Just and reasonable
76 While the plaintiff's plight deserves sympathy, it is this Court's task to determine whether it is just and reasonable to extend the limitation period. The ultimate test in any such application is whether a fair trial can be conducted not withstanding any delay (see Wynter), or whether or not the plaintiff seeking the extension has discharged the onus of satisfying the court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely (South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 per Hodgson JA at [33]).
77 With the passing of 44 years there would be presumptive prejudice. Most relevantly the United States Supreme Court explained in Barter v Wingo (1972) 407 US 514 at 532:
"'What has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose."
78 Crown Street Women's Hospital closed in 1983. The plaintiff's hospital records, including the social work file, are available (see Ex 1D/1). The relevant legislation in place at the time of the adoption was the Child Welfare Act 1939. In 1967 it was replaced by the Adoption of Children Act.
79 Prior to the final report an Interim Report on Inquiry into Adoption Practices from 27 August 1998 to 19 October 1988 and Second Interim Report on Adoption Practices from 16 June 1999 to 25 October 1999 have been produced. There is some reference and evidence to the practices at Crown Street Women's Hospital in the early 1960's and brief reference to Scarba House in the Final Report - Releasing the Past - Adoption Practices 1950-1988 by the Standing Committee on Social Issues, Legislative Council of New South Wales Parliament. Chapter three focuses upon adoption practices from 1950 to early 1970. There may be witnesses who gave evidence to the inquiry who could be called to give evidence at trial such as Dr Hinde and Dr Rickarby. While Dr Rickarby gave evidence to the Committee he did not practice in New South Wales in the 1960's.
80 In 'W' a statement of Pamela Thorne nee Roberts who was in charge of the Social Work Department at Crown Street Women's Hospital, albeit from 1964 (two years after the plaintiff's baby was born to 1976) was tendered. Master Greenwood recorded the following. Ms Thorne stated that there was no policy of coercing mothers to surrender their child for adoption. It seems that the procedure then in place was to mark the papers with a code to indicate the status of the baby ie "UB negative" would mean "unmarried, baby for adoption" as a guide to the labour ward. It was a guide only and could be changed if there was a change of mind by the mother. The marking would affect the procedures surrounding the birth in three ways. First, as to the contact the mother would have with the child. Secondly, as to the accommodation of the mother and child after the birth. Finally as to the medication that would be administered to the mother.
81 According to Ms Thorne the policy of placing a pillow on the mother's chest was to prevent any bonding occurring. It would seem however that this policy was under review and in the late sixties whilst eye contact at birth was not permitted the mother could if she wished see the child later in the nursery. It would seem that this practice changed over a period of time. The purpose of moving the mother within hours of the birth, if it were medically possible, was that it was felt in the best interest of the mother as it was too traumatic for her to remain in the hospital where the child would be kept. If a mother stayed at the hospital she would be place in a ward with twenty five other mothers who would have their babies with them as the babies slept in cots by their mother's beds. It was the practice at that point in time, if the mother decided not to keep a child, for the mother to be informed that she would be moved to another area. The medication "stilboestrol" was used to suppress lactation not for the purposes of sedating the mother. Thus, I am prepared to accept that evidence may be called as to the adoption practices at Crown Street Women's Hospital in 1962.
82 There are text books, such as Obstetrics, J P Greenhill, 13th ed 1966, W B Saunders & Co, Philadelphia & London and Obstetrics by Duncan E Reid, W B Saunders & Co, Philadelphia & London 1962 available (Ex 1D/12). Although American they refer to the practice of obstetrics at the relevant time.
83 The plaintiff recalls having had a conversation with a doctor in the labour ward, Dr Beard, about the possibility of her baby being adopted (t 10.53). Dr Beard is still alive but his wife says that he has a very bad memory. Turning to the case before me, Dr Beard was the RMO in charge of the delivery of the plaintiff's baby. In the hospital notes next to the heading "reason for transfer of baby to nursery" on the neonatal history is an entry "BFA" (Baby for Adoption). This sheet refers to Dr Beard. Likewise on the nursing report for 16 September 1962 is a note "to nursery BFA".
84 The plaintiff has "a couple" of other recollections of mention of the adoption of her baby whilst she was in hospital. The plaintiff does not remember telling anyone she was going to keep the baby, but rather she just assumed she was going to and "they" knew about it (t 11.32). Nurse P Shorter, Nurse Cowan and Sister Siddall were also involved in the plaintiff's care at hospital. Nurses Shorter and Cowan have not been located. Sister Siddall has been located.
85 Ms Jean McDonald is the most critical witness for the Crown Street Women's Hospital. She was the almoner who was assigned to the plaintiff. An almoner is a social worker with some medical knowledge. Neither party has been able to locate Jean McDonald. It is possible that she may be dead. The hospital notes record that she had discussions with the plaintiff about her baby. At 2.00pm on 17 September 1962 in the hospital notes is an entry "? Keeping baby. To be seen by almoner this PM. Baby in nursery." There is an entry in the hospital notes "3pm seen by almoner" (t 30.56). It was after that meeting that the plaintiff's baby was put in a cot beside her bed. The plaintiff has no memory of this. However, the plaintiff says that she noticed that in her hospital records there was no actual notation that she saw Ms McDonald (t 10.23). It seems that there was at least one conversation which occurred at 3.00pm with the almoner. The oral conversation or conversations between Ms McDonald and the plaintiff are of the utmost importance, particularly where the plaintiff asserts that at no time was she informed of other alternatives for keeping her daughter such as foster care until she was older. She said that she was never given any information about her financial position or the rights that she might have for obtaining pensions or other financial assistance, nor was she given any counselling or advice as to what she could do in relation to keeping her baby. (Aff 30/05/2001 - [37], [40] & [42]). The latest information reveals that a death notices media search has revealed too many entries for Jean McDonald. A New South Wales electoral roll search has revealed 34 entries for Jean McDonald. Of the 34 electoral roll entries 19 have been contacted and are not the correct person. Messages have been left for five unanswered telephone calls and telephone numbers for 10 could not be located.
86 The hospital records contain a letter from Dr Coyne. He has no recollection of the letter and cannot recall anything about the case. Dr Coyne thinks that he probably signed the letter with no other involvement. That being so, Dr Coyne is of little importance in this case. Dr Stenning was involved in the treatment of the plaintiff and her baby. Dr Stenning died in 1983. Dr Crowe has reviewed the hospital records and has stated that he only saw the plaintiff for a routine antenatal visit when the plaintiff was 26 weeks pregnant and did not see her after that. The hospital records disclose the involvement of Dr MacKay. In relation to "booking and counselling". Dr MacKay has not been located but he could be an important witness and may be able to explain what the entry "counselling" meant.
87 Some of the other records from Crown Street Women's Hospital are held by the Coding company. In December 2000 Ms Vanessa Manuni, Acting Clinical Performance and Information Manager of Crown Street Women's Hospital, went to the Riverstone storage centre and inspected the documents held there. She identified eight boxes relevant to personnel records. She noted that these contained cards that provided demographic and employment details which were in no particular order. They would not seem to be of any assistance.
88 Enquiries have revealed that Estelle Sperling, Chief Dispenser/Pharmacist from 1960 to 1973 died on 20 November 1992. Ronald Barton Golsby Chief Executive Officer 1952 to 1971 died on 28 March 1989, E A R Blair, Matron/Superintendent of Nursing between 1952 to 1963 died on 23 April 1997 and F R Magarey, University of Sydney Professional Consultant from 1958 to 1976 died on 6 October 1983. These peoples' notes are of lesser importance to the issues in dispute should a trial take place.
89 The Minsters for the Child Welfare were Francis Harold Hawkins MLA (15 March 1956 - 13 May 1965), Arthur Dalgety Bridges MLC (1965 - 22 May 1968), Arnold Henry Jago MLA (22 May 1968 - 3 September 1968), Frederick Maclean Hewitt MLC (3 September 1968 - 11 March 1971 and Acting Minister 26 May - 31 July 1972) and John Lloyd Waddy MLA (11 March 1971 - 17 January 1973) and Minister for Youth and Community Services (17 January 1973 - 3 December 1973). All are deceased. While they may have had some knowledge about adoption policy it would be most unlikely that they are further removed from having any direct knowledge about matters touching on the plaintiff's case.