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Supreme Court of New South Wales |
Last Updated: 12 April 2011
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Legislation Cited:
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Cases Cited:
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Brisbane South Regional Health Authority v Taylor
[1996] HCA 25; (1996) 186 CLR 541
Burk v Commonwealth of Australia (No 3) [2004] VSC 210; May v Thomas [2008] WASCA 215 Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd [1992] 1 WLR 1025, 1030; [1992] 3 All ER 132; [1991] 2 Lloyd's Rep 237; McKenzie v Commonwealth of Australia [2001] VSC 361; |
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Representation
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Background
Plaintiff's condition
"This man has a severe Post Traumatic Stress Disorder, Severe Major Depressive Discord, frequent severe Panic Attacks, a severe Pain Disorder and a Substance Abuse Disorder being to narcotic analgesics. These disorders are considered chronic and stable and have arisen directly as a result of the self amputation of his fingers with the exception of his Pain Disorder which is partly contributed to by his Trigeminal Neuralgia".
"I asked all parties present if I could reinterview Mr Hitchens in the presence of your and your legal team and proceeded to - gently I thought - raise this matter with him. He immediately became overwhelmingly distressed. He broke into tears, became extremely agitated and then commenced to hyperventilate. At this stage I intervened to slow down his breathing but not before he had developed at least the onset of a Panic Attack with a marked tremor, excessive sweating, chest pain and a feeling of light headedness. As those symptoms settled with the cessation of his heavy breathing I have returned to the topic at hand but found that he was virtually unable to respond in a clear, concise and logical fashion to any questions put to him. This may have been due to remnants of hyper anxiety still present but it may also be due to him moving to a Dissociative State for the content of his speech revealed long circuitous and rambling over inclusive statements that were delivered in an almost Formally Thought Disordered manner. I am not implying that he developed a brief psychotic episode where one could see Formal Thought Disorder rather; that he was so agitated and then dissociated to the point that his thought was quite fractured and manifest itself clearly in the room."
"In my opinion Mr Hitchens is not capable of providing instructions in this area since it generates so much anxiety and exacerbates traumatic symptomatology which he has present and that with the exacerbation of his underlying symptoms his cognitive functioning becomes grossly impaired to the level that I don't think that he can instruct meaningfully and reliably about this particular area that moves towards his integrity."
"These allegations were first mooted in November 2008. We note you first examined our client in June 2009. Are you able to express an opinion - as to whether his state of mind in June 2009 was such that he would (or probably would) have been able to provide reliable information at that time about whether the relevant representations made by him to the insurer were believed by him to be true.
"This is a very much a matter of judgement and a very difficult question to answer since you ask me to retrospectively transpose his tensions of the moment regarding the area of fraud to a year previously, I will say this - since I have known him I have been very disappointed with his lack of improvement. He was extremely agitated and angry and distressed and tearful when I first saw hurt on the 22nd June 2009 and his improvement has been very little over the last year. In my opinion he is clearly unable to give instructions on this matter now - perhaps he was slightly more able to when I last saw him - the question is moot."
1. 1 feel that Mr. Hitchens' mental state has deteriorated over the last year or so. The deterioration has been most marked over the last 6 months. The cause for his deterioration is related to the accusation that Mr. Hitchens has been fraudulent in his actions against his insurer and that he had been deliberately dishonest in his claim and his preparation of his insurance policy.
2. Mr. Hitchens is unable to instruct his team on matters pertaining to fraud, as it will trigger off a violent and profound panic attack. He becomes agitated, incoherent, short of breath, avoids eye contact with others around himself, does not listen or respond to verbal communication and can not get his own words out. What words are audible are incomplete and fractured and make no sense. He develops chest pain, grabs at his chest and leans forward making grunting sounds. His response is quite dramatic and in many ways similar to being in a dissociated state.
3. Mr. Hitchens' health and welfare would be adversely affected were he to be asked to defend issues of fraud. As mentioned previously his response is sudden and profound and his loss of physical and mental capacity great. It causes him great distress and he is unable to think or act clearly at the time of episode and given his response would have to question the point of following that line of questioning.
4. I feel that Mr. Hitchens' mental state earlier in the year was better. He has deteriorated over the second half of this year. He has financial pressures as well as relationship pressures. The issue of fraud is playing heavily in his mind. He was in a better mental state at the end of last year. His response to questioning and the reliability of this information would have been appropriate and accurate earlier (12 months ago) as compared to his current state.
"Q. Having regard to the fact he had been experiencing panic attacks, on your evidence, at least since November 2009, and on your evidence, that you believe that the cause of the panic attack he had in your office in June 2011 was, again quoting you, "related to the accusation that he had been fraudulent", I take it that it really wouldn't matter when that accusation was made between November 2009 and June 2010, it's your view it would have produced the same response?
A. I can't answer that question.
Q. I think we have covered issue of panic attacks between November 2009 and June 2010, you've agreed that it seems he was having panic attacks during that period?
A. Yes. The focus of my history taking of the patient was more targeted to excluding cardiac cause. I wouldn't feel comfortable to diagnose panic disorder in somebody and then have them have a cardiac arrest.
Q. I asked you about the causes of those earlier panic attacks, and you identified family stress, a whole lot of different things, I won't repeat what you said, but you remember that question?
A. His physical state, yes.
Q. You say specifically though, as I understand your evidence, in your view the cause of the panic attack in June 2010 is in some ways related to the accusation that Mr Hitchens has been fraudulent, is that what you are stating to the Court?
A. Yes.
Q. And what I am then putting to you and asking you about is whether you agree that in those circumstances, that is whether he had been having earlier panic attacks, that he had panic attacks since November 2009, it wouldn't have mattered whether he was first accused of fraud in, you say June 2010, or December 2009, for example, it would have produced the same result, you agree with that?
A. If he had the extra burden of the accusation of being fraudulent, or the perception that he was being accused of fraud, that would certainly exacerbate his condition and promote panic disorder.
Q. Whenever that accusation was made subsequent to November 2009, is that correct?
A. Yes.
Q. You say in paragraph 4 of your affidavit that you feel that Mr Hitchens' mental state earlier in the year was better". You have given some evidence about an event occurring in June 2010, your report is dated December 2010, are you suggesting in some way deterioration between June 2010 or December 2010, or were you meaning to say well, I think he was better in the months before this event in June 2010, do you understand what I am asking?
A. I would say that he was, I feel that he had been experiencing panic attacks since November 2009, and that the intensity of his attacks had deteriorated, and when I saw him in June of 2010, that it was a quite debilitating panic attack that left him essentially speechless and exhibiting physiological changes.
Q. You say in paragraph 4, the last sentence, "His response to questioning and reliably this information would have been appropriate and accurate earlier 12 months ago, as compared to his current state", do you see that?
A. I'd say so.
Q. He doesn't suffer from any form of cognitive impairment, does he?
A. No.
Q. He can verbalise, can't he?
A. Yes.
Q. Is what you are suggesting that there are times when he has difficulty verbalising?
A. Correct.
Q. And there are times when he has difficulty thinking?
A. Correct."
"The discretion conferred by the subsection 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 ( See Main v Main [1949] HCA 39; (1949) 78 CLR 636 at 643, though the discretion there was not a discretion to grant, but to refuse, a decree for dissolution of marriage). 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 of Victoria [1964] VicRp 103; [1964] VR 788 at 793 in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd ( [1966] Qd R 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.'"
(a) Dr Alexakis cross examination and the Doctor's answer to the first question;
(b) to his expert evidence;
(c) Dr Hampshire's evidence, including his re-examination;
I am not satisfied that if the allegation of fraud had been made in the defence in April 2010, it would produce the same response.
Principles to be applied
"Section 64 of the Civil Procedure Act (" CPA ") confers on Court a discretion to grant leave to a party to amend any document in the proceedings for the purpose of determining the real questions raised and avoiding a multiplicity of proceedings. Section 64(2) provides:
"Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding a multiplicity of proceedings."
"Section 58 provides that in deciding whether to make any order or direction for the management of proceedings, including any order for the amendment of a document, the court is to follow the dictates of justice. In determining what justice dictates in a particular case, the court must have regard to the provisions of section 56 (the overriding purpose) and 57 (the objects of case management) and may have regard to the matters prescribed by section 58(2) CPA , which relevantly include:
(a) the degree of difficulty and complexity to which the issues in the proceedings give rise;
(b) the degree of expedition (or lack thereof) with which the parties have approached the proceedings; and
(c) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction."
"In other words their Honours approached the question of prejudice by reference to the theoretical situation of an action commenced two and a half years after the conversation between the respondent and Dr Chang. But s 31(2) neither speaks of nor warrants such a comparison. Once an applicant satisfies pars (a) and (b), the Court has a discretion to extend the time for the bringing of an action. 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. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application ( Akermanis v Melbourne and Metropolitan Tramways Board [1959] VicRp 20; [1959] VR 114 at 116-17; Posner v Roberts [1986] WAR 1 at 6) . It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.
It follows that the approach taken by Davies JA and Ambrose J to the operation of s 31 (2) was in error and also that their assessment of prejudice to the appellant was on a false basis."
" In the present case, the learned District Court Judge held that the present respondent was "placed in a position of serious prejudice having regard to the lapse of time which has occurred". That being so, his Honour, quite naturally, took the view that an extension of time should not be granted. The learned Judges of the Court of Appeal met the prejudice point by holding that the test for prejudice was whether an order extending time would make the defendant any worse off than it would have been if the action had been commenced within, but towards the end of, the limitation period. But this analysis, with respect, treats the limitation period as little more than a point of reference. It suggests that all that is ordinarily relevant is the marginal prejudice created by the delay. It downplays, if it does not overlook, the second, third and fourth rationales of limitation periods to which I have referred. It treats the parties, subject to the question of prejudice, as if they were on an equal footing. The analysis gives no weight to the fact that the defendant's potential liability expired at the end of that period and that to extend the period may result in the imposition of a new legal liability on the defendant. Indeed, it seems to indicate that a limitation period is a provisional rather than a rigid limit."
" 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 him 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."
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