notwithstanding that she also noted:
"This was accompanied by a history of hearing voices and other unusual behaviour which ultimately led to the diagnosis of schizophrenia."
84 In my view these records did not lessen the weight of the expert evidence. Rather they reinforced the proposition that the appellant's behaviour fluctuated wildly and, in particular, that she was divorced from reality in significant respects.
85 The primary judge also relied on the fact that the appellant's brother reported that her condition had deteriorated in the five years prior to the application. In my view that fact provided no cogent reason for not accepting the expert evidence as to the appellant's mental capacity prior to 2000.
86 It is true, as her Honour noted, that during this period the appellant held down at least two apparently short-term jobs from each of which she had been dismissed. To my mind those dismissals support, rather than detract from the picture of a person afflicted by a mental disability.
87 Her Honour noted, but again appeared to give little or no weight to, the fact that by 2000 the appellant was drifting in and out of reality and Dr Goard suggested at that time, that her affairs should be "controlled by someone who is competent and responsible."
88 Although the primary judge accepted that the appellant's disability must have played a role in the delay after 2000 when her solicitor became aware of the deemed dismissal, (noting that Dr Robertson by 2001 described the appellant as having a "gross formal thought disorder") she concluded, again, that she was not persuaded the appellant's condition played "the pivotal role outlined by [her] senior counsel." This was because of the dearth of records in the solicitors' files "suggesting that [the appellant's] condition precluded them from obtaining instructions for most of the period," and the fact that neither Mr Fegent or Mr Capalupo (at least early in the period he was acting for the appellant) took any steps to have a tutor appointed.
89 Again her Honour's conclusions in this respect were inconsistent with the expert evidence and, too, her earlier finding that:
"Mr Fegent met with the plaintiff about four times. He described the plaintiff as very difficult to work with and said that she appeared mentally unstable. He had difficulty in obtaining instructions and on several occasions stormed out of his office."
90 To this I would add the fact that in his affidavit Mr Fegent said that while he was handling the appellant's file he was:
"… in two minds as to whether she was capable of giving instructions and … considered obtaining a psychiatric report and having someone appointed."
91 Further, at the time Mr Capolupo had conduct of the matter in November 2003, he filed an undertaking from the appellant's brother to act as her tutor in the professional negligence proceedings.
92 The period 2002-2004 during which the professional negligence proceedings were being pursued can be put to one side as the primary judge concluded that, in view of the appellant's mental condition by that time, their pursuit could not be considered a deliberate decision by her not to pursue the motor accident proceedings. Accordingly she must have accepted that from at least 2002 the appellant's mental incapacity meant she was incapable of making a rational decision in relation to the proceedings.
93 Her consideration of the last period of "delay" turns solely, therefore, on what the appellant's current solicitors did once they assumed conduct of the matter.
94 In this respect, her Honour concluded there was no sufficient explanation for the delay between October 2004 and August 2005 when the Motion was filed, "particularly as most of the evidence and affidavits were filed after the Motion".
95 At the time the Motion was filed the appellant's solicitor filed a detailed affidavit describing the appellant's mental disability, the complexity of the matter, the number of different solicitors who had handled it, the steps she had taken undertaken to seek to contact each of those solicitors (with Mr Hovan being particularly difficult to procure an affidavit from as he was by then in gaol) the briefing of senior and junior counsel and their advice to pursue another rescission motion. The primary judge did not refer to any of that evidence. In my view it provided a satisfactory explanation for the passage of time between late 2004 and the filing of the Motion. The appellant's solicitors were effectively "in the dark"; the appellant could not tell them what had happened; they had to re-create the events of the previous twelve years by examining the documents, tracking down relevant witnesses and procuring advice from Counsel. The material to be analysed was voluminous. In my view it could not be said that the time that elapsed between late 2004 when the current solicitors were retained and when the Motion was filed was not satisfactorily explained.
96 As this analysis demonstrates, the primary judge appears to have given no weight to the uncontradicted expert evidence that since September 1994 the appellant had been incapable of managing her affairs. This evidence was compelling, coming as it did from two medical practitioners who had been involved in reviewing the appellant's medical condition since soon after her accident. But even if it was a permissible approach to test the validity of those opinions by reference to contemporary document, those records, too, gave a picture of a person drifting in and out of reality to such an extent that schizophrenia was diagnosed comparatively early in the peace. It may be a matter of debate as to why those medical records did not lead her legal representatives to consider appointing a tutor, but their inaction in this respect does not, in my view, diminish the expert evidence of her inability to manage her affairs throughout the relevant period.
97 Once it was accepted that the appellant's incapacity had subsisted since September 1994, the inference that her incapacity played a substantial role in the manner in which her motor vehicle accident proceedings were conducted was inevitable. It is not to point, as the respondent submits, that no formal order had been made under the Protected Estates Act. As a person incapable of managing her affairs according to expert evidence, her ability to pursue her proceedings with the diligence the law attributes to the reasonable person must have been gravely compromised.
98 The primary judge also erred, in my view, in giving insufficient weight to the actual prejudice to the appellant if the proceedings were not reinstated. The primary judge referred, in passing, to the fact that "the plaintiff's loss of an action to claim damages is a significant and relevant consideration", noted that the professional negligence proceedings were unlikely to provide her with full compensation and, too, that as liability had been admitted, the matter would proceed as an assessment and accepted the appellant was entitled to an assessment of her damages no matter how complex that exercise might be. These matters all told heavily in favour of acceding to the rescission application particularly in circumstances where the respondent acknowledged no personal fault for the delay could be attributed to the appellant.
99 Further the primary judge erred in finding the respondent would suffer prejudice.
100 The first matter of actual prejudice upon which the respondent relied, and which her Honour accepted, depended upon the proposition that determining the aetiology of schizophrenia depended on accurate family histories. The respondent persuaded her Honour that the appellant's family would not give reliable evidence in this respect. This was because of what was said to have been a false explanation the appellant and her mother had given to university authorities in 1993 at the start of her second year of university, when she sought to overturn her exclusion from her course on the basis of family disruption during her first year of studies. The conclusion that the explanation was false depended upon what the respondent submitted was a "confession" by the appellant in 1996 to a Dr Skinner, a doctor qualified by the respondent, that documents provided to the university in 1993 had been false. It also depended on evidence given by the appellant's brother in cross-examination to the effect that, fourteen years after the event, his recollection of family relations (at a time when he was 16) did not accord with the account given by his sister and his mother to the university. Both the "confession" and the brother's evidence were also used to cast doubt on the appellant's mother's credit having regard to her involvement in supporting her daughter's application in 1993.
101 A "confession" to a doctor in 1996 at a time when the appellant was already suffering from a schizophrenia-like psychosis strikes me as inherently unreliable, certainly less reliable than documents she wrote in 1993 at a time when her mental disorder appeared to be in its early stages of development. As to the appellant's brother's account of family life, common experience demonstrates that one member of a family's view of family life, particularly a different gendered member, may differ markedly from another's. As to the submission about the appellant's mother's credibility I agree with the appellant's submission that it was inappropriate to make an adverse finding in that respect when the appellant's mother did not give evidence. I would also note that the appellant was one of several siblings. There was no suggestion that none of her siblings or her father would not give reliable family histories.
102 In my view her Honour erred in concluding that the appellant's family could not give reliable evidence.
103 The next matter of actual prejudice upon which the respondent relied was that by virtue of the delay the appellant herself would most probably be unavailable as a witness. To the extent that is a matter of prejudice, (which I acknowledge it must be) it works both ways. The appellant's inability to give evidence may make it more difficult for her to establish her case. It is not sufficient, however, to outweigh the overwhelming prejudice she will suffer if her matter is not permitted to proceed to a hearing. The primary judge erred in reaching the contrary conclusion.
104 Finally to the extent her Honour's apparent finding of presumptive delay depended on applying McHugh J's judgment in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 that was, in my view, an error. Those statements have particular resonance in applications for an extension of a limitation period where the focus is on whether the time bar should effectively be relaxed, but must be approached cautiously in an application which focuses on what is appropriate to do justice between the parties: see Andresakis & Skouteris t/as Andresakis & Associates v Alexus Holdings Pty Ltd (at [78] - [79]).
105 In my view the primary judge's exercise of her discretion miscarried in a manner warranting appellate intervention. For the reasons I have given the time in which to consider the application to rescind the deemed dismissal should be extended and the deemed dismissal should be rescinded.