Plaintiff v Firstnamed Defendant

2 The plaintiff was born in the United Kingdom in 1943. He was a high achieving student at school, and successfully completed a science degree at university. The plaintiff migrated to Australia in about 1968, in order to commence employment as a lecturer at Longerenon Agricultural College, near Horsham. He remained employed by that college until the early 1990s. During that time he had a number of promotions, and ultimately became vice principal. The plaintiff married in about 1971, and he and his wife had two children.

3 The plaintiff claims that during his early teenage years he suffered sexual abuse by his mother. He has also described two episodes of cross-dressing as a female during his childhood. It seems, from the materials, that there was a further episode of such conduct before the plaintiff's marriage, and after he arrived in Australia. In addition, about two years after he married, the plaintiff reverted to cross-dressing. At his wife's insistence, he consulted Dr Stanley Gold, a psychiatrist, on about two occasions. At Dr Gold's recommendation, the plaintiff attended a club for transvestites who were accustomed to cross-dressing. Nevertheless, the plaintiff's marriage survived, albeit with some difficulties, until the early 1990s. At that time the plaintiff again reverted to cross-dressing. At the suggestion of another man who indulged in that behaviour, the plaintiff consulted the first defendant, Dr Trudy Kennedy, a psychiatrist, in November 1992. During the next four years, the plaintiff attended Dr Kennedy, the second defendant, Dr Grant and Dr Herbert Bower, who were associated psychiatrists, on a number of occasions. I interpolate that Dr Bower died on 29 September 2004, and his estate has not been joined as a defendant in the proceeding.

4 It appears that Dr Kennedy, Dr Grant and Dr Bower practised in association with a clinic known as the "Gender Dysphoria Clinic", which was conducted by Monash Medical Centre. The fifth defendant, Southern Health, is the successor at law to the Monash Medical Centre. The plaintiff has joined the fifth defendant, alleging that it is vicariously liable for the conduct of the first, second, and sixth defendants.

5 The plaintiff attended the Gender Dysphoria Clinic on a number of occasions between 1992 and 1996. During that time he generally saw Dr Kennedy, Dr Grant and Dr Bower. He states that each three months, over a period of one or two days, he would have 30 minute sessions with Dr Bower, Dr Grant and Dr Kennedy. In June 1993, he was referred by Dr Kennedy to the sixth defendant, Dr Patricia Miach, who is a psychologist. Dr Miach saw the plaintiff on one occasion on 14 June 1993, and provided a report detailing her assessment of the plaintiff. The report concluded:

In summary, (the plaintiff) appears to be a transsexual despite his relatively late presentation. ... He appears to be a suitable candidate for gender reassignment.

6 The plaintiff first saw Dr Bower in about August 1993. In his evidence he stated that, almost immediately after he had entered Dr Bower's consulting room, Dr Bower told him that he was a suitable candidate for surgery, and indicated that surgery could occur in the relatively near future.

7 In the meantime, the plaintiff was continuing to dress as a female. He stated that when he first saw Dr Kennedy, she advised him that the programme offered by the Gender Dysphoria Clinic was only available to people who were not married. Shortly after that consultation the plaintiff and his wife separated, and they divorced in 1993. At the same time, the plaintiff was experiencing a number of difficulties in his employment, because of his habit of dressing as a woman. Ultimately, his employment with the agricultural college ceased in about 1995. At the same time, the plaintiff commenced a turbulent de facto relationship with another woman, Irene Ryan. Ms Ryan was an alcoholic of mercurial temperament, who was also addicted to Pethidine. On one occasion she attacked the plaintiff with a knife, whereby he had to enlist the assistance of the police to obtain an intervention order against Ms Ryan. In early 1999, Ms Ryan died because of a drug overdose.

8 In the meantime, the plaintiff was assessed by Dr Kennedy, Dr Grant and Dr Bower as being a suitable candidate for gender reassignment surgery. For that purpose, he was first referred to the fourth defendant, Mr Graham Isaacs, a plastic surgeon, in early 1994. Ultimately, he was scheduled to undergo that surgery in November 1996. He signed a consent form for that procedure dated 8 October 1996. In that form, he acknowledged that he had been advised by Drs Kennedy, Grant and Bower that he was a transsexual, that they had fully explained to him the nature of transsexuality, and that they had recommended to him that "as part of my treatment I undergo the said operation". On 4 November 1996, Mr Isaacs performed that operation at The Avenue Hospital. The operation comprised the removal of the plaintiff's penis and testicles, and the fashioning of a vagina in their place.

9 The plaintiff stated that a few days after the surgery, he felt repulsed by what had been done to him. He continued in his relationship with Ms Ryan until her death in 1999. Although in his evidence he did not remember doing so, the medical records of the Gender Dysphoria Clinic reveal that he saw Dr Kennedy on one occasion on 3 April 1997. He failed to attend a subsequent appointment with her on 17 July 1997. During the years which passed after the operation, the plaintiff became disturbed by and angry with the operation which had been performed on him. He saw Dr Bower on 9 August 2000. However, he refused to sign a Medicare form, and Dr Bower declined to see him. At that time, according to the plaintiff, Dr Bower expressed the view that the plaintiff's transsexuality was genetic, and he told the plaintiff that he had never had occasion to treat a person after that person had undergone a gender reassignment operation. In frustration, the plaintiff, in December 2000, sent Christmas cards to both Dr Kennedy and Dr Bower. The cards were identical, save that there was some extra handwriting on Dr Bower's card. The cards were the subject of cross-examination and submission. They each stated:

Thank you for your part in my CASTRATION and SEXUAL LOBOTOMY. There is NO third gender. We are not "candidates" for experimentation. Merely human beings with an unformed, deformed or repressed sexuality?

How can someone who has performed a male role for 50 years be anything but a man? Surely your role is to lead him back from his mania? Is it not right that the "sexual window" closes in infancy?

When a man's sexual preference is woman how do you expect him to relate sexually after castration? What research have you done on his "adjustment" in this area? There is no adjustment - only pain.

You endorse the physical mutilation of disturbed human beings and create surgically manufactured freaks. How do you sleep at night?

10 The plaintiff did not receive a response to those cards. In about 2002, he moved his address to Flowerdale. In about 2000, he came into contact with Ms Zenovia Martin. Ms Martin is an academic, as well as a writer and artist. Although her precise status is not clear, it appears that she is also a counsellor. She befriended the plaintiff, and began to provide some unpaid counselling assistance to him. The plaintiff states that, at about this time, he was undergoing a transition back to presenting himself as a male. In mid 2001, he started to take drugs to restore his hormone balance, began dressing as a male, and resumed his name "Colin Edwards". The transition was difficult, because he had already lost his family, his employment and his identity. He approached the Gender Dysphoria Clinic at Southern Health, but was given no assistance by them.

11 On 2 September 2003, the plaintiff saw a television programme "Australian Story" on ABC Television. It featured another person who was in a similar position to him, Mr Alan Finch. The programme also included a reference to Mr Finch's psychiatrist, Dr Byron Rigby. The plaintiff made contact with Dr Rigby, and through him came into contact with Mr Finch, and with another person who had undergone gender change. That person was the wife of a Mr Maguire. It appears that in the ensuing years, the plaintiff had email contact with Mr Maguire. Mr Finch and Mr Maguire suggested that the plaintiff undertake freedom of information searches, in order to ascertain what was in his medical file.

12 Accordingly, the plaintiff made a request for his file to the Monash Medical Centre under cover of a letter dated 22 March 2004. In that letter the plaintiff sought a complete copy of his medical report, together with a number of other documents specified by him. He did not receive an adequate response to that request. Accordingly, on 9 June 2004, he made a written complaint to the Victorian Ombudsman. On 29 June 2004, the plaintiff received a letter from the corporate counsel of Southern Health. That letter stated that the plaintiff's file was being prepared for him, subject to some deletions. In the next three pages, the letter, in some detail, addressed the other requests made by the plaintiff. It sought clarification of some of his requests, and also advised him of the refusal of Southern Health to grant access to some of the documents which he sought.

13 Shortly after receiving that letter, the plaintiff received a copy of his medical file from Southern Health. In it he read two files notes made by Dr Bower.

14 The first file note dated September 2004, states:

Looks a bit more feminine, better adjustment in Horsham. Should have surgery although I doubt whether it will make much difference in her life.

15 The second file note dated December 1994, reads:

Initially cold - as usual but gradually more forthcoming and talks about rejection by children, work situation and isolation. Needs psychotherapy - but who?

16 In his evidence, the plaintiff stated that he did not receive any psychotherapy from Dr Bower or from any of the defendants.

17 The plaintiff stated that when he read those notes by Dr Bower, he began to query whether the treatment he had received from Dr Kennedy and the other defendants "had been in breach of proper procedures and possibly negligent"[1]. Ultimately, he first consulted solicitors in relation to the matter when he saw Ms Anne Shortall, of his instructing solicitors, on 15 March 2007. Ms Shortall promptly issued a generally endorsed writ on behalf of the plaintiff on 17 April 2007.

18 In response to the amended statement of claim, the defendants have each pleaded that the plaintiff's claim is and was barred pursuant to s 5(1AA) and s 27D of the Act. The plaintiff, accordingly, issued the present summons seeking an extension of time pursuant to s 27K of the Act. It appears that the plaintiff also sought, as an alternative, and by way of preliminary determination pursuant to r 47.04, a declaration that his claim was not statute barred. However, Mr Tobin SC, who appeared with Mr J. Brett for the plaintiff, conceded that by reason of s 27N(4), the plaintiff's claim is barred under s 27D of the Act. Accordingly, the application before me is confined to an application for an extension of time.

19 The provisions of the Act relevant to the plaintiff's application are s 27K and s 27L. Section 27K provides:

(1) A person claiming to have a cause of action to which this Part applies may apply to a court for an extension of a period of limitation applicable to the cause of action under Division 2.

(a) may hear any of the persons likely to be affected by the application as it sees fit; and

(b) may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.

(3) If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action by the applicants in that court on the cause of action that the applicant claims to have.

(1) In exercising the powers conferred on it by s 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following -

(a) the length of and reasons for delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action or of the plaintiff against the defendant;

(d) the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;

(e) the time within which the cause of action was discoverable;

(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the action or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.

(2) To avoid doubt, the circumstances referred to in sub-s(1) included the following:

(a) whether the passage of time has prejudiced a fair trial of the claim; and

(b) the nature and extent of the plaintiff's loss; and

21 It is first relevant to outline, in a little detail, the nature of the claim which the plaintiff seeks to make against the defendants in his amended statement of claim. The plaintiff pleads that each of the first, second, fourth and sixth defendants owed him a duty of care, and that that duty of care required each of them to: examine and diagnose his complaints and symptoms objectively; assess the plaintiff in accordance with the diagnostic criteria, which were recognised and prevailing at the time; and treat the plaintiff appropriately and, in particular, in accordance with the treatment practises prevailing at the time. The amended statement of claim pleads that each of the first, second and sixth defendants acted in breach of their duty of care, because the advice given by them to or in relation to the plaintiff was in breach of prevailing diagnostic criteria, and was given without taking an adequate history, so as to achieve an appropriate diagnosis. The amended statement of claim pleads identical particulars in respect of the breaches alleged against the first and second defendants. First, it pleads that the plaintiff did not comply with the diagnostic criteria of transsexualism in four specified respects. Secondly, it pleads that the first and second defendants did not act in accordance with international protocols associated with gender dysphoria patients known as the "Harry Benjamin Standards of Care" in three specified respects. Thirdly, it pleads that the plaintiff did not comply with the diagnostic criteria of "Gender Identity Disorder", described in the Diagnostic and Statistical Manual of Mental Disorders, 4th ed ("DSM - 4"). Fourthly, it is pleaded that the first and second defendants each failed to adequately ascertain the plaintiff's history, which included: events of a sexual nature occurring between the plaintiff and his mother, when the plaintiff was aged between eight and 15 years; associated sexual confusion, including the plaintiff wearing his mother's underwear and masturbating in them; and associated feelings of guilt, shame, embarrassment and confusion. The fifth particular is that the first and second defendants each failed to have adequate regard to the opinion of Dr Bower, stated in the note dated September 1994 (to which I have referred), that he doubted that surgery on the plaintiff would "make much difference in her (sic) life".

22 The particulars of the alleged negligence of the sixth defendant, Dr Miach, in the provision of her psychological report, are similar to those provided in respect of the first and second defendants. First, it is alleged that the sixth defendant failed to assess the plaintiff adequately in accordance with the diagnostic criteria of "Gender Identity Disorder" described in DSM - 4. Secondly, it is alleged that the sixth defendant diagnosed the plaintiff as "appearing to be a transsexual", when the plaintiff did not comply with the diagnostic criteria of transsexualism in four specified respects. Thirdly, it is alleged that the sixth defendant failed to adequately investigate the plaintiff's history, in the same respects in which it is alleged that the first and second defendants failed to investigate his history.

23 The cause of action pleaded in the amended statement of claim against the fourth defendant is that the gender reassignment procedure, performed by him, was in breach of his duty of care to the plaintiff, because "that procedure was performed without a proper diagnostic foundation being provided". The particulars of negligence allege that the fourth defendant conducted no adequate psychiatric assessment of the plaintiff, that he relied on the diagnoses by the first, second and sixth defendants, and that he ought to have independently diagnosed the condition of the plaintiff, and ensured that the diagnoses by the first, second and sixth defendants had been properly performed in accordance with existing protocols.

24 The question, which I must determine, essentially involves the exercise by me of a judicial discretion. The submissions in this case focussed on a number of the factors identified in s 27L, and in particular: the length of the delay, on the part of the plaintiff in issuing these proceedings; the reasons for that delay; the question of prejudice to the defendants; and the nature of the claim made by the plaintiff, particularly having regard to the loss and damage asserted by him, and the nature of the defendants' conduct alleged by him. Ultimately, each of those factors are relevant and weighty. Self-evidently, taken individually, a number of them lead to different conclusions. The weighing of those factors, and the determination of what is "just and reasonable" in the circumstances, involves a synthesis of those competing considerations, taking into account that it is the plaintiff who bears the onus of persuading me that it is just and reasonable to extend the limitation period applicable to his cause of action.[2]

25 In considering that question, it is important to bear in mind the purposes served by the limitation periods prescribed by s 5(1AA) and s 27D of the Act. In Brisbane South Regional Health Authority v Taylor[3], McHugh J identified four "broad rationales" for the enactment of limitation periods. First, as time passes, relevant evidence may be lost. Secondly, it may be oppressive to a defendant to allow a proceeding to be brought against him long after the circumstances which gave rise to it have passed. Thirdly, people should be entitled to arrange their affairs, and utilise their resources, on the basis that claims can no longer be made against them. Fourthly, the public interest requires that disputes be settled and disposed of without undue delay.

26 Section 27L(1) and (2) specify a number of relevant considerations to which the Court should have regard in determining the exercise of its discretion. In the context of the issues in this application, those factors can be usefully grouped into four categories, namely -

(1) The length of the delay by the plaintiff in issuing proceedings against the defendant (s 27L(1)(a)).

(2) The reason for the delay by the plaintiff (s 27L(1)(a)). In determining this issue, it is relevant to take into account considerations such as the extent to which the defendant had taken steps to make available, to the plaintiff, the means of ascertaining the facts which might have assisted him in identifying his cause of action (s 27L(1)(c)); the time within which the plaintiff's cause of action was "discoverable" (s 27L(1)(e)); the extent to which the plaintiff acted promptly and reasonably once he knew that an act or omission of the defendant, which caused his injury, might be capable of giving rise to a claim for damages (s 27L(1)(f)); and the steps, if any, taken by the plaintiff to obtain appropriate advice (s 27L(1)(g)).

(3) The extent to which, having regard to the plaintiff's delay, there is, or is likely to be, prejudice to the defendants (s 27L(d). Central to that question is whether, in light of the delay, there has been, or is likely to be, such prejudice to the defendants that they might not have a fair trial of the plaintiff's claim against them (s 27L(2)(a)). Further, in my view, it is relevant to take into account the type of prejudice identified by McHugh J in Brisbane South Regional Health Authority v Taylor, namely, the unfairness of subjecting a person to a claim for professional negligence a substantial time after the events, which are the subject of the claim, took place.

(4) The nature and extent of the plaintiff's loss, and the nature of the conduct alleged against the defendants (s 27L(2)(b) and (c).

27 Each of the four categories of factors, which I have set out above, were the subject of detailed focus by counsel, both in cross-examination of the plaintiff, and in submissions before me. It is convenient to deal with each of the factors in that order, bearing in mind the important principle, identified by Buchanan JA in Tsiadis v Patterson,[4] that the exercise of the discretion, ultimately, involves a synthesis of a number of competing factors.

28 It is common ground that the plaintiff's cause of action, as pleaded in the amended statement of claim, accrued on 14 November 1996. The plaintiff has not pleaded any negligence by the defendants after the performance by the fourth defendant of the gender reassignment surgery on that date. The proceeding was issued on 17 April 2007. Accordingly, the period of delay is more than ten years and five months.[5] I agree with the submission made by Mr Noonan SC, who appeared with Mr S. O'Meara for the first defendant, that, in the absence of proper explanation, such a period of delay may properly be described as "inordinate".[6]

29 The length of the delay by the plaintiff throws into sharp focus the reasons given by him for not having proceedings issued on his behalf within the time prescribed by the Act.

30 In his affidavit in support of the application, the plaintiff referred to the receipt by him of his hospital file shortly after 29 June 2004. He then stated:

1. Eventually, when I was able to read my file, I read comments such as:

'Needs psychotherapy' (psychotherapy had never been suggested to me and did not take place) and

Should have surgery although I doubt whether it will make much difference in her life'.

It was when I saw comments such as these that I started to query whether the treatment I had received from Dr Kennedy and the other defendants had been in breach of proper procedures and possibly negligent. From recollection, I think that I obtained the file in approximately the second half of 2004. Exhibited hereto are true copies of clinical records of Monash Medical Centre from which the above quotes are taken.

(14) After learning that there was possible negligence, I then had to deal with the fact that the negligence of others had cause (sic) me to lose my family, my job and my identity. At that time I was living, as now, in a rural community. I was suffering from depression which was treated by a GP in Reservoir, Dr Traill. I was in touch with Zenovia Martin but I could not afford to pay her and accordingly was receiving such assistance as she could give me on an unpaid basis. For these reasons, it took me some time before I consulted solicitors.

(15) I first consulted solicitors in relation to this matter when I saw Ms Anne Shortall of Arnold Thomas and Becker on 15 March 2007. I first had knowledge that there was negligence by the Defendant after receiving her advice. Since that time, the case has proceeded under her guidance.

(16) I have been reluctant to investigate this matter because of the fear of publicity. During the period that I was acting as a woman, I had had four arson attacks at my property, and my car had been subject to arson and graffiti and ultimately damaged beyond repair. This was due to the reaction of local people to my gender change. I was (and remain) terrified that exposure of my past to the neighbours in a rural community could have very severe consequences.

31 In cross-examination by Mr Noonan SC, the plaintiff stated that a few days after his operation, in November 1996, he saw what had happened to him as a consequence of the surgery, and he felt repulsed by what he saw. He stated that he had then regarded what had taken place as "an abomination". He agreed that the view which he held, that the operation had been an abomination and was wrong, had never changed. In answer to questions from Dr Freckleton SC, who appeared for the fourth defendant, he said that he was appalled and distressed very shortly after the operation. He described his emotions as bits and pieces of a jigsaw puzzle, and said that he saw parts separately at different times. He said the mutilation of him had been one part. He stated that, at the early stage after the operation, he did not query whether the diagnosis by the doctors of his condition had been wrong. He also stated that that period of life was particularly turbulent for him, bearing in mind the difficult relationship which he then had with Ms Ryan. He said that after she died, he was in grief and isolated, but he did have a period of calm in which he could focus better on what had happened to him.

32 The plaintiff was referred, by Mr Noonan, to the card, which he had sent to Dr Kennedy and to Dr Bower in Christmas 2000. He agreed that, at that time, he considered that he had been physically mutilated, and that Dr Kennedy had played a major role in his physical mutilation. He said that was the view, which he held in respect of each of the psychiatrists who had played a role in the decision to allow him to undergo surgery. He also held that view about Mr Isaacs. He agreed that he considered, as at Christmas 2000, that each of the psychiatrists had been responsible for the creation of him as a "surgically manufactured freak". He stated that his then view was that there had been a mistake by Dr Kennedy, and that Dr Kennedy, Dr Grant and Dr Bower should never have endorsed the gender reassignment operation which he underwent. He said that at that time he was very hurt, alone and isolated. He was then condemning Dr Kennedy, but also calling for help from her. He stated that, generally, the Christmas card reflected the views which he held at that time, although it was written with "over emphasis". He agreed that he was then of the view that Dr Kennedy should have led him back from his "mania", rather than recommended that he undergo surgery.

33 The plaintiff was cross-examined about whether he had attended Dr Kennedy and Dr Bower after the operation. Initially, he stated that he never saw Dr Kennedy after his operation. When he was referred, by Mr Noonan, to a note from the Southern Health file dated 3 April 1997 recording a consultation by Dr Kennedy with him, he stated that he did not recall the consultation. He agreed that he saw Dr Bower in 2001, but he was frustrated by Dr Bower's admission, to him, that he had never seen a post-operative transsexual. He said that Dr Bower insisted on discussing gene theory. As a result, the plaintiff refused to sign a Medicare form for Dr Bower's fees, because he considered that he was giving Dr Bower information, and Dr Bower was doing nothing for him.

34 The plaintiff was then cross-examined about a consultation which he had with Mr Isaacs on 27 November 2001. Mr Isaacs swore an affidavit in these proceedings, in which he stated that, on that date, the plaintiff had attended his consultation rooms in a very distressed state, saying that he should never have proceeded with the gender reassignment surgery. The plaintiff told Mr Isaacs that he blamed the psychiatrists and the Monash Medical Centre team for not trying to talk him out of undergoing plastic surgery. The plaintiff stated that he was going to try to live as a male, and he asked whether it was possible to have reversion of the operation. Mr Isaacs told the plaintiff he did not think he was a suitable patient for reconstruction. Mr Isaacs exhibited to his affidavit a file note, which is consistent with his description of the consultation set out in his affidavit.

35 In cross-examination, the plaintiff agreed that when he saw Mr Isaacs on 27 November 2001, he stated that he should never have undergone the operation, and that he blamed the psychiatrists and the Monash Medical Centre for not trying to talk him out of proceeding with the surgery. He agreed that after seeing Mr Isaacs, he was still angry with the fact that the operation had taken place, and that that feeling had never gone away.

36 The plaintiff was then cross-examined about the television show "Australian Story - Boy Interrupted", which he saw on the ABC on 2 September 2003. The fourth defendant's solicitor swore an affidavit in this application, in which she exhibited a transcript of that programme. In the course of the programme, Dr Rigby made comments critical of gender reassignment surgery, and stated:

I can't imagine how it could be medically justified in the absence of much, much more adequate counselling than what I understand (Alan Finch) received

and

I think it warrants a full investigation at a governmental level.

37 In cross-examination, the plaintiff stated that he did not recall Dr Rigby making those comments. He confirmed that, after watching the show, he made contact with Mr Finch. He also spoke to Mr Maguire. He had made those contacts because he was in pain and was alone, and he was looking to other people to talk to. He wanted to talk to Mr Finch about how he was handling his situation. He agreed, in cross-examination by Mr Noonan, that, at about the time at which he sent the FOI application to Southern Health in March 2004, he knew that Finch was commencing legal proceedings against his doctors. However, Maguire had not, at that stage, told him that Maguire's wife was proposing to take proceedings against the doctors and the hospital. In later cross-examination by Mr Murdoch (counsel for the fifth defendant), he agreed that it was possible that Maguire was then encouraging him also to undertake litigation against his doctors, as Maguire was going through "those types of processes" himself. He also agreed that it was quite likely in 2004 that he understood that if he was to take action he had to act promptly, but he could not recall whether that was his then actual state of mind.

38 In cross-examination by Mr Noonan, the plaintiff stated that when he received the letter from Southern Health on 29 June 2004, he felt that he had hit another bureaucratic wall, and that he was upset and depressed. He received the file shortly after that. He said, in cross-examination by Mr Noonan, that he would have read the file within a few days of receiving it. When he read it, he focussed on how unhelpful the defendants had been, and he had noted the "snide cynical comments" which he detected in the file concerning him. He said that when he read the FOI documents, "I felt completely alone and abandoned, I fell in a deep hole." He was then living in Flowerdale on his own. The plaintiff said that he had been suffering from depression, and he had been consulting Dr Traill, at Reservoir, between 2001 and 2003. Dr Traill had prescribed antidepressant medication for him. In 2004, after Dr Traill left his practice, the plaintiff commenced to see Dr Bocter. However, he did not request Dr Bocter to prescribe him any antidepressant medication. In 2007, the plaintiff consulted Ms Shortall, after ascertaining from the internet that Mr Finch had used her as his solicitor. By that time, he had learnt that Mr Finch had settled his proceeding. He said that he attended Ms Shortall to ascertain whether the doctors had been negligent. He had started to query whether the treatment of him had been in breach of proper procedures, and he understood that there might have been some possible negligence on their behalf.

39 In cross-examination by Dr Freckleton, the plaintiff agreed that he had not seen a psychiatrist or psychologist since 2003. He had not sought any antidepressant medication. He lived with his depression, but he had lived with it "poorly". In cross-examination by Mr Murdoch, he described Ms Zenovia Martin as a young lady studying for a Masters degree in gifted education. He had not engaged Ms Martin as a counsellor, but she provided support services to him free of charge. He could not afford to pay for her counselling. The plaintiff is still in contact with her intermittently. During the Black Saturday bushfires on 7 February this year, the plaintiff's house burnt down and Ms Martin has permitted him to stay in a caravan on her property.

40 In re-examination by Mr Tobin SC, the plaintiff stated that the first time he had any appreciation that there might be a legal liability on anyone, in relation to his operation, was when he consulted Ms Shortall in early 2007. He said that in late 2006, he had formed a suspicion that there may have been a reason to consult a solicitor. He said that when he received the medical file in 2004, he scanned it, but did not read it carefully. He stated that he first formed the view, that there was a possibility of negligence by the doctors, in 2006. He said he had been unable to cope with reading the file in detail before that. He said that his scanning of the documents in 2004 showed him that there was nothing "caring" in the documents. He saw those documents as another "brick wall". He stated that he spent a lot of time in "deep depression" living as a hermit. He had isolated himself, and he was "at the bottom of my life". He said he did not, then, feel capable of seeking legal advice, because he was "completely devastated, deflated".

41 The defendants submitted that the plaintiff had not established any acceptable explanation or excuse for the long delay before he issued proceedings in this case. Mr Noonan drew my attention to the Christmas cards sent by the plaintiff to Dr Kennedy and Dr Bower in December 2000, and to the plaintiff's evidence that, by that time, he was sorely aggrieved by the operation performed on him. In particular, he agreed that the psychiatrists should have counselled him to cure his cross-dressing "mania", rather than recommend that he undergo such radical surgery. Mr Noonan submitted that the plaintiff's consultation with Mr Isaacs on 27 November 2001 reinforces the conclusion that, by then, the plaintiff knew that what had been done to him was wrong, and that he blamed the psychiatrists for his unfortunate condition. Mr Noonan submitted that, given the plaintiff's level of intelligence and education, it is reasonable to conclude that, well before March 2004, he had sufficient understanding of the concept of "negligence" to appreciate that he might have a viable cause of action against the psychiatrists.

42 Mr Noonan noted that the plaintiff principally relies on the fact that he was suffering from a depressive condition, his fear of publicity, and the fact that he was alone, abandoned and isolated, as reasons why he did not seek legal advice earlier in respect of his potential rights against the defendants. Mr Noonan submitted that I should conclude that the plaintiff was not a reliable witness. He drew my attention to a number of matters, elicited in cross-examination, which he submitted demonstrated that the plaintiff was an untruthful and unreliable witness. Further, he emphasised the fact that the plaintiff had not called any evidence in support of his claim that, during that time, he was so debilitated by depression and isolation, that he could not form the conclusion that he had a potential claim against the defendants, nor cope with seeking legal advice in relation to his rights in that respect. Mr Noonan, in particular, highlighted that the plaintiff had failed to call supporting evidence from Dr Traill and Dr Bocter, his two general practitioners, as to his general medical state during the period in question. He further submitted that the plaintiff's failure to call evidence from Ms Martin is significant, given his close relationship with Ms Martin. He argued that Ms Martin is well placed to give evidence, from a "layman's" point of view, as to the plaintiff's emotional state during the period in question. Mr Noonan submitted that the plaintiff has not given any proper explanation for his failure to call evidence from Dr Traill, Dr Bocter and Ms Martin. Accordingly, he submitted that I should draw an inference that those witnesses would not have assisted the plaintiff, if they had been called to give evidence.[7]

43 Mr Noonan submitted that the plaintiff's professed fear of publicity is not a sufficient explanation for his delay in issuing proceedings. In cross-examination, the plaintiff stated that it was at an "earlier stage" that he was reluctant to issue proceedings because of his fear of litigation, but since then he has been stronger in himself, and he has had greater reason to pursue those proceedings. Mr Noonan submitted that although the plaintiff has lived an isolated life, nevertheless, he had a relationship with Ms Ryan, until 1999. He has been in contact with Ms Martin since 2000, and he has been under the successive care of Dr Traill and Dr Bocter since 2001.

44 In response, Mr Tobin submitted that, in assessing the reasons given by the plaintiff for his delay in issuing proceedings, it is important to take into account that the plaintiff is now viewing his reactions in hindsight. He submitted that when the plaintiff first consulted the defendants, he was deeply disturbed. His life was then undergoing enormous change. He terminated his marriage, his work came to an end and he took to cross-dressing on a permanent basis. During that time, he was in a turbulent and destructive relationship with Ms Ryan. All those events were taking place at about the time when he consulted the defendants, and then underwent the radical surgery recommended by the first, second and sixth defendants. He submitted that, from that perspective, it is understandable that, although the plaintiff was angry and upset about the operation shortly after it occurred, he did not then turn his mind to the potential legal liability of the defendants. His life continued to be in turmoil, particularly in his relationship with Ms Ryan. When he contacted Dr Kennedy and Dr Bower and sent the Christmas cards, he was looking for treatment and help, none of which was forthcoming. He did not, then, know that the defendants had failed to apply the requisite criteria for recommending the type of operation to which he had been subjected. No information had been given to him that their diagnoses and treatment had been in breach of relevant diagnostic criteria.

45 Mr Tobin emphasised that, in order that someone see the need to undergo the type of surgery undertaken by the plaintiff, such a person must be suffering from a substantial mental or emotional disorder concerning his sexuality. In those circumstances, it would be wrong for this Court to apply the same standard of rationality which one might expect of another plaintiff who had undergone a more "orthodox" medical procedure. Although the plaintiff received the Southern Health documents in 2004, those documents shortly followed the letter from the corporate counsel of Southern Health. The content and tone of that letter was such as to demoralise the plaintiff, who felt that he had run into a bureaucratic brick wall. Mr Tobin drew my attention to the file note of Mr Isaacs of 27 November 2001, in which he expressed the view that the plaintiff needed to have counselling and psychiatric support.

46 Mr Tobin acknowledged that, in the circumstances of this case, an inference might be drawn that Dr Traill, Dr Bocter and Ms Martin would not have assisted the plaintiff, had they been called to give evidence. However, he submitted that that inference should not displace the weight of the matters to which he had referred. He submitted that the plaintiff's claim, that he was then in a psychologically vulnerable condition, has objective support, from the nature of the operation undertaken on him, from the fact that he had no expert psychological counselling available to him, and from the fact that he was then living in an isolated and demoralised state. Mr Tobin submitted that, at least until 2004, the plaintiff only had a suspicion that the doctors might have been negligent. When the plaintiff sought to consult Dr Bower and Dr Kennedy, he found each of them to be unhelpful. Their failure to provide adequate therapy and assistance to him left him in a state in which he could not formulate an appropriate view as to whether he should seek legal advice about his treatment by them.

47 In considering the reasons for the plaintiff's delay in the issuing of proceedings, I take into account, and give full weight to, the nature of the plaintiff's condition which, in the opinion of the defendants, warranted him undergoing the gender reassignment surgery, and to the nature of that procedure itself. However, despite Mr Tobin's submissions, there is no evidence in the file of Southern Health indicating that the plaintiff was then subject to any disturbance in the technical psychiatric or psychological sense of that term. There are some indications in the doctors' notes of some psychological issues. For example, the file notes of Dr Bower on 6 August 1993 and December 1994 contain the entry "needs psychotherapy". Dr Grant, in a note of the same date, observed that the plaintiff was mildly depressed, but that he had no psychotic features. In a further note dated 2 December 1994, Dr Grant noted that the plaintiff apparently suffered a major depressive episode, and Dr Grant recorded that, on that date he was mildly depressed on presentation.

48 I also take into account the fact that the plaintiff underwent an extraordinary and radical procedure which, of its nature, could only have had a significant impact on his emotional and psychological state. It is clear that in the years following his surgery the plaintiff received little or no psychological or psychiatric support. At the same time, he was in the middle of a deteriorating and turbulent de facto relationship, he was estranged from his former wife and children, and he had lost his employment, in which he had previously been successfully engaged for more than twenty years. In those circumstances, it is understandable that the plaintiff did not, during that time, methodically and logically connect all the points of his dissatisfaction with the surgery and, at that stage, pursue his legal rights in respect of it.

49 The Christmas card which the plaintiff sent to Dr Kennedy and Dr Bower was, quite clearly, the product of considerable distress and anger on behalf of the plaintiff. Nevertheless, there are three significant points which Mr Noonan made in respect of it. First, the plaintiff, by then, was irrevocably dissatisfied with the gender reassignment surgery having taken place. Secondly, the plaintiff had formed the view that the role of Dr Kennedy (and Dr Bower) should have been to "lead him back from his mania"; in other words, he was of the opinion that the psychiatrists should not have counselled him to undergo the surgery but, rather, their duty had been to appropriately treat him so as to counteract his desire for it. Thirdly, the plaintiff had formed the view that the psychiatrist had not undertaken adequate research on post-operative transsexuals. In cross-examination, the plaintiff agreed that each of the views, which he held at Christmas 2000, had been the product of thought by him over the four years which had passed since his surgery. By then, he was of the view that the operation should not have taken place, and that the psychiatrists should never have endorsed it.

50 Furthermore, the plaintiff's evidence satisfies me that by Christmas 2000 the plaintiff had been firmly of the view that the psychiatrists had not treated him appropriately. The views expressed by the plaintiff in his Christmas card had been consistently held by him for some time before he sent it. He stated in his evidence, and I accept, that he has remained firmly of that view to the present date. Thus, it is not surprising that, on 27 November 2001, he stated to Mr Isaacs that the operation should never have proceeded, and that he blamed the psychiatrists and the Monash Medical Centre team for not trying to talk him out of it.

51 By 2004, the plaintiff knew that at least one other person, who had undergone the same surgery, namely Mr Finch, had either commenced, or was about to commence, legal action against the doctors, who had advised him to undergo such surgery. The plaintiff obtained a copy of his medical file in about September 2004. In cross-examination, he stated that shortly after he obtained the file, he read it and noted its contents. That statement is consistent with the tenor of paragraphs 13 and 14 of the plaintiff's affidavit. In re-examination, the plaintiff said that he had only scanned the file at that time, and that he was only in a condition to read it properly in late 2006. However, my impression of the plaintiff was that, by then, he was rationalising his past conduct in stating that he had not read the document until 2006. I am satisfied that he knew, by late 2004, the matters which are set out in paragraphs 13 and 14 of his affidavit, and that, in particular, he knew that Dr Bower had placed on record some doubts whether the surgery would make much difference in the plaintiff's life, as well as stating that the plaintiff needed psychotherapy. I am satisfied that at that time the plaintiff was questioning in his own mind whether the treatment he had received from Dr Kennedy and the other defendants "had been in breach of proper procedures and possibly negligent", as deposed in his affidavit.

52 I accept the evidence of the plaintiff that he was demoralised by the contents of the letter dated 29 June 2004, sent to him by the legal counsel for Southern Health in response to the balance of his freedom of information request. That letter is somewhat legalistic and technical. I can well understand that the plaintiff might have been deterred by it from pursuing the balance of his FOI request. However, that circumstance does not adequately explain why the plaintiff did not then take steps to pursue his legal rights against the doctors, in circumstances when, having read his file, he formed the view that there was a basis for questioning whether the defendants had properly adhered to appropriate medical procedures. The plaintiff is an intelligent and educated man. His education, previous employment history and presentation in the witness box all demonstrate his intellectual abilities. Bearing in mind the plaintiff's concerns, expressed as early as 2000, about what had been done to him, and given his understanding of the medical file, I am well satisfied that, at least by late 2004, if not earlier, the plaintiff had a sufficient understanding that his doctors may have failed in their duty to him, to have warranted him seeking legal advice.

53 The principal explanation given by the plaintiff, as to his delay, was because he was severely depressed, particularly from 2000 to 2007. I accept that the plaintiff was living in difficult circumstances at that time. He was substantially isolated, had lost his employment, and was detached from his family. I also accept that it would be difficult for a person in his position to confront the prospect of commencing legal proceedings in respect of the type of procedure which he had undergone. However, on the evidence before me, I am not satisfied that the plaintiff's mental state was such as to provide a sufficient explanation for his long delay in commencing these proceedings. It is particularly pertinent that the plaintiff did not call Dr Traill, Dr Bocter or Ms Martin to give evidence to support the explanation given by him for that delay. No satisfactory explanation was advanced as to why those persons did not give evidence in this application. The two doctors would have been in a position to give evidence, at least in a general form, as to the plaintiff's mental state during that period. Indeed, the plaintiff stated that Dr Traill had prescribed him antidepressant medication during the years 2001 to 2003. The plaintiff stated that he also received some informal counselling from Ms Martin. It is significant that, up to the present time, he still has a good relationship with Ms Martin. Yet no evidence was called from Ms Martin. In these circumstances, it is appropriate for me to infer that none of those three persons, if they had been called, would have been able to assist the plaintiff in providing an appropriate explanation for his delay.[8] The plaintiff bears the onus of proof on this application. The length of the delay between the plaintiff's operation in 1996, and the institution of proceedings on his behalf in 2007, manifestly calls for an appropriate explanation to be proven by him. It was always inevitable that that issue would be prominent in this application. However, the plaintiff has chosen to give an explanation, unsupported by any other evidence. I accept that the plaintiff, during the period which is in question, has been the subject of mental and emotional anguish, and has been substantially isolated in his life. However, I gained the firm impression that he was given to overstating his evidence regarding the severity of his emotional state at that time. I am not satisfied, on the evidence before me, that the plaintiff's mental state was such as to provide an appropriate explanation for the plaintiff's long delay in issuing these proceedings.

54 Nor am I satisfied that the plaintiff's concern about adverse publicity had been such as to deter him from seeking legal advice and issuing legal proceeding. While he referred to the potential effects of publicity in his affidavit, he did not resort to that explanation during his evidence before me. In cross-examination by Mr Noonan, he stated that it was in the earlier stages that he had been reluctant to pursue litigation because of his fear of publicity.

55 In hindsight, it is difficult to specify a precise time at which, it might be concluded, the plaintiff is unable to provide an appropriate explanation for not seeking legal advice, concerning his rights, arising from the gender reassignment procedure carried out on him in 1996. In many respects, that assessment is a matter of degree. Nevertheless, as I have already stated, I am satisfied that, as of late 2004, the plaintiff had read the Monash Medical Centre file, which had been provided to him pursuant to his freedom of information application. I am satisfied that, at least by that time, the plaintiff had reached the state of mind described by him in paragraph 13 of his affidavit, namely, that he understood that there was a basis upon which he might question whether the treatment he had received from the doctors had been in breach of proper procedures and possibly negligent. By that stage, the plaintiff had, for quite some time, been aggrieved with the fact that the operation had been carried out on him. By at least 2000, he considered that what had been done was wrong, and he was blaming his psychiatrists for endorsing the procedure. Thus, I am satisfied that the plaintiff has not provided an appropriate explanation as to why he did not seek legal advice, as from late 2004.

56 It is not possible to be as categorical about the question of the plaintiff's explanation for his delay for the period preceding 2004. As I have stated, the question is a matter of degree. Certainly, at least from about 2000, the plaintiff had consistently held the view that what the psychiatrists had done was wrong and inappropriate for him. He was thoroughly dissatisfied that the procedure had been endorsed by them, and had been carried out. He is an intelligent and educated person well capable of understanding his rights. However, he had not, by then, met Mr Finch or received the medical file. He had, effectively, received no psychotherapy. The question why the plaintiff did not receive that therapy was not canvassed before me in detail. However, it does not seem that the defendants took any active steps to ensure that the plaintiff received psychological support and treatment in the aftermath of his operation, and in particular when he was complaining to Dr Kennedy and Dr Bower of his dissatisfaction with the procedure.

57 Certainly, I accept that during the whole of the period since his operation, the plaintiff has experienced emotional difficulty. However, as I have already stated, I regard the evidence which he gave in relation to his emotional state, particularly since 2000, to be exaggerated and overstated. His evidence, in that respect, is not supported by any independent witness. In particular, he has failed to call witnesses who might otherwise have been expected to support his claim, namely Dr Traill, Dr Bocter and Ms Martin. As I have already indicated, I infer that none of those witnesses would have assisted the plaintiff in this respect, had they been called to give evidence. The fact remains that, at least from late 2000, the plaintiff has been firmly of the view that what had been done to him was wholly wrong, and that he should not have undergone the gender reassignment operation. Mr Isaacs had advised him, in November 2001, that his condition was effectively irreversible. The plaintiff was of the view, expressed in the Christmas card of December 2000, that the psychiatrists should have counselled him in respect of his disorder, rather than endorse the operation. He remained steadfast in that view thereafter. The issue relating to the plaintiff's lack of explanation for seeking legal advice is not as clear cut, for the period 2000 to 2004, as it is for the period after that date. Nevertheless, based on the matters to which I have just referred, I have come to the conclusion that the plaintiff has failed to provide an adequate explanation for his failure to seek legal advice concerning his predicament, at least since the date at which he sent the Christmas card to Dr Bower and Dr Kennedy in December 2000.

58 The next question concerns the nature of any prejudice, occasioned to the defendants arising from the delay of the plaintiff in issuing proceedings against them. It is common ground that, for the purposes of s 27K of the Act, the material enquiry concerns the prejudice occasioned to the defendants by reason of the delay of the plaintiff in issuing proceedings since the date of the accrual of this cause of action in November 1996.[9]

59 Mr Noonan, whose submissions were supported by the other defendants, relied on four principal categories of prejudice which, he submitted, the defendants had sustained as a result of the delay of the plaintiff in this case, namely:

1. He submitted that a central issue in the plaintiff's claim concerns the nature of the histories taken by the treating psychiatrists, and the psychologist, from the plaintiff between 1992 and 1996. In particular, there is a significant issue whether the defendants asked questions of the plaintiff concerning his early childhood and family history, and whether he had been subjected to any sexual abuse at that time. Mr Noonan submitted that, in light of the long effluxion of time, the defendants would be at a significant disadvantage in seeking to rebut the allegation by the plaintiff that they had failed to explore that aspect of the plaintiff's history with him.
2. Dr Bower died on 29 August 2004. He is therefore not available to give evidence to support the diagnoses by Dr Kennedy, Dr Grant and Dr Miach, as to the suitability of the plaintiff to undergo a gender reassignment operation. Further, in particular, Dr Bower will not be available to give evidence to explain the two notes by him, in the Monash Medical Centre file, on which the plaintiff principally relies, as raising recorded doubts by him as to the appropriateness of the operation, which was ultimately carried out on the plaintiff.
3. The sixth defendant, Dr Miach, has sworn that, in about 2006, she arranged for a large number of inactive old patient files, held by her, to be destroyed. Those files included the plaintiff's file. Thus, the notes which she took when she consulted with the plaintiff on 19 June 1993 are no longer available. Although her psychological report, based on those notes, is available, nevertheless she will be at a significant disadvantage, because she does not have available to her the raw data on the basis of which the report was written. Mr Noonan submitted that that disadvantage not only prejudices the defence of the claim by Dr Miach, but it also affects the other defendants, including his own client. For, the absence of Dr Miach's notes will undermine the cogency of her evidence, on which Dr Kennedy (and the other defendants) would seek to rely in support of their own assessment of the suitability of the plaintiff for gender reassignment surgery.
4. Finally, Mr Noonan submitted that, given the substantial lapse of time since the events which gave rise to the plaintiff's cause of action, I should infer that the memories of Dr Kennedy and the other doctors would, necessarily, have deteriorated regarding the relevant aspects of the plaintiff's situation. They will therefore be prejudiced, not only in the evidence that each defendant would give on his or her own behalf, but also because the supporting evidence of co-defendants would be similarly compromised.[10]

60 A central focus of the cross-examination of the plaintiff, and the argument before me, concerned the issue of what questions were asked by the defendants, and Dr Bower, of the plaintiff, concerning his early family history. The particulars of negligence, alleged against each of the first, second and sixth defendants, claim that each defendant:

... failed adequately or at all to investigate the plaintiff's history, which history included -

1. events of a sexual nature occurring between the plaintiff and his mother when the plaintiff was aged between eight and 15 years;
2. associated sexual confusion, including the plaintiff wearing his mother's underwear and masturbating in them; and
3. associated feelings of guilt, shame, embarrassment and confusion.

61 It is common ground that, in his consultations with the first, second and the sixth defendants, and with Dr Bower, the plaintiff did not describe any of the matters relating to his childhood experiences, which are alleged in those particulars. In September 2008, the plaintiff was examined by Professor Richard Ball, psychiatrist, for the purpose of these proceedings. In the course of that examination, he detailed to Professor Ball a number of experiences of the type described in the particulars to which I have just referred. In his evidence-in-chief, he stated that, before he spoke to Professor Ball of those matters, he had not previously reported to any other psychiatrist the sexual abuse which he suffered in his home as a teenager.

62 In cross-examination, the plaintiff stated that during the period of four years in which he had consulted with Dr Kennedy, Dr Grant, Dr Bower and Dr Miach, none of them had discussed with him his relationship with his mother, his relationship with his father, or anything pertaining to his family life during his childhood and teenage years. In re-examination, he stated that when he saw Dr Kennedy, Dr Grant and Dr Bower, the consultations with them were for a maximum of thirty minutes each. He reiterated that he did not have a memory of any of them at any time enquiring as to any sexual abuse which he had suffered in his youth.

63 The plaintiff was cross-examined in relation to that matter by Mr Noonan. His attention was drawn to notes by Dr Grant of a consultation with the plaintiff on 6 August 1993, in which Dr Grant had noted, in relation to the plaintiff's family history, that his father was "very sensitive", and that no formal history was known. In cross-examination, the plaintiff stated that he did not recall having any discussions with Dr Grant about his family history, and that he had no knowledge of discussions with Dr Grant about it. Mr Noonan then asked the plaintiff about a notation by Dr Grant concerning the consultation, on the same date, which was to the effect that "home atmosphere 'conventional' and austere, every effort made 'not to upset anyone, especially father'." The plaintiff reiterated that he did not have any recollection of any probing of his family history, and, again, stated that he had not been asked by any of the psychiatrists whether he had been subjected to any form of abuse during his childhood. He accepted that he would have told Dr Grant that every effort had been made not to upset anyone at home, especially his father. He said that what was recorded relating to his family life being conventional was consistent with what he understood to be one aspect of his life. He maintained that he would have described the home atmosphere as being conventional, notwithstanding that he had been subjected to abuse. He explained that he had been presenting a rosy picture to himself as to what had been happening in his life. In further cross-examination, the plaintiff stated, however, that he did not have a positive recollection of the consultation of 6 August 1993.

64 Mr Noonan also cross-examined the plaintiff concerning a questionnaire completed by Dr Bower in consultation with the plaintiff on 6 August 1993. In particular, his attention was drawn to the section of the questionnaire relating to "father", adjacent to which is handwritten the word "formal", and to the section on the questionnaire "parental attitude to cross-dressing", next to which was written "disliked by mother - father did not know". The plaintiff stated that he could not remember that meeting with Dr Bower, and that he was under considerable stress at the time. He said that he did not recall Dr Bower discussing with him, on that occasion, the nature of his relationship with his mother. He agreed that, if Dr Bower did raise with him the topic of his relationship with his mother, it is a "good question" why no information was given by him to Dr Bower relating to the forms of sexual abuse which he had reported to Professor Ball. He further stated that his only recollection of the first session which he had with Dr Bower was that, shortly after he walked in to Dr Bower's rooms, Dr Bower looked at his calendar and stated, "Oh well, you'll be due for surgery on (a particular date)". In further cross-examination, he agreed that in 1993 he told Dr Bower that his grandmother had been involved in cross-dressing activities, but he said that he did not tell Dr Bower anything in relation to sexual abuse. He reiterated that he also did not advise Dr Kennedy, Dr Grant or Dr Miach of it.

65 The submission by Mr Noonan on this aspect of the case has some force. An important part of the plaintiff's case involves an allegation that, during four years of consultations with three psychiatrists and one psychologist before he underwent gender reassignment surgery, no-one asked him any questions about his childhood or family background, particularly in respect of matters relating to sexual abuse and the like. The plaintiff has specifically pleaded that omission as a particular negligence against the first, second and sixth defendants. It is clear from his evidence in this application that that issue would be alive at the trial of these proceedings.

66 Mr Tobin submitted that the issue, as to what questions were asked by the defendants of the plaintiff, will depend, primarily, on the notes taken by the doctors. The Monash Medical Centre file, which is an exhibit before me, contains a number of file notes by Dr Kennedy, Dr Grant and Dr Bower. It is not clear whether the file contains all the notes of the doctors in relation to their various consultations with the plaintiff. In his evidence before me, the plaintiff stated that he used to see Dr Kennedy, Dr Bower and Dr Grant every three months at their own rooms. Dr Kennedy and Dr Grant have not sworn before me that they do not have, or have access to, notes of those consultations. By contrast, Dr Miach has positively deposed that she no longer has the notes which she took in the course of her consultation with the plaintiff in June 1993. In those circumstances, I am entitled to infer that Dr Kennedy and Dr Grant do have access to the notes taken by them of their consultations with the plaintiff.

67 Nevertheless, and taking that fact into account, I do accept that the defendants will be at a disadvantage in the trial, in respect of the issue as to what questions they asked the plaintiff concerning his childhood experience. It is clear, from the evidence which the plaintiff gave before me, that he is firm in the belief that none of the doctors asked him any questions as to his family life, when he was a child, and particularly as to whether he had been subjected to any unusual sexual practises or sexual abuse at that time of his life. Thus, the defendants will be required to give evidence relating to consultations which they had with the plaintiff fifteen or more years ago. Even if the doctors do have notes to support their evidence, it is inevitable that the quality of their memories of their conversations with the plaintiff, and as to the substance of those conversations, will have been adversely eroded. Further, as McHugh J pointed out in Brisbane South Regional Health Authority v Taylor,[11] in cases such as these, prejudice may exist without the parties, or anyone else, realising that it does exist. In other words, if this case had been instituted expeditiously, the defendants may well have recollected something, outside whatever notes they made, which might have assisted them to meet or rebut the allegation made by the plaintiff.

68 In this connection, the loss of Dr Miach's notes is also significant. Dr Miach's report consists of two pages. It contains little information as to the plaintiff's history before he migrated to Australia. Dr Miach will be at a particular disadvantage, should I grant an extension of time in respect of the claim against her, since, without her notes, she may not be able to recall whether she broached with the plaintiff the issue of sexual abuse as a child. Even if Dr Miach has such a recollection, she will not have the support of her notes to lend confidence to that recall or, possibly, to tender in support of it. In this respect, I agree with Mr Noonan that any prejudice to Dr Miach as a witness would, of itself, have the potential to adversely affect the case of the other defendants. In particular, in so far as Dr Miach might give evidence in support of the diagnosis which she made of the plaintiff, that evidence would, if accepted, tend to reinforce the diagnoses by Dr Kennedy and Dr Grant that the plaintiff was suitable for a gender reassignment procedure.

69 In a similar way, the death of Dr Bower, in September 2004, will, in my view, result in potential prejudice to each of the defendants, for the reasons contended by Mr Noonan. Dr Bower will not be available to give evidence as to the questions which he asked of the plaintiff, and in particular as to the questions which he asked which elicited the responses noted by him on his questionnaire, and to which I have referred. Secondly, Dr Bower will not be available to give evidence to explain the notations by him, on the Monash Medical Centre file, to the effect that Dr Bower had reservations about whether gender reassignment surgery would benefit the plaintiff, and also to the effect that the plaintiff should undergo a course of psychotherapy before that surgery. The evidentiary status of those notes may be in dispute at trial. Certainly, they would be admissible if the plaintiff were able to establish that they came to the knowledge of the first and second defendants, or that they should have come to their knowledge. It is arguable that they may also be admissible as truth of their contents under s 55 of the Evidence Act 1958. Indeed, by the time this case would come on for trial, the Evidence Act 2008 will be in force, and the more liberal provisions of Part 3.2 of that Act may enable the plaintiff to have them tendered for the truth of their contents. In those circumstances, the absence of Dr Bower as a witness, to explain those notations, will, in my view, redound to the prejudice of the defendants at any trial of this proceeding. Thirdly, it is clear that, notwithstanding those notations, Dr Bower did, ultimately, support the diagnosis that the plaintiff was a suitable candidate for reassignment surgery. His death means that the other defendants will not be able to rely on his oral evidence to support their diagnoses as to the suitability of the plaintiff for gender reassignment surgery.

70 Mr Noonan also pointed out that the defendants will be at a disadvantage in meeting the allegation by the plaintiff that they did not properly investigate his family history, because the plaintiff's parents, and brother, are all now deceased. The plaintiff's mother and father both died in 1980, and his sole sibling, his brother, passed away in early 2000. The loss of the two parents, and indeed the brother, as potential witnesses in this case, could not be characterised, directly, as prejudice occasioned by the delay of the plaintiff in issuing proceedings in this case. However, Mr Noonan is correct in submitting that, given that the question of the alleged abuse of the plaintiff as a child will be a live issue in any trial of this proceeding, the defendants will not be in a position to meet the underlying allegation made by the plaintiff, namely, that he was subjected to abuse as a child. Of course, the issue which will be decided by the Court will be a different question, namely, whether the plaintiff was asked by the defendants about that abuse. Nevertheless, as that question will be a central issue in the trial, his parents and brother, if alive, may well have been relevant to give evidence to rebut the underlying allegation that any such abuse had taken place.

71 The position of Mr Isaacs, the fourth defendant, is somewhat different. Mr Isaacs is a plastic surgeon. The plaintiff was referred to him in order that Mr Isaacs might perform the gender reassignment surgery. In his affidavit, Mr Isaacs states that the referral took place in January 1994. In fact, the Monash Medical Centre file contains a letter dated 5 May 1995 from the Gender Dysphoria Clinic to Mr Isaacs, stating that the plaintiff is a male to female transsexual, and that the plaintiff had been approved for surgery "at the last meeting". The letter requested Mr Isaacs to assess the plaintiff for surgery.

72 In the amended statement of claim, the plaintiff does not allege that Mr Isaacs did not perform the operation competently. Nor does he make any allegation that, after the operation, Mr Isaacs did not provide appropriate after surgery care. The sole allegation, contained in the amended statement of claim against Mr Isaacs, is that he failed to conduct any, or any adequate, psychiatric assessment of the plaintiff, and that he relied on the diagnoses by the first, second and sixth defendants, in circumstances where he ought to have independently diagnosed the condition of the plaintiff, or ensured that the diagnoses of the first, second and sixth defendants had been appropriate.

73 In cross-examination by Dr Freckleton, the plaintiff described Mr Isaacs as a "pawn" of the psychiatrists. The plaintiff stated that he did not consider Mr Isaacs to be culpable in any respect. He did not expect Mr Isaacs to conduct an independent psychiatric assessment of him, because that was not his field of discipline. Thus, the plaintiff had not relied on Mr Isaacs to perform any such diagnosis. Indeed, during the time in which he was in Mr Isaacs' care, the plaintiff was still consulting the Gender Dysphoria Clinic for assessment by it. It is clear from the plaintiff's evidence before me that he, subjectively, has no grievance at all against Mr Isaacs. He did not send him a Christmas card of the type sent to Dr Kennedy and Dr Bower. He stated to me that Mr Isaacs was understanding and compassionate when he consulted him in November 2001.

74 The concessions by the plaintiff in cross-examination certainly render questionable the viability of his claim against Mr Isaacs. Mr Isaacs' primary defence will be that he was under no duty to form an independent psychiatric assessment of the plaintiff, in circumstances in which the plaintiff was already under the care of three qualified psychiatrists and a psychologist. The performance by Mr Isaacs of any such assessment would have been beyond his area of expertise. In that sense, the central issue between the plaintiff and Mr Isaacs is a discrete issue, which may not be affected by the type of prejudice to which I have already referred. However, as Dr Freckleton correctly pointed out, if the Court were to reject the primary defence of Mr Isaacs, that he was not under an obligation to conduct a psychiatric assessment of the plaintiff, then, the "second line" of defence of Mr Isaacs would require him to rely on the validity of the assessments made by Dr Kennedy, Dr Grant, Dr Bower and Dr Miach. In that way, the delay in the institution of these proceedings has prejudiced Mr Isaacs' defence to the plaintiff's claim.

75 In light of the matters which I have thus far discussed, I am satisfied that the delay by the plaintiff in the commencement, by him, of the current proceedings has resulted, and is likely to result, in prejudice to each of the defendants in the defence by them to the claims by the plaintiff in this proceeding. That prejudice may be fairly characterised as real and significant.[12] I am mindful that the question is not whether the defendants might have a perfect trial, but, rather, whether, notwithstanding that prejudice, they may be accorded a fair trial of the plaintiff's claim against them.[13] However, in my view, the prejudice suffered, and likely to be suffered, by the defendants in their defence of the proceeding is of such dimension that, in my view, there is a real possibility that they would not have a fair trial of the plaintiff's claim against them. In that way, in terms of s 27L(2) of the Act, I am satisfied that the passage of time has materially prejudiced the right of each defendant to a fair trial of the plaintiff's claim.

The nature and extent of the plaintiff's loss and the nature of the defendants' conduct

76 Mr Tobin acknowledged that the delay by the plaintiff would result in some general prejudice to the defendants, because of its potential effect on the memories of witnesses. He submitted that that prejudice is one factor which must be taken into account in the synthesis undertaken by me, in determining whether it is fair and reasonable that the plaintiff be granted an extension of time within which to have commenced these proceedings. However, he submitted that, in performing that synthesis, the nature and extent of the plaintiff's loss, and the nature of the defendants' conduct, are of central importance in a case such as this. He submitted that this is a case in which the plaintiff had been sexually mutilated for psychiatric reasons. He submitted that the conduct of the defendants in this case is somewhat unique, involving and directing what he described as the "severe mutilation of a person's body" by way of psychiatric treatment. Thus, Mr Tobin submitted that the factors, identified in s 27L(2)(b) and (c) of the Act, are of substantial significance in the determination of whether, in this case, it is just and reasonable that I grant the plaintiff an extension of time within which to have brought these proceedings.

77 In response, Mr Noonan submitted that in each case in which an application for extension of time is refused, the Court is faced with excluding a claim by a plaintiff who may have been grievously injured as a consequence of the alleged tortious actions of the defendant or defendants. He submitted, therefore, that the matters raised by Mr Tobin are insufficient to displace the other matters on which Mr Noonan relied, and in particular, the length of the delay, the lack of an adequate explanation for that delay, and the prejudice suffered, and likely to be suffered, by the defendants as a consequence of that delay.

78 Notwithstanding the submissions of Mr Noonan, s 27L(2)(b) and (c) expressly provide that the Court should take into account, in the exercise of its discretion, both the nature and extent of the plaintiff's loss, and the nature of the conduct alleged against the defendant. Section 23A of the Act, which is, in effect, the predecessor of s 23K and s 23L (except in respect of certain specified causes of action) does not contain a comparable provision to s 27L(2), although in exercising the discretion under s 23A, it has been held relevant to take into account the nature and extent of the detriment of the plaintiff should his application for an extension of time fail.[14] The plaintiff has clearly established that he is, and for some time has been, significantly aggrieved by the outcome of the operation performed on him on 4 November 1996. Self-evidently, that operation has had, and continues to have, a fundamental impact on basic features of the plaintiff's life. In terms of s 27L(2)(c), the surgery performed on the plaintiff was, of its nature, radical.

79 I agree with Mr Tobin that that surgery might fairly be characterised as particularly unusual, if not unique, as a remedy for a psychological or psychiatric condition. In an application of this type, it is not possible, nor, ordinarily, desirable, to express any view, no matter how tentative, as to the prospects of the cause of action relied on by the plaintiff. Thus, I do not consider that s 27L(2)(c) requires, or indeed justifies, me in expressing any such view in the unusual circumstances of this case. Rather, in my view, that sub-paragraph requires a characterisation by me of the type of conduct alleged by the plaintiff and in respect of which the plaintiff seeks relief. In this respect, this case is not concerned with the outcome of a common or orthodox surgical procedure in respect of an organic injury or defect. Rather, the claim made by the plaintiff focuses on the endorsement and recommendation by the first, second and sixth defendants of far reaching and radical surgery, based, not on a diagnosis of a physical or organic illness or defect, but, rather, on a diagnosis of a psychiatric condition suffered by the plaintiff. In that respect, I accept Mr Tobin's submission that the nature and extent of the loss, and the nature of the conduct alleged against the defendants, is a consideration of substantial weight and importance.

80 In those circumstances, I am required to exercise my discretion, balancing the competing considerations to which I have referred. Before doing so, I should first refer to the decision of the Court of Appeal in Walters and ors v Finch.[15] In that case Mr Alan Finch, with whom the plaintiff in this case made contact in 2004, issued proceedings in relation to the gender reassignment surgery conducted in respect of him, against the medical practitioners who were involved in that process. His application for an extension of time was upheld by a County Court judge. The Court of Appeal dismissed the application by the defendants for leave to appeal against that decision. In doing so, Ashley JA (with whom Maxwell P and Callaway JA) gave detailed consideration to the potential grounds of appeal sought to be relied on by the defendants. His Honour's judgment was commended to me by Mr Tobin in support of his client's application for an extension of time in this case.

81 It is, of course, trite that each application, of this nature, depends essentially on the particular facts of the case. There are a number of points of difference between the case of Finch and the present case. In particular, there are at least two substantial matters in respect of which Mr Finch's case may be distinguished from the application made by the plaintiff in the present case. First, in Finch, there was no indication that the histories taken by the defendant from the plaintiff, and noted in their records, were in dispute. Thus, the allegation by the plaintiff in that case, that the defendants failed to satisfy themselves that he fitted within the criteria justifying a gender reassignment operation, could be resolved by an examination of the recorded histories taken by the doctors.[16] Further, in Finch's case, and unlike in this case, the defendants were unable to identify any specific prejudice which they might sustain as a result of the death of Dr Bower. The defendants were only able to contend that they would suffer "general prejudice", because Dr Bower was not available to give viva voce evidence in support of their diagnoses.[17]

82 Thus, in the end, I am left to weigh in the balance, a number of significant but conflicting considerations. On the one hand, in favour of the plaintiff's application, is the nature and extent of the plaintiff's loss, and the nature of the conduct alleged against the defendants. As I stated, I regard those considerations as being of substantial force. In a case such as this, in my view, a court may well conclude that it would be just and reasonable to extend the period of limitation, unless there were weighty considerations to the contrary. In this respect, the nature of the plaintiff's loss, and the nature of the alleged conduct of the defendants, is such that, in the absence of countervailing considerations of substantial weight, justice and fairness would require that the plaintiff be entitled to have his claim, against the defendants, decided on its merits after a trial of the action.[18] However, in the present case, there are, in my view, such considerations of the type which I have already discussed. There was a very long period of delay between the accrual of the plaintiff's cause of action and the commencement of legal proceedings on his behalf. Further, as I have found, the plaintiff has failed to provide an adequate explanation for his delay in issuing proceedings. Thirdly, I am satisfied that if the case were to proceed to trial, the defendants have already been, and are likely to be, significantly prejudiced in their defence of the proceeding.

83 Ultimately, the synthesis of the competing considerations has caused me substantial difficulty, and has troubled me greatly. In the upshot, nevertheless, I have been driven to the conclusion that the plaintiff's application for an extension of time should be refused. The right of the defendants to a fair trial is a fundamental consideration in a case such as this.[19] If I acceded to the plaintiff's application for an extension of time, in all probability the trial of the proceeding would not take place for at least a further eighteen months.[20] In other words, the trial of the proceeding would take place more than eighteen years after the plaintiff first consulted Dr Kennedy, and fifteen years after he underwent the surgical procedure. The effluxion of such a passage of time would, inevitably, undermine the value of any evidence given by the defendants in answer to the plaintiff's claim. The prejudice sustained by the defendants would be exacerbated by the loss of Dr Bower as a witness, his unavailability to give evidence explaining the file notes on which the plaintiff bases his claim, the absence of Dr Miach's notes, and the agitation at trial of the issue whether the defendants had made proper enquiry of the plaintiff as to the events of his childhood and upbringing. In light of all those matters, I am not satisfied that if this case were to proceed to trial, the defendants would receive a fair trial. Indeed, I am persuaded that the defendants would not have a fair trial in all those circumstances.

84 As I have remarked, the period of delay in this case is particularly long. As McHugh J stated in Brisbane South Regional Health Authority v Taylor,[21] the legislative policy for the stipulation of limitation periods is based on a number of important considerations, including ensuring that defendants have a fair trial, preventing defendants being exposed to stale claims, and vindication of the public interest in ensuring that there be finality of litigation. In a case such as this, in which there has been long delay by the plaintiff and demonstrable prejudice to the defendants, it is incumbent on the plaintiff to prove, by appropriate and cogent evidence, a satisfactory explanation for failing to issue proceedings within the time prescribed by law. As I have found, the plaintiff has failed to satisfy me that there is any appropriate explanation for such a delay, particularly since 2004. While the question is not as clear cut for the period between approximately 2000 and 2004, nevertheless the plaintiff has failed to adduce evidence upon which I can be appropriately satisfied that he was so debilitated by his mental state, that he has a sufficient explanation for failing to seek legal advice during that period.

85 Bearing all those matters in mind, I have come to the conclusion that the plaintiff's application for extension of time should be refused. In reaching that conclusion, I have been mindful of the fact that the plaintiff does entertain a strong, and sincere, sense of grievance against his former medical practitioners. I am also conscious that, by declining his application, he is thus deprived of the opportunity to ventilate his concerns, and his grievances, in a court of law, and to obtain lawful redress for them. Nonetheless, and after giving this matter anxious consideration, I am satisfied that it would not be just and reasonable to uphold the plaintiff's application for an extension of time under s 27L of the Act.

86 Accordingly, I shall order that the plaintiff's summons dated 19 August 2008, applying for an extension of time of the period of limitation applicable to his cause of action, be dismissed. I shall hear counsel on the question of costs.

[1] Plaintiff's affidavit 3 November 2008 paragraph 13.

[2] Tsiadis v Patterson (2001) 1 VR 114, 123; [2001] VSCA 138, [33]; Millard v State of Victoria [2006] VSCA 29, [41] (Mandie AJA).

[3] [1996] HCA 25; (1996) 186 CLR 541, 552-3.

[4] (2001) 1 VR 114, 123.

[5] Koumorov v The State of Victoria [1991] VicRp 66; [1991] 2 VR 265, 272-3 (Brooking J).

[6] Ford Motor Co Australia Limited v Kulic [1988] VicRp 20; [1988] VR 152, 157 (Kaye J).

[7] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308, 312, 320-21; O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916, 929.

[8] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[9] Koumorou v The State of Victoria [1991] VicRp 66; [1991] 2 VR 265, 271 (Brooking J); Repco Corporations Ltd v Scardamaglia [1996] VicRp 1; [1996] 1 VR 1, 11 (Smith J), 15 (Phillips J); Lord v Australian Safeway Stores Pty Ltd [1995] VICSC 212; [1996] 1 VR 614, 616 (Phillips JA).

[10] See Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 5551 (McHugh J).

[12] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 544 (Dawson J), 550 (Gaudron and Gummow JJ), 555 (McHugh J).

[13] Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128, 142 (Priestley JA); Commonwealth of Australia v Smith [2005] NSWCA 478 [129] (Handley JA).

[14] See for example Bell v SPC Limited [1988] VicRp 16; [1988] VR 123, 125.

[15] [2005] VSCA 203.

[17] Ibid [67] to [73] (Ashley JA).

[18] Compare Williams v Minister, Aboriginal Land Rights Act 1983 and anor (1994) 35 NSWLR 497, 514-5 (Kirby P), 516 (Priestley JA); A v D (1995) 127 FLR 372, 378 (Miles CJ).

[19] Kone Elevators Pty Ltd v Popa and ors [2006] VSCA 26, [35] (Eames JA).

[20] Kone Elevators Pty Ltd v Popa (above) [37].