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IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION |
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JUDGE JAMES |
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JUDGMENT 22 June 2006 20372/04 V SIMUNDIC v UNIVERSITY OF NEWCASTLE |
| 1 HIS HONOUR: The plaintiff in these proceedings Mrs Vesna Simundic has made two
applications by Notice of Motion, an application filed on 25 May 2005 that the trial of the proceedings
be with a jury (“the jury application”) and an application filed on 21 November 2005
for an order under s 52 of the Limitation Act (“the Limitation Act application”). Mrs Simundic appeared in person
on the hearing of the applications and has acted for herself during most of the principal proceedings. |
| 2 The principal proceedings were commenced by the filing of a Statement of Claim on 18 October
2004. The original Statement of Claim was defective, as was at least one amended Statement of Claim. On 7 April 2005
a further amended Statement of Claim was filed, which I was informed at the hearing of the applications is the last Statement
of Claim to have been filed. I will refer to this further amended Statement of Claim of 7 April 2005 as “the amended
Statement of Claim”. |
| 3 It is necessary to summarise some of the main allegations made in the amended Statement of Claim. |
| 4 In the amended Statement of Claim it is alleged that the defendant, the University of Newcastle, was the employer
of a number of individuals, including, in particular, Ms Lianne Flynn, who
was a lecturer in the Department of Social Work at the University (her first name
is spelt in various ways in the documents which were before me on the hearing of the applications) 23 OCT 06 and Ms Jo Gaha, who was the head of the Department of Social Work in the University. |
| 5 In about 1996 the plaintiff became enrolled as a student in a degree course in the Department of Social Work.
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| 6 In August 1998, as part of her social work course, the plaintiff undertook a field study placement at the
Royal Newcastle Hospital, her supervisor being Ms Flynn. |
| 7 It is alleged in the statement of claim that on 26 August 1998 Ms Flynn, in the presence of the plaintiff
and the plaintiff’s field study educator, spoke critically about the plaintiff. It is further alleged that subsequently
in late August 1998 the plaintiff had a further meeting with Ms Flynn, in which Ms Flynn was “emotionally and verbally
abusive towards the plaintiff”. 8 The plaintiff was distressed by Ms Flynn’s conduct and made complaints about
it to representatives of the University. In mid 1999 a University counsellor, Ms Bryant, diagnosed the plaintiff as having
a post-traumatic stress disorder.
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9 On or about
26 August 1999 Ms Gaha wrote an email, which the plaintiff alleges “contained material critical of, offensive
to and materially false in respect of the plaintiff”. Ms Gaha or the University caused the email to be published to
a number of employees of the University. 10 On or about 1 September 1999, at a meeting attended by the plaintiff, Ms Gaha and other employees of the University, an employee of
the University named Ramsland accused the plaintiff of “behaving in a violent and intimidatory manner” towards
an employee of the University. 11 On 17 August 2000 there was a further meeting, at which the plaintiff, Ms Gaha and other students of the University were
present, during which Ms Gaha was “abusive and accusing” of the plaintiff. |
| 12 The plaintiff ceased to be a student of the University in the year 2000, without having obtained a degree in Social Work.
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| 13 The plaintiff alleges in the amended Statement of Claim that she suffered various kinds of psychological
injury including post-traumatic stress disorder, “as a consequence of trauma suffered by the plaintiff in her dealings
with the University, Flynn, Gaha and Ramsland”. |
| 14 In the amended Statement of Claim the plaintiff claims that the conduct
in which she alleges the University and its employees engaged gave rise to three causes of action, namely:- |
| (i) A cause of action in negligence arising from breaches by
the University of a duty to provide the plaintiff with a safe place of study and to provide the plaintiff with a course of
study permitting the plaintiff to complete the requirements necessary for the award of the degree of Bachelor of Social Work.
11 JAN 2000 |
| (ii) A cause of action in contract arising from breaches by the University
of a contract between the plaintiff and the University, under which the University was bound to provide the plaintiff with
a safe place of study and to provide the plaintiff with a course of study permitting the plaintiff to complete the requirements
necessary for the award of the degree of Bachelor of Social Work.
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| (iii) A cause of action in defamation based on the publication of the email written by Gaha on or about 26 August
1999. |
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15 The University has not yet pleaded to the amended Statement of Claim.
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16 After the University was served with the amended Statement of Claim, an application was made by the University
for an order that the plaintiff’s proceedings be summarily dismissed or, alternatively, for an order that the amended
Statement of Claim be struck out. The University’s application came before Harrison AsJ. In a judgment delivered on
22 June 2005 Harrison AsJ declined to make either of the orders sought by the University. However, on the basis that by the
time the original Statement of Claim was filed on 18 October 2004, the causes of action in negligence and breach of contract
for damages for personal injury would have become statute-barred, unless on some ground the running of the limitation periods
fixed by the Limitation Act 1969 had been suspended, Harrison AsJ directed that the plaintiff file and serve any application
for an “extension of time” under the Limitation Act. An application for an order under s 52 of the Limitation
Act was filed by the plaintiff on 21 November 2005 and this is the Limitation Act application to be determined by me |
| 17 It is convenient at this stage to refer to certain provisions of the Limitation Act which are applicable
to the causes of action pleaded by the plaintiff in the amended Statement of Claim. |
| 18 Under s 18A of the Limitation Act a cause of action founded on breach of duty for damages for personal injury
is not maintainable, if brought after the expiration of a limitation period of 3 years running from the date on which the
cause of action first accrued to the plaintiff. BOB CARR |
| 19 It may be that the causes of action in negligence and for breach of contract first accrued to the plaintiff
on 26 August 1998. On any view, the causes of action had accrued by the time the plaintiff ceased to be a student at the University
in the year 2000. Accordingly, it is clear that the causes of action in negligence and for breach of contract, having been
first brought by the filing of the original Statement of Claim on 18 October 2004, well after the expiration of the limitation
period of 3 years running from the date on which the causes of action first accrued to the plaintiff, would be statute-barred,
unless on some ground the running of the limitation periods was postponed. 2001 CONTACT WITH SC |
| 20 It was accepted by counsel for the University that the plaintiff’s cause of action in defamation, to
which a 6 year limitation period applies, is not statute-barred. |
21 In the Limitation Act application Mrs. Simundic relied on
s 52 of the Limitation Act, which, so far as is relevant, provides:- “(1) ……… 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 …… ….” |
| 22 In s 11(3) of the Act it is provided that::- “for the
purposes of this Act a person is under a disability:………………………………………………………………… |
| (b) while the person is, for a continuous period
of 28 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 …mental condition.” |
| 23 The plaintiff’s case on the Limitation Act application is that for much, if not all, of the period
between 26 August 1998 and 18 October 2004 she was substantially impeded in the management of her affairs in relation to the
causes of action in negligence and breach of contract by reason of an impairment of her mental condition. |
| 24 The evidence on the Limitation Act application was voluminous, much of it of only marginal, or no, relevance
to the application. |
| 25 The application was supported by a lengthy affidavit by the plaintiff and the plaintiff was cross-examined
by counsel for the University. Many documents were tendered by both parties. Most of the documents tendered by the defendant
were contained in a volume described as the defendant’s tender bundle. |
| 26 I do not propose to attempt in this judgment to summarise all of the evidence admitted on the hearing of
the applications. It is, however, useful to set out some of the facts which are clearly established by the documentary evidence
and some of the allegations made by the plaintiff, including when the allegations were made. |
| 27 On 26 August 1998 and again on 28 August 1998 Ms Flynn allegedly spoke critically and abusively about the
plaintiff in the presence of the plaintiff and others. |
| 28 On 30 October 1998 the plaintiff sent an email to Ms Gaha, which contained a detailed description of what
the plaintiff alleged Ms Flynn had done and said on 26 August and 28 August. The plaintiff requested that her “placement
liaison person” (Ms Flynn) be changed. |
| 29 In paragraph 2 of section 1 of her affidavit of 21 November 2005 the plaintiff said that:- “half year
later on my second placement (that is, half a year after late 1998) the full impact of what Ms Flynn did to me emerged and
my placement at Centre Link was terminated. Dep. of (Social Work) realised that the interaction with Ms Flynn had serious
impact on me.” |
| 30 On 4 August 1999 the plaintiff had a meeting with Professor English, the Deputy Vice-Chancellor of the University.
The plaintiff told Professor English that the abuses she had experienced from Ms Flynn had had a great impact on the plaintiff’s
health. Professor English suggested that the plaintiff undergo counselling and referred the plaintiff to Ms Bryant, the Director
of the University’s Counselling Services. The plaintiff was interviewed by Ms Bryant and Ms Bryant diagnosed the plaintiff
as having post traumatic stress disorder. |
| 31 In a letter dated 8 September 1999 the plaintiff requested Ms Bryant to provide “regular and on-going
weekly counselling to overcome the verbal and emotional abuse I experienced with Ms Lianne Flynn last year”. |
| 32 On 13 September 1999 the plaintiff wrote a letter to the University Grievance Officer of the University of
Newcastle, lodging two formal grievances against the Head of the Department of Social Work, complaining that she had been
failed in her field work course without receiving procedural fairness and that her failure in the subject was itself unreasonable.
In her letter the plaintiff supplied detailed reasons for her complaints. |
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33 In November 1999 the plaintiff sent an email to the Dean of Students at
the University of Newcastle saying:- “I want to report emotional and verbal abuse I went (through) in social work department
which resulted in TRAUMA and affected my performance on placement to SOMEONE in this University who will give me LEGAL advice.
Is
there any LEGAL OFFICER for students – someone who can give legal advice and support student in the court. I’ve
decided to take social work department to the court.” 34 On 11 January 2000 the plaintiff wrote a letter to Ms Gaha, enclosing documents.
In her letter the plaintiff said that “the documents which I have enclosed show clearly that I experienced trauma as
a result of the interaction with Ms Flynn in September 1998”.
35 On 16 January 2000 the University’s Grievance Committee delivered a report of its investigation of the plaintiff’s grievances against the Department of
Social Work, dismissing the first complaint but upholding the second complaint. |
| 36 On 16
May 2000 the plaintiff wrote a letter to the Dean of Students. In her letter the plaintiff said:-
“I’m
concerned if I turn up (to class) that Jo Gaha will humiliate me in front of everyone and I will again go through trauma.
Last year she verbally abused the student ‘till the point of trauma in front of all third year. I am really concerned
for myself.”
It would seem that “the student” referred to is the plaintiff herself. |
| 37 On 19 July 2000 the plaintiff wrote again to the University’s Grievance Committee,
complaining against the decision to fail the plaintiff on a field study placement at Gosford and giving reasons for her complaint.
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| 38 On 6 August 2000 the plaintiff wrote a letter “to whom it may concern”, complaining about the
University of Newcastle and the Social Work Department. In her letter she said:- “From 1998 until now, I
was subject of emotional, verbal and educational abuse. The individuals who are responsible for these are my lecturers/tutors
from Social Work Department. I was emotionally and verbally abused until point of trauma in the office of Ms Flynn in ’98
……….. .” |
| 39 On 18 August 2000 the plaintiff wrote a letter to the University Secretary and Registrar, setting out her
complaints. |
| 40 On 7 November 2000 the Anti-Discrimination Board received
a formal complaint from the plaintiff, which was dated 13 September 2000. |
| 41 In this complaint the plaintiff said that discrimination against her had occurred on 26 August 1998 and a
few days afterwards, when she had been abused in the office of Lianne Flynn. The plaintiff complained that Ms Flynn had abused
her “till the point of trauma”. The plaintiff also complained that Ms Gaha had made defamatory statements about
the plaintiff “to everyone”. |
42 In answer to a question on the printed complaint form asking
“did these things happen more than 6 months ago?” the plaintiff wrote
“1. FIRST ABUSE - 1998. - Did
not complain – except to social work dep. and DVC (Deputy Vice-Chancellor) Prof. English. My priority was to finish
degree – not to go to court.
2. EFFECT OF ABUSE – The trauma affected my life & study. I expected Social Work to
take responsibility – in return they abused me further. I complain to grievance.
3. After disclosing that I went
through trauma to SWRK (Social Work) Dep. I expected their help. The abuse I went through in Gosford made me realise that
I deal with criminals. I took Legal Aid.” |
43 In answer to a question on the printed complaint form “have you done anything else to try to sort out this
complaint?” the plaintiff wrote:
“I contacted solicitor Ms Kim McFayden – she works for McDonald Johnson
– Newcastle. She was the only one who did not want to charge me. I do not have money!! Kim told me that is unacceptable
what is happened to me and that I need $15,000 for Legal Expenses. She think that I should take them to court. I DO NOT HAVE MONEY!” |
| 44 It is apparent from documents in evidence on the hearing of the applications that in the year 2001 the plaintiff
made inquiries of a large number of persons or bodies, seeking assistance in pursuing her claims and grievances against the
University, including the New South Wales Ombudsman, the New South Wales District Court, the Legal Services Commissioner,
the Chairman of the Inquiry into Public Education in New South Wales, the Law Society of New South Wales, the Commonwealth
Ombudsman, the Commonwealth Department of Education, Training and Youth Affairs and the Supreme Court of New South Wales.
Most of these persons and bodies replied to the plaintiff that her claims did not fall within their jurisdiction. |
| 45 On 23 October 2001 the Community Assistance Solicitor for the Law Society of New South Wales wrote to the
plaintiff saying that the plaintiff might consider instructing one of three solicitors firms which had been randomly selected
from the Law Society’s data base. In the letter it was noted that “you have addressed your concerns with a number
of Newcastle University departments including the Deputy Vice-Chancellor and the former head of the Social Work Department,
the National Union of Students Association, the Anti-Discrimination Board, the Belmont Police Station and a number of legal
firms”. |
46 On 8 November 2001 the Policy and Research Officer of the Supreme Court of New South Wales sent an email
to the plaintiff, which included the following paragraphs:-
“I refer to your email to Mrs Nerida Johnston requesting
advice in relation to difficulties you are experiencing in the course of your social work studies at Newcastle University.
Mrs. Johnston has asked me to reply to you. I regret that neither Mrs Johnston nor other officers of the Registry can provide
you with legal advice. I note that you have sought advice from a solicitor already. If, however, you wish to seek further
legal advice or information from other sources you might wish to consider the following options ………….
.”The email then set out various options, including another private legal practitioner, a Local Court Chamber Magistrate,
the Legal Aid Commission of New South Wales, the New South Wales Law Society, the New South Wales Bar Association, a Community
Legal Aid Centre, a Legal Information Access Centre and a Deputy Registrar of the Supreme Court. |
47 I have already noted that the plaintiff’s complaint to the Anti-Discrimination Board included allegations
about matters occurring more than six months before the date on which the complaint was lodged and the plaintiff was asked
to provide a further explanation of why she had not lodged her complaint within time. In a document dated 24 September 2002
the plaintiff supplied a detailed explanation, including the following:-
“I was abused by Miss Flynn 1998 ‘till
point of TRAUMA. I’ve sent you documents of what the trauma is, how it affects victims and what the consequences are.
If not treated immediately, professionally it leads to mental illness. It took me whole year until DVC English decided to
investigate my behaviour and I was told “you are trauma victim”. It took me another year to accept that the social
workers denied abuse and instead of helping me I was abused further in an effort to make me leave. Finally – accepted
the truth that there is no help whatsoever I took the matter to ADB ………… .”
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| 48 In about March or April 2003 a legal practitioner, Mr Keeley, commenced acting for the plaintiff on her complaint
to the Anti- Discrimination Board. |
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49 In about August 2003
the plaintiff’s complaint was referred from the Anti-Discrimination Board
to the Admin Decisions Tribunal. On 29 August 2003 the plaintiff swore a long affidavit with many annexures, which was filed in the Admin
Decisions Tribunal The affidavit was witnessed by Mr. Keeley and was obviously prepared with legal assistance. [ITS OTHER WAY AROUND] 50 In February
2004 a two day hearing of the plaintiff’s case took place in the Admin Decisions Tribunal. For at least part of the
hearing the plaintiff was represented by Mr. Keeley. [MS SUE BEACH HUSH-HUSH MEETENG WITH MY SOLICITOR]
51 On 21 September 2004, after reserving its decision for 7 months, the Administrative
Decisions Tribunal handed down a decision, dismissing the plaintiff’s complaints that she had been discriminated
against by the University of Newcastle. [DECISION HANDED DOWN AFTER COMPLAIN] |
| 52 In the year 2002 the plaintiff’s husband instituted divorce proceedings under the Family Law Act. In
the proceedings the plaintiff’s husband sought custody of the couple’s younger daughter. |
| 53 The plaintiff was legally represented in the Family Court proceedings by Mr. John McFadden. On 17 February
2003 the plaintiff made a long affidavit of 170 paragraphs in the Family Court proceedings. |
| 54 On 11 March 2003 the plaintiff’s general medical practitioner, Dr. Ferguson, made an affidavit in the
Family Court proceedings. In his affidavit Dr. Ferguson said that he had treated the plaintiff from time to time since 1989.
In paragraphs 6, 7 and 8 of his affidavit Dr. Ferguson said:- |
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6. In my opinion, the respondent wife does not suffer from any mental illness or personality disorder. She has never
described any psychotic episode to me and there.................has been no evidence exhibited to me that she suffers or has
suffered any psychosis. |
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7. The respondent wife has suffered from a post traumatic stress disorder arising from an episode in her life when as
a child she was sexually abused. She reported to me.................that when she told her father who the perpetrator was
and the circumstances of the abuse, he did nothing about the allegations. She had described to me at various.................times
how she has been depressed. |
| 8. Her depression is consistent with
the history she gave me. It is reasonable that she should suffer recurring symptoms from time to time but these symptoms are
not.................such as would interfere with her ability to care for her children.” |
55 The only reference in Dr. Ferguson’s affidavit to the plaintiff’s dispute with the University
of Newcastle is in paragraph 16 which stated:-
“16. I became aware in the course of treating the respondent wife
that she was experiencing difficulties with Newcastle University staff and she reported to me that she was not receiving any
emotional support from the applicant husband who was an employee of the University.” |
56 On 21 March 2003 Dr. Ferguson referred the plaintiff to a psychiatrist Dr. Bruce Chenoweth. Dr. Chenoweth
saw the plaintiff on 24 March and 28 March and furnished a report to Mr McFadden dated 31 March 2003, in which he said:-
“I
confirm that within the time that I saw Mrs. Simundic that she did not suffer from a mental illness nor a disorder, had not
suffered from any form of “nervous breakdown”, was not violent nor abusive in my knowing of her nor in the history
that she relayed concerning her relationship with her husband and was not clinically disturbed in any meaningful way. She
was not diagnosable in psychiatric terms but wanted psychotherapy to assist her understanding of events and to continue a
healing process, which she perceived began with her migration to Australia …………. .” |
| 57 In a report of 20 August 2003 Dr. Chenoweth expressed the opinion that the plaintiff had suffered a post-traumatic
stress disorder as a result of being “abused verbally and pressured ………… by her supervisor who
controlled whether she passed or failed”. Dr. Chenoweth considered that the plaintiff displayed a number of symptoms
of post-traumatic stress disorder, including being agitated and emotionally labile when she described the events giving rise
to the disorder. |
| 58 The issue I have to determine is whether the plaintiff was, for some period at least between 26 August 1998
and 18 October 1994, substantially impeded in the management of her affairs in relation to the causes of action in negligence
and breach of contract pleaded in the amended Statement of Claim, by reason of an impairment of her mental condition. It could
not be suggested that during any part of that period the plaintiff was actually incapable of the management of her affairs
in relation to those causes of action. |
| 59 The plaintiff submitted that between 26 August 1998 and 18 October 2004 she suffered from a post-traumatic
stress disorder, from which she continues to suffer, and by reason of her post-traumatic stress disorder she was substantially
impeded in the management of her affairs in relation to the causes of action. In a document headed “Application for
an Extension of Time”, an annexure to her affidavit of 21 November 2005, the plaintiff asserted that because of her
post-traumatic stress disorder she became unable to manage simple tasks and was in such a psychological state that she could
not think clearly or take any effective action. |
| 60 For the purposes of this application I am prepared to accept, on the basis of certain evidence of the plaintiff,
Dr. Ferguson and Dr. Chenoweth, that the plaintiff may have suffered a post-traumatic stress disorder, caused, at least partly,
by the conduct of members of the staff of the Department of Social Work at the University of Newcastle and that the symptoms
of that disorder included symptoms described by Dr. Chenoweth in his report of 20 August 2003, including agitation, emotional
lability, sleep disturbance, flash-backs and intrusive memories. |
| 61 However, I am not persuaded that the plaintiff was for any part of the period between 26 August 1998 and
18 October 2004 substantially impeded in the relevant sense by reason of the post-traumatic stress disorder or any other mental
condition to which she was subject or, alternatively, I consider that the plaintiff ceased to be so substantially impeded
no later than some time in the year 2000. |
| 62 In his affidavit of 11 March 2003 sworn in the Family Court proceedings Dr. Ferguson stated that, in his
opinion, the plaintiff did not then suffer from any mental illness or personality disorder, that the plaintiff had not described
any psychotic episode to Dr. Ferguson and that the plaintiff had not exhibited any evidence of psychosis. |
| 63 In his report of 31 March 2003 to the plaintiff’s solicitor in the Family Court proceedings Dr Chenoweth
confirmed that the plaintiff did not suffer from any mental illness or disorder, had not suffered any form of nervous breakdown
and was not clinically disturbed in any meaningful way. |
| 64 It is apparent from a number of documents of which the plaintiff was the author that she had, from a quite
early stage or at least from some time in the year 2000, a clear appreciation of what she asserts was the wrongful conduct
towards her of members of the University staff and of what she asserts was the impact of that wrongful conduct on her. For
example, she described in detail what she alleges had been Ms Flynn’s conduct towards her in her email of 30 October
1998 to Ms Gaha. |
| 65 By August 1999 the plaintiff knew that she had been diagnosed by the counsellor Ms Bryant as having a post-traumatic
stress disorder and by that time, according to paragraph 2 of section 1 of her affidavit of 21 November 2005 she appreciated
“the full impact of what Ms Flynn did to me”. |
| 66 In the year 2001 the plaintiff contacted many individuals or bodies, seeking assistance in pursuing or vindicating
her claims against the University. These persons or bodies included the New South Wales Ombudsman, the Commonwealth Ombudsman,
the New South Wales District Court, the Legal Services Commissioner, the Chairman of the Inquiry into Public Education in
New South Wales, the New South Wales Law Society, the New South Wales Supreme Court and the Commonwealth Department of Education,
Training and Youth Affairs. The plaintiff’s conduct in contacting these individuals or bodies demonstrates that she
then had a capacity to manage her affairs in relation to her claims against the University. Capacity to manage her affairs |
| 67 In particular, the plaintiff made the complaint to the Anti-Discrimination Board, dated 13 September 2000
and received by the Board on 7 November 2000. In her complaint she alleged that she had been discriminated against and abused
by, among others, Ms Flynn and Ms Gaha, causing her trauma. |
| 68 In the document dated 24 September 2002 the plaintiff offered an explanation of why she had not lodged her
complaint within 6 months of the matters complained of occurring. The plaintiff asserted that a year had elapsed before the
Deputy Vice-Chancellor of the University had acted and because of the trauma she had suffered it had taken the plaintiff another
year to accept that the Department of Social Work staff denied having abused her and were abusing her further. The implication
of what the plaintiff said in the document of 24 September 2002 is that, by the time the plaintiff lodged her complaint dated
13 September 2000, if not earlier, the plaintiff was cognisant of what she alleged had been misconduct by the University staff
and of the effect of that misconduct on her and she was prepared and able to take steps to vindicate
herself against the University and its staff. |
| 69 The plaintiff instructed a lawyer to act for her in connection with her complaint
of discrimination, she made an affidavit in the proceedings in the Administrative Decisions Tribunal and she attended at the
hearing in the Administrative Decisions Tribunal. |
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70 In 2002 and 2003 the plaintiff contested the divorce proceedings brought against her by her
husband, she instructed a legal practitioner to act for her in those proceedings and she made a
long affidavit. |
| 71 The plaintiff asserted at the hearing that she had deferred commencing proceedings in the Supreme Court,
because she had been told (semble by a Court officer) that she should be patient and wait until her case in the Anti-Discrimination
Board had finished, before she commenced proceedings in the Supreme Court. There is no documentary evidence to support
this assertion. I have already referred to the email from the Policy and Research Officer of the Court of 8 November 2001,
which merely informed the plaintiff that Court officers could not provide the plaintiff with legal advice and notified the
plaintiff of possible sources of legal advice. In the circumstances, I am not prepared to accept that any such advice as is
alleged, was given by any officer of the Court. In any event, even if such advice was given, it would not be relevant to the
issue I have to decide, of whether the plaintiff was substantially impeded by reason of an impairment of her mental condition.
That the plaintiff may have been deterred from commencing legal proceedings by a lack of money with which to pay lawyers,
while regrettable, is also not relevant to the issue I have to decide. 16 OCT 2001 documentary evidence |
| 72 I dismiss the plaintiff’s Limitation Act application. |
| 73 The plaintiff’s jury application can be readily determined. I have dismissed the
plaintiff’s Limitation Act application, with the consequence that, at least as matters stand, the plaintiff’s
causes of action in negligence and breach of contract are statute-barred.
|
| 74 The plaintiff’s cause of action in defamation is not statute-barred but, as the publication of the allegedly defamatory matter took place before the
commencement of the Defamation Act 2005, the law of defamation to be applied is that contained in the Defamation Act 1974
(see Defamation Act 2005, Sch 4). Section 7A of the Defamation Act 1974 prescribes what functions are
to be performed by the judge and what functions are to be performed by a jury in proceedings
for defamation to which the 1974 Act applies and leaves no scope for an application of the kind brought by the plaintiff.
I dismiss the plaintiff’s application for a jury. |
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75
I dismiss both of the plaintiff’s applications and make an order that the plaintiff pay the
defendant’s costs of both applications. [I REFUSE TO PAY] |
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Amendments 23/06/2006 - Date of judgment omitted - Paragraph(s) Not applicable |
