names of commonly used psychotropic medications, he assumed the plaintiff was mistaken and recorded in his reports that he had not been diagnosed or treated.

66. Dr Suman was referred to the letter from the Wesley Mission to the defendant dated 14 August 2013 and agreed that it did not support a view that the plaintiff was substantially impeded in managing his affairs. Dr Suman was asked why in his report he had not mentioned that the plaintiff instructed two sets of lawyers throughout the period May 2014 to November 2016. Dr Suman responded that the plaintiff did tell him that he was referred to a legal team but “I did not go into details about him … what kind of interaction was it, how much instruction he was providing the legal team, I wasn’t sure”. He said:

“So if he had told me about his legal interaction I would have gone into details and assessed his capacity in regards the instruction he would have provided the legal team and what was his mental state like at the time to correlate both the diagnosis and his ability to provide instruction to come to my conclusion about whether he was substantially impaired or not.”

67. As to whether the plaintiff could have been without disability during the first period, Dr Suman said:

“There is a possibility that he has had treatment and he was doing well for some period between 2014 to 2016 before he was admitted to hospital, which may have involved his capacity but I’m not very sure about it because I don’t have the clinical documentation.”

68. In re-examination, Dr Suman said he was concerned by a poor result that was obtained by the plaintiff on a cognitive assessment test, the Montreal Cognitive Assessment (the MoCA) that was administered the day after he was admitted to St Vincent’s Hospital in November 2016, which suggested to him that the plaintiff “has been struggling with cognitive impairment, secondary to a mental illness for a very long period, from a clinical point of view”.

69. Dr Suman said he asked the plaintiff’s solicitors for the notes of the general practitioners that the plaintiff saw before his admission to hospital, but he understood they had difficulties obtaining them.

“Q. Doctor, in your first report … you state that the purpose of the assessment was to understand [the plaintiff’s] mental health issues dating back to 2013. You were informed that he … was seeing a general practitioner in the years before his admission to hospital. Did you seek the notes of the general practitioners who he had seen prior to his admission?

A. I had requested it from the lawyers, but I think the lawyers were finding it difficult to get the clinical documentation.”

The evidence of the defendant

The opinion of Dr Jungfer

70. Dr Jungfer’s first report, dated 7 September 2021, was based exclusively on documentary material as to the plaintiff’s health care. She noted that the records in respect of his involuntary admission to hospital November 2016 refer to his mental health deteriorating consequent to an offer from the defendant to settle the matter for the sum of $1,400 and expressions by him of a desire to cause mortal harm to a particular officer of the defendant.

71. Dr Jungfer referred to a hospital note dated 22 November 2016, that was tendered at the hearing:

“22/11/16 Phone call to [the plaintiff’s AJB solicitor]

Last contact 4-6 weeks ago, did not from a view lacking in mental capacity, was upset but logical and organised.

Is in the process of taking DOH to Supreme Court for a law suit potentially worth millions of dollars.

Has known [the plaintiff] 25 years ago was involved in a taxi accident, litigated and received a substantial settlement.” (emphases added)

72. Dr Jungfer stated that she was shown a redacted copy of the hospital note. She did not refer to the emphasised portion of the quote above, that was in the tendered unredacted copy. She also referred to another hospital note, dated 22 November 2016, concerning a phone call made by a resident medical officer, Dr Begy, to Mr Ngo of Allens Linklaters, on behalf of HPLS. Mr Ngo was recorded as saying he had not met the plaintiff but that he had received legal assistance from HPLS.

73. A note dated 25 November 2016, made at a seven-day follow up assessment after the plaintiff’s discharge from the hospital, recorded that he “has been feeling well since discharge” and was “collaborating evidence for his court case”. A note made on 28 March 2017 was to the effect that he had relapsed, complaining of depression and sleep impairment, that he was only leaving his residence, at Edward Eagar Lodge, “to attend appointments”. Dr Suman stated:

“Psychiatric review with Dr Singer noted a history of low mood, impaired sleep, anhedonia, ^[4] poor energy, feelings of worthlessness and guilt, eating well, no thoughts of self-harm. His thinking was considered to have somewhat of a delusional flavour but was generally logical and reality testing appeared to be intact. His diagnosis was depression, and he was commenced on antidepressants.”

4. “Anhedonia” is defined as: “an inability to take pleasure in the common experiences of life which people usually find pleasurable” (Macquarie dictionary 9th edn).

74. Based on the documentation she reviewed, Dr Jungfer diagnosed the plaintiff as suffering from a depressive disorder and, between 17 and 23 November 2016, from a major depressive disorder. She said:

“This diagnosis is confirmed on review of the medical records that were provided. Those records are contemporaneous records of the treatment he received from the St Vincent’s Hospital and Community Health Team, as well as the Lower North Shore Community Health team.”

75. Later in her report, Dr Jungfer said:

“Major depressive disorder is common in the community, at any time 3-6% of the population will have a major depressive disorder, with 1 in 3 people having a major depressive disorder in their life … Patients with the most severe form of depression, psychotic depression may be under a disability while ill, but most patients with a major depressive disorder are not disabled or impeded in carrying out their relevant affairs while depressed.

It is my opinion that while [the plaintiff] had a depressive disorder, apart from the one-week period he was admitted to St Vincent’s Hospital he was not under a disability as defined by the Act.”

76. Dr Jungfer assessed the plaintiff by AVL on 6 December 2021 with the assistance of an interpreter, who was with Dr Jungfer. She found the plaintiff to be, on occasion, unresponsive to questions she asked, in a way that was inconsistent with the impact of a mood disorder. He was unable to provide information that he had provided to Dr Suman. Dr Jungfer said:

“When there was the attempt to assess him cognitively to be able to determine the impairments of cognition, he would not cooperate with the instructions. He had been instructed not to rely on any aid (such as a watch, paper/pen) for the assessment. He would not comply with instructions, and the testing was abandoned.”

77. Dr Jungfer found it difficult to read the plaintiff’s body language, because he constantly complained that he could not hear and bent his head in such a way that she could often only see the top of his head.

78. In relation to Dr Suman’s first report, dated 9 November 2021, Dr Jungfer said:

“I disagree with the opinion of Dr. Suman that [the plaintiff] has been under a disability continuously from 2014 until present the time. Dr Suman described the presentation from January 2014, highlighting pervasive biological symptoms, although there was no evidence of this in records provided of seeking medical treatment prior to 2016. The acute contact with services in 2016 when he became suicidal and homicidal related to an offer reportedly conveyed by his solicitor. Up to the presentation in November 2016 there was no evidence he was under a disability or incapacitated to manage his legal affairs in relation to this matter. Dr Suman stated [the plaintiff] had consulted the general practitioner on multiple occasions there is no reference to Dr Suman receiving [the plaintiff’s] general practice records to support his contention.”

79. Dr Jungfer reported that the plaintiff told her that he saw a psychiatrist and a psychologist for treatment “commencing around 2013, 2014 when he lost his home (no medical records to support this history have been provided)”.

80. Dr Jungfer said:

“[The plaintiff] was asked why the matter had taken so long to go to the courts and he said that he was needing time to accumulate the evidence as to what had been taken, his ownership of this property and the value of that property. He stated that to be able to obtain the appropriate certification of the stolen antiques he needed to travel to China, and that the process was slow. He felt he needed to find proof of value of what was missing so that people did not have to take his word for it, and that this was a delayed process. When asked how he had found his current legal counsel, which he says have represented him for approximately 12 months, he stated that he simply asked around and located them.”

81. In her third report, dated 22 June 2023, Dr Jungfer referred to the legal correspondence, which she thought “were not very helpful in some respects”. Nevertheless, she said that they did not cause her to alter her opinions expressed in the earlier reports:

“These further records do not cause me to alter the opinions expressed in the reports of 7 September 2021 and 6 December 2021. The records reflect a person who was not incapacitated in that he was able to form an idea, process information and act on his ideas, therefore while he may have been unwell with the depression he [was] not incapacitated by the depression when reflecting on the additional records which were provided.”

Dr Jungfer’s oral evidence

82. In cross-examination, Dr Jungfer was asked about the MoCA. She said it was only a screening test and, in any event, not an appropriate test for the plaintiff, because English was his second language. The appropriate test for that purpose for a person who did not have English as their first language was a RUDAS COG. She said that administering the test to the plaintiff the day after his admission to hospital, when he was acutely mentally ill, was also inappropriate.

83. Dr Jungfer said that a difficulty in preparing her reports was that there was an “absence of records because I’m not able to get a contemporaneous history of treatment”. However, the medical records she did have suggested that the plaintiff responded, “reasonably well” to treatment, although “one of the problems was that he wouldn't stick with the treatment”.

84. Dr Jungfer was of the opinion that the medical documentation concerning the plaintiff’s presentation on 28 March 2017 was an insufficient basis for concluding that he was “significantly impaired” at that time. She was asked:

“Q. Would you say that at that particular point in time he was not in a fit mental state to prosecute his court action, given what’s said as to his mental functioning?

A. I mean, this is the challenge with this matter … there's not enough information in that assessment. If someone who’s had a relapse of their depression, are they not able to attend to their legal affairs, it is a yes, but it could also be a no. Again, based on the fact that, you know, we’re always encouraged to see someone as having capacity, you know, note that he knew he needed medication, he could organise an appointment, he was attending to his personal care - it still indicated that – you know, we’re looking at equivalence because … no one has asked the question, ‘Are you managing your legal affairs?’ so we’re looking at equivalence and he does demonstrate a capacity to attend to what his needs are, so it’s the best you can go by.”

85. Dr Jungfer was asked whether an apparent delay in the commencement of legal proceedings could be explained by the fact that the plaintiff was “incompetent at getting” evidence of his loss. Dr Jungfer agreed and said she had asked the plaintiff about the delay:

“… he spoke about the fact that he needed to find the proof, and it was a slow process because he needed to travel to China, he was trying. … I wondered why this process was taking him so long to gather information. And the explanation he presented to me seemed plausible; that it would be hard to find that information. I understood he didn't have lots of images of what he was looking for, and was searching the internet and things, so. But I think the important part was that … he knew what he had to do, so he understood what the solicitors were telling him, he knew that he had to prove his situation, and he had a means, which seemed quite logical based on what he said of how he – was gathering the information, why he was gathering it.”

Consideration

86. As noted, following the orders made by Cavanagh J, the plaintiff amended his case in his second further amended reply to the defence to the FASOC to align the second period of alleged disability with the expert opinion of Dr Suman. As to the first alleged period, the parties accepted at the hearing that the cause of action accrued no earlier than the last possible date of the theft of some of the goods (19 February 2013) and, for the remaining goods, the date of the auction (9 March 2013), which fixes the beginning of the first period of disability as no later than 9 March 2013. Neither party has suggested that the expert evidence supports the proposition that the plaintiff was under a disability earlier than those two dates.

87. The plaintiff’s closing written submissions appeared to advance the proposition that he was under a disability between 31 March 2017 and the filing of the statement of claim, but in oral submissions, counsel for the plaintiff clarified that the only relevance of any evidence as to that period was to demonstrate how the plaintiff presented when he was not under a disability. Accordingly, it was agreed between the parties that there are only two periods for consideration as to whether the plaintiff was under a disability, which are as follows:

1. between 9 March 2013 and 6 July 2013 (the first alleged period); and/or

2. between 1 January 2014 and 31 March 2017 (the second alleged period).

88. The plaintiff bears the onus of proof of establishing that he was under a disability in one or both of those periods: In Binetter v Binetter (2022) 409 ALR 1; [2022] NSWCA 169, Basten AJA (White and Mitchelmore JJA agreeing) referred to the onus being on the person alleging the disability at [98], although the issue was not in dispute.

Whether the plaintiff was under a disability between 9 March 2013 and 6 July 2013

89. The plaintiff alleges he was under a disability pursuant to s 11(3)(b)(ii) of the Act during the first period because of the “restraint of his person, lawful or unlawful”. The plaintiff’s evidence is that following his release from prison in March 2012, he was unable to leave the PRC for the next 14 months because the authorities retained possession of his passport and for the remainder of his time in China he had only intermittent access to electronic communication, due to further constraints by the authorities in the form of periods of what he termed “collective detention”.

90. The only communication the plaintiff had with the defendant in that period was a telephone call he made to the defendant in either December 2012 or January 2013. He became aware in the phone call that Centrelink was not paying his rent, presumably because of his extended overseas stay, and that there were no arrangements in place for him to pay it directly. His evidence is that the employee of the defendant hung up when he asked for bank account details so that he could forward the rent directly.

91. Although the plaintiff had been advised that no rent had been received by the defendant for the premises for nine months, he did not initiate any further communication with the defendant, or organise for any rent to be paid, in the following six or seven months before his return to Australia. Although the lease had been terminated effective from 25 January 2013, he said that he did not discover that fact until after he returned to Australia and did not find out that the defendant did not have the goods until he was so advised by a letter from the defendant that he received in September 2013.

92. The plaintiff’s submission, as I understand it, is that during the first alleged period of disability, he was unaware that his cause of action had accrued from 9 March 2013; because of the constraints imposed on him by the PRC authorities. His submission appears to presume that the limitation period is suspended if a plaintiff is prevented from discovering that they have a cause of action.

93. In my view, the terms of s 11(3)(b) of the Limitation Act are to the effect that, in order for the disability to qualify as one that suspends the limitation period, it must be the reason that the plaintiff was rendered “incapable of, or substantially impeded in, the management of his … affairs in relation to the cause of action”. As a matter of statutory construction, lack of knowledge of the cause of action cannot be a relevant substantial impediment in the case where the limitation period is provided for by s 14(1) of the Limitation Act, which states that the limitation period runs “from the date on which the cause of action accrues”. This is because the accrual of a cause of action does not import questions of actual or imputed knowledge of the cause of action as are found elsewhere in the Limitation Act in relation to the concept of “discoverability” in personal injury actions: s 50D of the Limitation Act.

94. For the sake of completeness, to the extent that the restrictions that the authorities of the PRC placed on the plaintiff impeded his ability to contact a legal representative in Australia to commence an action, the plaintiff does not suggest that there was a blanket ban on him communicating with persons or agencies in Australia throughout the period in question. Although he phoned the defendant in December 2012 or January 2013, he does not suggest that he tried subsequently to contact the defendant again or, for that matter, an Australian lawyer who would be able to commence an action against the defendant, even though the periods of “collective detention” were periodic rather than constant.

95. In Karaagac v GRE Insurance Limited [1989] NSWCA 116 Meagher JA (Clarke and Hope JJA agreeing) considered an application of ss 11(3)(b)(ii) and 52(1)(c) of the Limitation Act (which, other than gender-neutralising some pronouns, have not been amended since) where the appellant submitted that he was under a disability by virtue of his imprisonment on two separate occasions, particularly the second occasion, during the limitation period. Meagher JA (Clarke JA agreeing) said:

“There is no doubt that being in prison must, relevantly, constitute an impediment to the conducting of legal proceedings. The relevant question under s 11(3) of the Limitation Act is whether the second period of imprisonment constituted a substantial impediment.

The evidence does not disclose why no further or more deliberate attempt was made by the appellant to contact his solicitors …

…

At the end of the day one has the position which was summarised by his Honour below:-

‘The reality of the matter of course is that despite the facilities which were available to him by way of telephonic and written communication with his solicitors, the plaintiff did absolutely nothing between 23 March 1983 and the date of his release to contact his solicitors. The evidence is quite inadequate for me to hold that over the relevant period the plaintiff was substantially impeded in the management of his affairs in relation to the cause of action in respect of the limitation for which the question arises by reason of restraint of his person.’

I respectfully agree with his Honour’s observations and can find no error in them.

…

The sad fact is that the silence of the appellant during the relevant period remains simply unexplained and certainly does not allow us to draw any inference that he was substantially impeded in having the matter reinstated.”

96. Clarke JA, referring to s 11(3)(b), said:

“Mere impediment is not sufficient. In order to establish that he is under a disability he must show that he has been substantially impeded. It was submitted that the appellant had discharged the onus of showing that, by virtue of the fact that it was clear that he was unable to attend at his solicitor’s office and press him for action. He was deprived of the right open to litigants who are not imprisoned to exert pressure on his solicitor in person.

…

… he made no attempt to speak to a solicitor and there has been no evidence adduced which explains why he simply failed to take that action. In these circumstances, while it is clear that the imprisonment operated as an impediment to his management of his affairs it is, in my opinion, not correct to conclude that that impediment was a substantial one.”

97. Applying the same reasoning to the plaintiff’s predicament, in my view, he has failed to establish that he was “restrained” from contacting an Australian lawyer to commence the cause of action in the sense that term is used at s 11(3)(b)(ii) of the Limitation Act.

98. Accordingly, I am not satisfied that the plaintiff was under a disability for any part of the first period.

Whether the plaintiff was under a disability between 1 January 2014 and 3 March 2017

99. For the second alleged period of disability, the plaintiff relied upon s 11(3)(b)(i) of the Limitation Act. The principles to be applied in determining an issue on that basis were stated in Binetter v Binetter by Basten AJA (White and Mitchelmore JJA agreeing):

“10   The factor identified in subpar (i) was relied on. Relevantly, there are three elements to that limb of the definition of being ‘under a disability’ which are material. First, there must be a disease or impairment of the person's physical or mental condition. …

11   Secondly, such an impairment had to operate for a continuous period of at least 28 days to render her incapable of, or substantially impeded her in, the management of her affairs ... [U]nless the period of incapacity or the hospital stay continued for the minimum period, it was not to be measured as part of a period of suspension of the limitation period.

12   Thirdly, … it was not sufficient that any period of incapacity or substantial impediment related to her ability to look after herself, or to manage her affairs generally. Rather, the incapacity or substantial impediment had to relate to the management of her affairs ‘in relation to’ the cause of action ‘in respect of’ the limitation period.

13   As explained by Campbell JA in Guthrie v Spence, the grammatical structure of par (b) is awkward, but its meaning is tolerably clear:

‘159 A meaning that is the same as I have just been considering will arise if the syntax is analysed so that ‘in respect of the limitation period for which the question arises’ is an adjectival phrase that describes the noun phrase ‘affairs in relation to the cause of action’. So regarded, ‘in respect of the limitation period for which the question arises’ serves to divide off, from the whole ambit of a person’s affairs in relation to a cause of action, those affairs that are in respect of the limitation period for which the question arises. Reading s 11(3)(b) as having that syntax would advance the purpose for which s 11(3)(b) exists. It is readily understandable policy that a limitation period should continue to be suspended while a plaintiff is substantially impeded in dealing with those practical matters that need to be attended to for the action to be brought in time.

160 In my view, that is the correct syntactical structure of s 11(3)(b). Its having that syntax enables one to advance from the conclusion reached by analysis of the meaning of ‘affairs’, namely that the shade of the meaning of ‘affairs’ in s 11(3)(b) is one that places particular weight on the activities in relation to the cause of action leading up to and ending with the institution of proceedings, and to conclude that the only ‘affairs’ that are referred to by s 11(3)(b) are those practical matters that lead up to and end with the institution of proceedings for the particular cause of action in question.”

14   On that reading there are two limitations on the question as to the ability to manage one’s affairs, namely those identified by the two connecting phrases. Importantly, the focus is not on running proceedings from beginning to end, but on their commencement. That is not to say that the nature of the proceedings should be artificially confined by identifying the decision as being to commence or not. On the other hand, the reasoning of Campbell JA reflects a purposive approach to construing the provision, which was not challenged.” (citations omitted)

100. As to the first element, Dr Suman’s opinion was that the plaintiff had a major depressive disorder throughout the second alleged period of disability whereas Dr Jungfer diagnosed him as having a recurrent major depressive disorder from the time of his involuntary admission to St Vincent’s Hospital on 17 November 2016 that responded well to treatment, and was only acute in the week of his admission. Dr Jungfer did not provide an opinion as to the plaintiff’s mental condition before that date (that is, the pre-admission period), in the absence of contemporaneous medical notes.

101. Although there were references in the documentation generated by the plaintiff’s legal representatives to him receiving medical treatment and professional counselling in the pre-admission period, the plaintiff did not produce evidence in any form concerning those services or provide an explanation for their absence.

102. As to the second and third elements, Dr Suman was of the opinion that the plaintiff’s major depressive disorder had “substantially impeded his ability (between Jan 2014 till Mar 2017) in the management of his personal affairs including legal matters related to the legal claim against the housing commission”, whereas Dr Jungfer considered that he was substantially impeded in the sense contemplated in the Limitation Act only for the week of his admission to St George’s Hospital.

103. The observations of Campbell JA at [159]-[160] in Guthrie v Spence (2009) 78 NSWLR 225: [2009] NSWCA 369 and which were approved by Basten AJA in Binetter v Binetter, throw into sharp focus the evidence of the legal correspondence in the second alleged period of disability as to whether, at a practical level, in spite of any depressive disorder, the plaintiff was able to attend to the necessary tasks for the action to be brought in time. The correspondence demonstrates that the plaintiff attended legal conferences and communicated by telephone and email with his legal representatives. His legal representatives acknowledged his instructions and provided him with written and oral advice. Occasional references to him not responding to requests from his legal representatives were not at a level that would suggest a substantial impediment in the progression of the case.

104. It appears that his primary task by way of preparation for commencing an action against the defendant was to assist in obtaining evidence of the purchase of the goods and their value. I note that emails generated in February 2017 between the plaintiff and his solicitor demonstrate that the plaintiff was engaged in gathering evidence of his loss, including arranging a conference with him to discuss material that he had obtained.

105. The legal correspondence suggests that, whatever the plaintiff’s degree of depressive disorder in the second alleged period of disability, he was not substantially impeded in managing his affairs and taking the necessary steps to commence the action by filing the statement of claim, except for the period of his involuntary admission to St George’s Hospital, which is below the threshold of a continuous period of at least 28 days required by s 11(3) of the Limitation Act. In my view, the plaintiff has not displaced the effect of that evidence and thus has not established that he was under a disability in the sense required in s 11(3)(b) of the Limitation Act in the second alleged period of disability.

106. Accordingly, the plaintiff is statute barred from bring his action by s 14(1)(b) of the Limitation Act.

Costs

107. It is appropriate that an order for costs should follow the outcome.

Orders

108. I make the following orders:

1. The plaintiff was not under a disability for the purposes of s 52 of the Limitation Act 1969 (NSW) between 9 March 2013 and 13 August 2019 for a period of at least 28 days;

2. Noting that the plaintiff’s statement of claim was filed on 13 August 2019, the plaintiff’s further amended statement of claim, filed on 7 September 2020, is statute-barred pursuant to s 14 of the Limitation Act 1969 (NSW) and the proceedings are dismissed;

3. The plaintiff is to pay the costs of the defendant.

**********

Endnotes

Decision last updated: 23 April 2024