The email then set out various options, including another private legal practitioner, a Local Court Chamber Magistrate, the Legal Aid Commission of New South Wales, the New South Wales Law Society, the New South Wales Bar Association, a Community Legal Aid Centre, a Legal Information Access Centre and a Deputy Registrar of the Supreme Court.
47 I have already noted that the plaintiff's complaint to the Anti-Discrimination Board included allegations about matters occurring more than six months before the date on which the complaint was lodged and the plaintiff was asked to provide a further explanation of why she had not lodged her complaint within time. In a document dated 24 September 2002 the plaintiff supplied a detailed explanation, including the following:-
"I was abused by Miss Flynn 1998 'till point of TRAUMA. I've sent you documents of what the trauma is, how it affects victims and what the consequences are. If not treated immediately, professionally it leads to mental illness. It took me whole year until DVC English decided to investigate my behaviour and I was told "you are trauma victim". It took me another year to accept that the social workers denied abuse and instead of helping me I was abused further in an effort to make me leave. Finally - accepted the truth that there is no help whatsoever I took the matter to ADB ………… ."
48 In about March or April 2003 a legal practitioner, Mr Keeley, commenced acting for the plaintiff on her complaint to the Anti-Discrimination Board.
49 In about August 2003 the plaintiff's complaint was referred from the Anti-Discrimination Board to the Administrative Decisions Tribunal. On 29 August 2003 the plaintiff swore a long affidavit with many annexures, which was filed in the Administrative Decisions Tribunal. The affidavit was witnessed by Mr. Keeley and was obviously prepared with legal assistance.
50 In February 2004 a two day hearing of the plaintiff's case took place in the Administrative Decisions Tribunal. For at least part of the hearing the plaintiff was represented by Mr. Keeley.
51 On 21 September 2004, after reserving its decision for 7 months, the Administrative Decisions Tribunal handed down a decision, dismissing the plaintiff's complaints that she had been discriminated against by the University of Newcastle.
52 In the year 2002 the plaintiff's husband instituted divorce proceedings under the Family Law Act. In the proceedings the plaintiff's husband sought custody of the couple's younger daughter.
53 The plaintiff was legally represented in the Family Court proceedings by Mr. John McFadden. On 17 February 2003 the plaintiff made a long affidavit of 170 paragraphs in the Family Court proceedings.
54 On 11 March 2003 the plaintiff's general medical practitioner, Dr. Ferguson, made an affidavit in the Family Court proceedings. In his affidavit Dr. Ferguson said that he had treated the plaintiff from time to time since 1989. In paragraphs 6, 7 and 8 of his affidavit Dr. Ferguson said:-
"6. In my opinion, the respondent wife does not suffer from any mental illness or personality disorder. She has never described any psychotic episode to me and there has been no evidence exhibited to me that she suffers or has suffered any psychosis.
7. The respondent wife has suffered from a post traumatic stress disorder arising from an episode in her life when as a child she was sexually abused. She reported to me that when she told her father who the perpetrator was and the circumstances of the abuse, he did nothing about the allegations. She had described to me at various times how she has been depressed.
8. Her depression is consistent with the history she gave me. It is reasonable that she should suffer recurring symptoms from time to time but these symptoms are not such as would interfere with her ability to care for her children."
55 The only reference in Dr. Ferguson's affidavit to the plaintiff's dispute with the University of Newcastle is in paragraph 16 which stated:-
"16. I became aware in the course of treating the respondent wife that she was experiencing difficulties with Newcastle University staff and she reported to me that she was not receiving any emotional support from the applicant husband who was an employee of the University."
56 On 21 March 2003 Dr. Ferguson referred the plaintiff to a psychiatrist Dr. Bruce Chenoweth. Dr. Chenoweth saw the plaintiff on 24 March and 28 March and furnished a report to Mr McFadden dated 31 March 2003, in which he said:-
"I confirm that within the time that I saw Mrs. Simundic that she did not suffer from a mental illness nor a disorder, had not suffered from any form of "nervous breakdown", was not violent nor abusive in my knowing of her nor in the history that she relayed concerning her relationship with her husband and was not clinically disturbed in any meaningful way.
She was not diagnosable in psychiatric terms but wanted psychotherapy to assist her understanding of events and to continue a healing process, which she perceived began with her migration to Australia …………. ."
57 In a report of 20 August 2003 Dr. Chenoweth expressed the opinion that the plaintiff had suffered a post-traumatic stress disorder as a result of being "abused verbally and pressured ………… by her supervisor who controlled whether she passed or failed". Dr. Chenoweth considered that the plaintiff displayed a number of symptoms of post-traumatic stress disorder, including being agitated and emotionally labile when she described the events giving rise to the disorder.
58 The issue I have to determine is whether the plaintiff was, for some period at least between 26 August 1998 and 18 October 1994, substantially impeded in the management of her affairs in relation to the causes of action in negligence and breach of contract pleaded in the amended Statement of Claim, by reason of an impairment of her mental condition. It could not be suggested that during any part of that period the plaintiff was actually incapable of the management of her affairs in relation to those causes of action.
59 The plaintiff submitted that between 26 August 1998 and 18 October 2004 she suffered from a post-traumatic stress disorder, from which she continues to suffer, and by reason of her post-traumatic stress disorder she was substantially impeded in the management of her affairs in relation to the causes of action. In a document headed "Application for an Extension of Time", an annexure to her affidavit of 21 November 2005, the plaintiff asserted that because of her post-traumatic stress disorder she became unable to manage simple tasks and was in such a psychological state that she could not think clearly or take any effective action.
60 For the purposes of this application I am prepared to accept, on the basis of certain evidence of the plaintiff, Dr. Ferguson and Dr. Chenoweth, that the plaintiff may have suffered a post-traumatic stress disorder, caused, at least partly, by the conduct of members of the staff of the Department of Social Work at the University of Newcastle and that the symptoms of that disorder included symptoms described by Dr. Chenoweth in his report of 20 August 2003, including agitation, emotional lability, sleep disturbance, flash-backs and intrusive memories.
61 However, I am not persuaded that the plaintiff was for any part of the period between 26 August 1998 and 18 October 2004 substantially impeded in the relevant sense by reason of the post-traumatic stress disorder or any other mental condition to which she was subject or, alternatively, I consider that the plaintiff ceased to be so substantially impeded no later than some time in the year 2000.
62 In his affidavit of 11 March 2003 sworn in the Family Court proceedings Dr. Ferguson stated that, in his opinion, the plaintiff did not then suffer from any mental illness or personality disorder, that the plaintiff had not described any psychotic episode to Dr. Ferguson and that the plaintiff had not exhibited any evidence of psychosis.
63 In his report of 31 March 2003 to the plaintiff's solicitor in the Family Court proceedings Dr Chenoweth confirmed that the plaintiff did not suffer from any mental illness or disorder, had not suffered any form of nervous breakdown and was not clinically disturbed in any meaningful way.
64 It is apparent from a number of documents of which the plaintiff was the author that she had, from a quite early stage or at least from some time in the year 2000, a clear appreciation of what she asserts was the wrongful conduct towards her of members of the University staff and of what she asserts was the impact of that wrongful conduct on her. For example, she described in detail what she alleges had been Ms Flynn's conduct towards her in her email of 30 October 1998 to Ms Gaha.
65 By August 1999 the plaintiff knew that she had been diagnosed by the counsellor Ms Bryant as having a post-traumatic stress disorder and by that time, according to paragraph 2 of section 1 of her affidavit of 21 November 2005 she appreciated "the full impact of what Ms Flynn did to me".
66 In the year 2001 the plaintiff contacted many individuals or bodies, seeking assistance in pursuing or vindicating her claims against the University. These persons or bodies included the New South Wales Ombudsman, the Commonwealth Ombudsman, the New South Wales District Court, the Legal Services Commissioner, the Chairman of the Inquiry into Public Education in New South Wales, the New South Wales Law Society, the New South Wales Supreme Court and the Commonwealth Department of Education, Training and Youth Affairs. The plaintiff's conduct in contacting these individuals or bodies demonstrates that she then had a capacity to manage her affairs in relation to her claims against the University.
67 In particular, the plaintiff made the complaint to the Anti-Discrimination Board, dated 13 September 2000 and received by the Board on 7 November 2000. In her complaint she alleged that she had been discriminated against and abused by, among others, Ms Flynn and Ms Gaha, causing her trauma.
68 In the document dated 24 September 2002 the plaintiff offered an explanation of why she had not lodged her complaint within 6 months of the matters complained of occurring. The plaintiff asserted that a year had elapsed before the Deputy Vice-Chancellor of the University had acted and because of the trauma she had suffered it had taken the plaintiff another year to accept that the Department of Social Work staff denied having abused her and were abusing her further. The implication of what the plaintiff said in the document of 24 September 2002 is that, by the time the plaintiff lodged her complaint dated 13 September 2000, if not earlier, the plaintiff was cognisant of what she alleged had been misconduct by the University staff and of the effect of that misconduct on her and she was prepared and able to take steps to vindicate herself against the University and its staff.
69 The plaintiff instructed a lawyer to act for her in connection with her complaint of discrimination, she made an affidavit in the proceedings in the Administrative Decisions Tribunal and she attended at the hearing in the Administrative Decisions Tribunal.
70 In 2002 and 2003 the plaintiff contested the divorce proceedings brought against her by her husband, she instructed a legal practitioner to act for her in those proceedings and she made a long affidavit.
71 The plaintiff asserted at the hearing that she had deferred commencing proceedings in the Supreme Court, because she had been told (semble by a Court officer) that she should be patient and wait until her case in the Anti-Discrimination Board had finished, before she commenced proceedings in the Supreme Court. There is no documentary evidence to support this assertion. I have already referred to the email from the Policy and Research Officer of the Court of 8 November 2001, which merely informed the plaintiff that Court officers could not provide the plaintiff with legal advice and notified the plaintiff of possible sources of legal advice. In the circumstances, I am not prepared to accept that any such advice as is alleged, was given by any officer of the Court. In any event, even if such advice was given, it would not be relevant to the issue I have to decide, of whether the plaintiff was substantially impeded by reason of an impairment of her mental condition. That the plaintiff may have been deterred from commencing legal proceedings by a lack of money with which to pay lawyers, while regrettable, is also not relevant to the issue I have to decide.
72 I dismiss the plaintiff's Limitation Act application.
73 The plaintiff's jury application can be readily determined. I have dismissed the plaintiff's Limitation Act application, with the consequence that, at least as matters stand, the plaintiff's causes of action in negligence and breach of contract are statute-barred.
74 The plaintiff's cause of action in defamation is not statute-barred but, as the publication of the allegedly defamatory matter took place before the commencement of the Defamation Act 2005, the law of defamation to be applied is that contained in the Defamation Act 1974 (see Defamation Act 2005, Sch 4). Section 7A of the Defamation Act 1974 prescribes what functions are to be performed by the judge and what functions are to be performed by a jury in proceedings for defamation to which the 1974 Act applies and leaves no scope for an application of the kind brought by the plaintiff. I dismiss the plaintiff's application for a jury.
75 I dismiss both of the plaintiff's applications and make an order that the plaintiff pay the defendant's costs of both applications.
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