Smith v Jones

Relevant Rules and Legal Principles

1. Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 13.4 provides for dismissal of proceedings: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
2. Mr Jones argued that sub-rule 13.4(1)(c) applies because the proceedings are not maintainable because they are statute-barred and so are an abuse of process.
3. At the time Mr Jones' notice of motion was first listed for hearing on 23 February 2022, it was common ground that the initiating Statement of Claim was poorly pleaded and had to be repleaded. Mr Jones asserted that the subsequent amended pleading is still an abuse of process and should be struck out under r 14.28 both because it asserts an action that is not maintainable because it is statute-barred, and in respect of the allegations in 5(a) and 6(a), because they are too vague and imprecise. His primary position however is for summary dismissal of the whole proceeding.
4. The principles for summary dismissal are usefully and accurately summarised in the defendant's written submissions dated 11 July 2022 as follows: 1. In order summarily to dismiss the whole or any part of a proceeding a court must be satisfied that a claimant's cause of action is so clearly untenable as to be incapable of succeeding: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 (Barwick CJ). 2. The content of that test "has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way": Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] (Gaudron, McHugh, Gummow and Hayne JJ). 3. As such, the relevant inquiry is as to "whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated": Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102 ("Shaw") at [32] (Barrett JA; Beazley, McColl, Macfarlan JJA and McClellan CJ at CL agreeing). 4. In making that assessment the case of the party resisting the application must be "taken at its highest": Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [200] (Gleeson JA; Beazley P and Barrett JA agreeing). 5. The power should not be exercised "in a case where the issue primarily relates to a conflict as to matters of fact or of credit, notwithstanding that one may have a strong prima facie view as to the ultimate result": Preston v Star City Pty Ltd [1999] NSWSC 1273 at [35] (Wood CJ at CL).
5. Because Ms Smith's claim arises in part from acts she alleges occurred before October 2002, some of her cause(s) of action occurred prior to the commencement of the Civil Liability Act 2002 (NSW) on 6 December 2002.
6. The limitation period which applies to those pre-October 2002 parts of her claim is 3 years from the date on which the cause of action first accrued. Section 18A of the Limitation Act provides: 18A Personal injury (1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to - (a) a cause of action arising under the Compensation to Relatives Act 1897, or (b) a cause of action that accrued before 1 September 1990, or (c) a cause of action to which Division 6 applies. (2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.
7. The acts Ms Smith alleges took place after 6 December 2002 are also statute-barred by operation of ss 50C and 50D of the Limitation Act: 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire - (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. … 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts - (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. …
8. Ms Smith asserted that because she was under a disability (as defined) from 21 June 2009 to 19 June 2021, (the date her Statement of Claim was filed), the limitation period was suspended and so her claim was filed in time, or alternatively, as set out in the written submissions of her counsel in July 2022, she was under a relevant disability until June 2018 and so the claim was brought in time being within 3 years of that date.
9. Section 52 of the Limitation Act provides: 52 Disability (1) Subject to subsections (2) and (3) and subject to section 53, where - (a) a person has a cause of action, (b) the limitation period fixed by this Act for the cause of action has commenced to run, and (c) the person is under a disability, in that case - (d) the running of the limitation period is suspended for the duration of the disability, and (e) if, but for this paragraph, the limitation period would expire before the lapse of three years after - (i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or (ii) the date of the person's death, (whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates. (2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period. (3) …
10. Disability is relevantly defined in s 11(3)(i): 11 Definitions … (3) For the purposes of this Act a person is under a disability - (a) while the person is under the age of eighteen years, or (b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of - (i) any disease or any impairment of his or her physical or mental condition, …
11. Section 50F provides for the effect of disability on limitation periods relevant to post December 2002 events to similar effect as the combination of s 52 and s 11: 50F Effect of disability on limitation period (1) If a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability. (2) A person is under a disability while the person - (a) is a minor, but not while the minor has a capable parent or guardian, or (b) is an incapacitated person for a continuous period of 28 days or more, but not while the person is a protected person. (3) In determining when a cause of action is discoverable by a person who is a minor, or an incapacitated person, who is not under a disability, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the incapacitated person are taken to be facts that are known or ought to be known by the minor or incapacitated person. (4) In this section - … incapacitated person means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of - (a) any disease or any impairment of his or her physical or mental condition, or …
12. I agree with and adopt the analysis of Beech-Jones J (as he then was) in Ida Wolff bht Steven Binetter v Binetter [2021] NSWSC 1249 at [97] to [100] as to the focus and practical effect of these provisions and the judicial adumbrations of them: "[97] In Kotulski v Attard [1981] 1 NSWLR 115 at 117-18, Slattery J observed that a "mental condition" as used in this definition was "a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings" and "is meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment." His Honour observed that it is relevant "to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs" in that "a reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action." [98] Sub-section 11(3)(b) was addressed by Campbell JA, with whom Basten JA and Handley JA agreed, in Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [140] ("Guthrie") as follows: "In the context in which it occurs in section 11(3)(b), the relevant "affairs" are ones in relation to a particular cause of action. In a general sense, managing one's affairs in relation to a particular cause of action includes doing the various things that would need to be done if that cause of action were to be dealt with. Thus, it includes seeking advice about whether a civil remedy exists for some perceived wrong, seeking advice about the difficulties, risks, cost and effort involved in pursuing any such remedy and the likely returns, comprehending and evaluating that advice, and, if the decision to commence proceedings is taken, thereafter engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action." (emphasis added) [99] This passage highlights that the inquiry is litigation specific as subsection 11(3)(b) refers to the management of his or her affairs in relation to the cause of action in question. This serves to "divide off, from the whole ambit of the person's affairs, those that are affairs in relation to the cause of action" (Guthrie at [154] and [159]). Further the impairment must be substantial; "it needs to be an impediment that has interfered with the ability of the plaintiff to commence the action within time to an extent sufficient to warrant the suspension of the limitation period" (Guthrie at [152]). [100] The above extract from Guthrie identifies a number of aspects of the concept of managing one's affairs "in relation to the cause of action" the subject of the proceedings. However, an assessment of whether someone is substantially impeded in the management of those affairs is not answered by simply isolating each such component and asking whether the litigant could or could not undertake that step (State of New South Wales v Harlum [2007] NSWCA 120 at [92] to [93] per Beazley JA with whom Tobias JA agreed, at [100]). Instead, the relevant inquiry is whether overall the person claiming to be under the relevant disability is able to "reason normally" in the sense discussed in Kotulski (Harlum at [92] citing Kotulski at 118; see [97])). Further, the inquiry is not just limited to whether they can simply decide to instruct a lawyer and provide instructions, it extends to whether they have the "willpower to engage in all that is required to commence an action because of that person's mental condition" (Harlum at [95])."
13. In Guthrie v Spence (2009) 78 NSWLR 225 [2009] NSWCA 369 ("Guthrie") Campbell JA (with whom Basten JA and Handley JA agreed) held that the "cause of action" relevant to s 11(3)(b) is a particular right to sue that a particular person had and concerning which, the limitation period fixed by statute had commenced to run. The only "affairs" referred to in s 11(3)(b) are those practical matters that lead up to and end with the initiation of proceedings for the particular cause of action, such as seeking advice as to whether a civil remedy exists, evaluating the risks, costs and effort involved, and engaging in a continuing process of interaction with a lawyer if it is decided to commence proceedings: [140] per Campbell JA. The law is required to decide on the basis of all of the evidence, both lay and expert, whether the test for incapacity has been satisfied. That requires the Court to be satisfied that the person was "substantially impeded" by reason of a disease or impairment of his or her physical or mental condition.
14. Application of principle to Ms Smith's circumstances is where her circumstances part company significantly with those being analysed by the Court of Appeal in Guthrie. Campbell JA explained the particular facts and circumstances peculiar to Mr Spence and his avoidance behaviour: "[179] The judge accepted, as do I, the medical evidence that Mr Spence suffers from post traumatic stress disorder, that the assaults were the trauma that was, at the least, a significant precipitating cause of the condition, and that avoidance of any form of stimuli or life events which may remind him of the assaults is one of the characteristics of the disorder. The avoidance behaviour is not only a matter of conscious decision on his part. As well, Mr Flockhart reports that there is "unconscious defensive avoidance or dissociation". … [182] He was able to pursue litigation making a claim for damages for personal injury during the time that is relevant for his current claim of having been disabled (para [97] above). However, the very different subject matter of that litigation in my view makes it relevantly different to the present litigation. [183] In my view, the evidence establishes that he had an impairment of his mental condition consisting of the post traumatic stress disorder. That post traumatic stress disorder caused him to be less able to seek the advice that would be needed if he were to take civil action to recover damages concerning the assaults than a person who had been assaulted, but had not developed post traumatic stress disorder, would have been. It made him less able than such a person would have been to engage in the rational decision-making which is involved in deciding whether to sue, once advice has been received."
15. This Court must also be mindful of the matters raised by Campbell JA at [186] in Guthrie regarding "operative periods" of disability in circumstances of mental unwellness: "[186] Mr Windsor submits that Mr Spence has failed to lead evidence of the periods when the alleged disability was operative. That submission needs to be evaluated bearing in mind the peculiarities of the disability that is alleged in the present case. For many of the matters listed in sub paras (i)-(iv) of section 11(3), one would ordinarily expect plaintiffs to be able to give precise evidence about the times during which they suffered the condition that they allege substantially impeded them in the management of their affairs concerning the cause of action. If someone was disabled because they suffered a disease or serious physical illness, because they were in gaol, or were distracted from their ordinary affairs by being involved in a war, one would ordinarily expect the plaintiff to be able to say for how long that condition existed, and the manner in which it affected the plaintiff's ability to deal with his or her affairs concerning the cause of action. An impairment of mental condition does not work in quite the same way. Impairments of mental condition are frequently diagnosed after they have arisen, sometimes years after they have arisen. At least in some cases a mental impairment can affect a person's behaviour in ways that they do not attribute at the time, and sometimes do not even attribute subsequently, to that impairment of their mental condition."
16. I also note the reminder by Basten JA in Binetter v Binetter [2022] NSWCA 169 at [20] to ensure the Court does not (unintentionally) replace the statutory test: "[20] While the statement in Kotulski may be helpful in some cases, in State of New South Wales v Harlum, I expressed a note of caution in relation to its general application: "139 That passage was adopted by this Court in Olive v Johnstone. In some cases, that question may be of considerable assistance, particularly where, as in Olive, there was a lack of relevant medical evidence. However, it is important not to replace the statutory test with that which Slattery J identified as 'a relevant consideration'. For example, a person can act irrationally without having a disease or impairment of the mind, especially if acting irrationally extends to the results of confused thinking, conflicting emotions and other forms of behaviour in which an outsider's view of rational behaviour does not prevail. In particular, people often do not pursue legal claims and their reasons may be manifold, including doubt as to the likelihood of success, fear of lawyers' fees, fear that the benefit will not be worth the cost, including the emotional cost, of being involved in litigation, not wishing to sue a person one knows and many other similar reasons. Simply to ask, 'Did the plaintiff behave rationally in the circumstances?' may often obscure the inquiry prescribed by statute, rather than provide a clear answer."
17. Whilst Guthrie was about child sexual abuse, there are some broad parallels with the shame and distress that can be associated with allegations of physical and associated psychological abuse by a spouse. I have kept those parallels in mind. Further, the fact of a diagnosis of PTSD or major depressive disorder or alcohol use disorder does not on its own or even in combination establish disability as defined, or that by virtue of that diagnosis or diagnoses, a finding of "incapable" or "substantially impeded in" the management of his/her affairs in relation to the cause of action follows axiomatically. As Guthrie makes clear, analysis of the evidence is required.
18. As Guthrie also makes clear, it is all the evidence that must be considered, not just selective parts or highlighted assertions. In this case, that includes an evaluation of what Ms Smith asserted in her affidavit that she tendered as the basis upon which the Court should find disability, how those assertions measure up against other demonstrated facts and documents tendered by the defendant, most of which tend to show the truth is otherwise than as she asserted, and the extent to which any of these gaps could be explained by answers in cross-examination, many of which, I regret to say, were deflecting, unresponsive, defensive, or untruthful.

Evidence

1. The following background facts have been taken from the affidavits. Ms Smith's affidavit comprised a 56 paragraph subjective narrative with a single page psychiatrist's report dated 1 December 2016 and a 4 page report of a psychologist dated 1 November 2017 attached. The text of the affidavit is replete with self-diagnoses and unattributed and unsupported assertions by Ms Smith.
2. Also tendered was a short affidavit from a friend, Ms Willcox, which is of little relevance and no weight. There were also two medicolegal reports of a psychiatrist, Dr Siotia dated 21 September 2021 and March 2022. He was provided with Ms Smith's affidavit and "GP records of various dates", none of which were identified in the report, nor was their relevance or his reliance upon them referred to. He was also provided with a report of Dr Barnes, Psychiatrist of March 2017 and apparently interviewed Ms Smith on two occasions in September 2021.
3. Documents produced by the South Pacific Private Hospital in response to a subpoena issued by the defendant were also tendered. Those indicate, relevantly, a voluntary admission on 23 March 2017 for 21 days complaining of suicidal ideation, depression, anxiety, PTSD and alcohol abuse, as well as scattered out-patient notes and notes regarding an admission in October 2021 for treatment for alcohol abuse after Ms Smith was accused of assaulting her partner.
4. The defendant relied upon three affidavits of Mr Broom, solicitor, appending a significant amount of documentary material including many pages of correspondence by and about Ms Smith, as well as some orders made in the family law proceedings.
5. Ms Smith was cross-examined over 2 days on 30 March and on 8 June 2022. The lengthy cross-examination was unfortunately necessary due to evasive answers and the incomplete picture about relevant matters asserted by Ms Smith in her affidavit.
6. Ms Smith was taken to a number of significant letters and emails written by her in 2017 and early 2018 which demonstrate her detailed knowledge, understanding and decision-making in relation to her claim for assault and battery against Mr Jones. I have reproduced parts of this correspondence in full as it is the way it is written and the language used that evidences the depth of her knowledge and nuanced understanding which is in stark contrast to the ignorance and helplessness asserted in her October 2021 affidavit.

Factual Background

1. Ms Smith and Mr Jones are both 61 years old and are both lawyers. They met in Melbourne in 1985 and a short relationship ensued. They met again in 1993, moved in together in September 1993, and on 20 October 1994 they married.
2. Ms Smith alleged in her Amended Statement of Claim that between 1995 and 21 June 2009, Mr Jones was on occasion angry and violent towards her, causing her fear and apprehension: "5. During the course of her marriage to the defendant and up to and including the separation date the plaintiff was subjected to a number of acts of intimidation, threatening behaviour and outbursts of anger directed both towards her and the children. Each of these acts caused the plaintiff to be in fear of her safety such that she reasonably apprehended that she was in danger of receiving a battery. These acts included: (a) Regularly between 1995 and 21 June 2009 the defendant would have outbursts of anger during which he would shout at the plaintiff in an aggressive manner. The defendant was significantly taller and heavier than the plaintiff and the plaintiff was both intimidated and in fear for her safety. (b) In 1995, whilst pregnant with the plaintiff's first child, the defendant became angry to such an extent that the plaintiff was in immediate fear of her safety and as a result, left the house. (c) In either late 1995 or early 1996 the defendant became angry and forcefully pushed a glass sliding door, causing the glass to shatter. As a result the plaintiff felt intimidated and fearful of her safety. (d) In or around August 1998 whilst the plaintiff and their children were in the car, the defendant became angry and forcefully opened the car door, opened the boot of the car and threw items onto the ground. The defendant entered the car and continued shouting whilst driving. The plaintiff was in immediate fear of her safety and the safety of her children. As a result when the car came to a stop at a set of traffic lights. she exited the car and fled. (e) In late 2002 the defendant slapped [REDACTED] with such force that his nose began to bleed, causing the plaintiff distress and fear for the safety of herself and the children." [1]
3. Ms Smith also alleged specific acts of physical violence amounting to trespass to the person and battery took place between 1995 and 21 June 2009: "6. During the course of her marriage and prior to separation from the defendant, the plaintiff was subjected to intentional and unlawful acts of physical violence. Such acts included: (a) Between 1995 and 21 June 2009 the defendant would, on several occasions, grip the plaintiff's arms causing bruising. (b) In or around September 1998 the defendant grabbed the plaintiff by her shoulders and threw her across the kitchen causing the plaintiff to strike her head against the kitchen cupboards and the floor. (c) On 21 June 2009 the defendant picked up a photo frame grabbed the plaintiff's wrist and threw her to the ground causing her to strike her head on the floor. The defendant then pushed the photo frame against the plaintiff's throat as a result of which the plaintiff to believed that the defendant was going to kill her. The plaintiff lost consciousness and upon regaining consciousness the plaintiff rang the police." [2]
4. Ms Smith stated in her October 2021 affidavit that she "began seeing a psychologist" in 2008 to whom she was referred by her GP. She does not identify the psychologist. [3] There are no notes of these alleged consultations in evidence. She does not identify the GP. There are no records about that GP or the referral.
5. Clinical notes of a psychologist, Mr Vaughan, are in evidence via Mr Broom's affidavit. These notes commence on 4 June 2009 and discuss relationship dysfunction and her alcohol abuse. The notes refer to the 21 June 2009 event complained of in 6(c) of the Amended Statement of Claim. The notes cease 23 July 2009. [4]
6. On 21 June 2009 Mr Jones left the marital home and did not return. [5]
7. Between June 2009 and 2011 Ms Smith asserted in her affidavit that she "felt anxious, depressed", was unable to sleep and suffered weight loss and abused alcohol. [6]
8. Ms Smith asserted that her GP (not named) "prescribed medication" but does not state what the medication was or the name or address of the GP she consulted. [7] From the chronology in her affidavit this appears to be an assertion that this was in 2011, but is not clear.
9. I interpolate to observe that of concern is that there is not a single page of clinical notes or reports from any GP whom Ms Smith consulted at any time. This causes me some disquiet that Ms Smith has been selective as to what she has presented to the Court, and what she has chosen not to disclose. (A psychiatrist Dr Jordan is referred to as Ms Smith's treating psychiatrist for the 4 years preceding October 2021, but there is no record or report in evidence despite that 4 year period extending back to part of the period in which it is claimed Ms Smith was relevantly incapacitated).
10. On 30 June 2011 Ms Smith attended a single appointment with Dr Barnes, a Psychiatrist, who diagnosed a major depressive episode. [8] Rather than providing a report or note of that consultation, Ms Smith deposes to her own conclusions as to what that consultation involved and what diagnosis "should have been made".
11. In November 2011 Ms Smith was referred to Gail Purkis, a Psychologist. She saw her for three sessions "focusing on improving coping strategies regarding martial breakdown and associated stresses, regarding her children as a single parent, planning her future life regarding employment, financial stability and dealing with her husband's friends and family". [9]
12. Between 2012 and 2014 Ms Smith completed a Master of Laws from the College of Law and worked as a consultant/P.A. at a recruitment firm.
13. In October 2014 Mr Jones commenced family law proceedings which were served in late October 2014. Ms Smith says in her October 2021 affidavit that this caused her to have "flashbacks" to the alleged events on 21 June 2009.
14. In mid-October 2014 there was a further GP referral to Ms Purkis for opinion and management of adjustment disorder and anxiety related to marriage breakdown. [10]
15. In November 2014 Ms Smith's GP made a further referral to Dr Barnes whom it is said altered her diagnosis to PTSD.
16. In and from January 2015 Ms Smith attended thirteen sessions of counselling with Ms Purkis. [11]
17. On 19 February 2015 the divorce from Mr Jones was finalised by decree nisi. [12]
18. In July 2015 Ms Smith again saw Dr Barnes because of an increase in severity of depressive symptoms. Dr Barnes diagnosed a major depressive episode, but by October 2015 these symptoms had lessened and were described by Dr Barnes as "in remission", with a "significant reduction" in PTSD symptoms. [13]
19. In October 2015 Ms Smith commenced work with [REDACTED] where she continued to work until December 2016.
20. On 16 February 2016 Mr Jones commenced family law property proceedings ("the property proceedings") in the Federal Circuit Court of Australia. [14]
21. On 24 March 2017 Ms Smith was admitted to South Pacific Private Hospital for depression, anxiety, PTSD and alcohol misuse. She was discharged on 12 April 2017. [15]
22. On 28 June 2017 a highly sophisticated, well-researched and assiduously drafted ten-page letter prepared by Ms Smith was sent to Mr Jones' solicitor, Mr Broom in the property proceedings.
23. Part of the letter, titled "Offer to settle proceedings", included, amongst other matters, the following: "34. It is still very hard for me to address the incident which precipitated Stephen leaving the family home. It triggers a strong fear response in me even at this time of writing. At the time of this assault, I did not agree to press charges against Stephen, as I did not want our children to regard their father as a criminal, and it would have affected Stephen's earning capacity and professional standing. By doing so, however, I affected my own ability to claim victim's compensation. I am aware that I also have the option of bringing a civil claim. I have evidence in support of this claim and have a strong argument in respect of extending the limitation period. However, I hope that we will be able to resolve these matters promptly and directly and if so, I will agree to not proceed with any other claims against Stephen. (emphasis added)". And: "36. To summarise the salient aspects of my response to the property claim, I will ask the Court take into account: (a) - (g) …. (h) A Kennon-style percentage adjustment, at the most extreme end, for the difficulties I experienced in making contributions to the welfare of my family, during and after cohabitation as the result of family violence." And under the heading "Transfer to the Family Court" this comment: 1. "37. From the many anecdotes I have heard from and about other women, I know that my situation is not unique. It may benefit the public interest if the issues this matter raises are considered by the Family Court. 2. However, it would be in the interests of not only Stephen and me but also, most significantly, our children if we can resolve things as quickly as possible. 3. If we are unable to settle this matter now, I believe that the complexity of this matter and the legal issues to be considered, including the financial impact of violence warranting more than a Kennon-style percentage adjustment due to the quantifiable large sums of money lost, would merit a transfer to the Family Court based on the Court protocol of April 12, 2013."
24. In the conclusion to this letter Ms Smith made a specific settlement proposal, relevantly including the following: 1. "Settlement Proposal" 2. 45. Without prejudice, I offer to settle this matter on the following basis: (a) - (h) …. (i) I will execute a deed of agreement to relinquish my right to bring any action against Stephen for damages, including aggravated damages, in respect of the assault of 21 June 2009 and other family violence. 46. I ask you to note that, although I am a self-represented litigant, I have received telephone advice recommending forum transfer from a funded legal service. I have also researched and considered relevant case law, legislation and academic articles. I would greatly appreciate your equally considered response and ask for your reply within 14 days. If my offer is accepted, I waive my request for any further financial information in respect of Stephen's assets, earnings or expenditure. If my offer is rejected or if I do not hear from you within 14 days, I will proceed to seek orders: (a) For leave to make an urgent application for maintenance; (b) To compel Stephen to amend and update his financial disclosure; (c) To delay mediation of this matter until proper disclosure is made; (d) To transfer this matter to the Family Court; and (e) That Stephen pays me the amount of $50,000 as an advance for legal costs, which can be treated as an add-back when the matter is finally assessed. 47. Finally but not insignificantly, I would ask that Stephen continue the current financial arrangements that he has made with our children and that he does not mention any aspect of anything I have raised in this letter, nor discuss anything about me in an adverse manner with our children. Even though they are now young adults I am aware that having parents who are in dispute with each other is very upsetting for both of them. I can assure Stephen that I continue to support our children's relationship with him and his family. I look forward to a time when we can both say to our friends and family that we have resolved our issues in a fair and amicable manner." [16] (emphasis added).
25. On 25 August 2017 Ms Smith signed an employment agreement with [REDACTED] and commenced work with that firm on 4 September 2017. [17]
26. Also on 25 August 2017 Ms Smith engaged Watts McCray Lawyers to act for her in the property proceedings.
27. On 8 September 2017 Ms Smith swore and filed an affidavit in the property proceedings Court which included the following: "… Interim Costs On account of legal fees 6. I first consulted Watts McCray Lawyers on 25 August 2017. I strongly desire that Watts McCray Lawyers continue to represent me and feel that I would be very prejudiced in these proceedings should Watts McCray have to cease work due to lack of funds. … Spouse Maintenance 31. I seek to rely on my Financial Statement filed together with this Affidavit, which sets out my current income and personal expenditure. My personal expenditure currently exceeds my disposable income. 32. I am currently 56 years of age. Stephen is currently 56 years of age. 33. I was diagnosed with Post Traumatic Stress Disorder ('PTSD') in 2015 as a result of the physical, verbal and psychological abuse perpetrated by Stephen against me during the marriage and following separation. 34. I currently suffer from depression and severe anxiety. 35. My current treating psychiatrist is Dr Caryl Barnes ('Dr Barnes') in Lindfield. 36. I continue to receive the following treatment for my health conditions: (a) I see a physiotherapist for treatment for arthritic conditions in knees, aggravation of hip and spinal conditions; (b) I undergo psychotherapy for anxiety, depression and PTSD; and (c) As deposed to above, I see a psychiatrist for ongoing management of anxiety, depression and PTSD. 37. To the best of my knowledge and belief, Stephen is in good health. 38. From August 2015 to December 2016, I was employed as a Claims Consultant with [REDACTED], earning $90,000 per annum. My employment was terminated on 13 December 2016. 39. Since that time, I applied for jobs and also focused on improving my health. 40. I commenced employment with [REDACTED] as a Liability Claims Officer on 4 September 2017. My remuneration package is $90,000 per annum plus statutory superannuation. Annexed hereto and marked "F" is a true copy of my Employment Contract dated 25 August 2017. I understand that the probationary period is 6 months. 41. My take home annual net salary after tax will be approximately $67,268. My net weekly salary will be approximately $1,294. Annexed hereto and marked "G" is a copy of a tax calculation obtained from the "iCalculator" website on 8 September 2017. 42. In or around August 2017 I informed my psychiatrist, Dr Barnes, of my intention to return to employment. She said to me "Are you sure you are ready to go back to work?". 43. I am unsure as to whether I will be able to cope with full-time employment on a long-term basis. In the event that I am unable to continue employment then I will expect to receive approximately $272.20 per week in government benefits." [18]
28. Ms Smith made other specific reference in that September 2017 affidavit to the allegations that form the basis of her claim for damages in this Court: "51. Stephen and I were married for a period of 16 years. There were numerous events of family violence inflicted by Stephen towards me throughout the marriage. Many of these events caused me trauma and I find it upsetting to recall these events. I do not intend to set the events out in detail at this time however will do so prior to the Final Hearing of the matter. 52. The family violence inflicted upon me led to my current health issues and in turn, I believe, further reduced my prospects to obtain well-remunerated employment in the long-term." [19]
29. On 11 September 2017 orders were made in the property proceedings which included Mr Jones paying $40,000 to Ms Smith's solicitors to fund her legal costs, as she had deposed in her affidavit of 8 September 2017 to being unable to pay her lawyers to progress the property proceedings and related sale of the matrimonial home. [20]
30. Senior Counsel for Mr Jones, Mr Campbell SC, submitted that the evidence tendered demonstrated that Ms Smith then embarked on a deliberate course of conduct to try and manipulate the property dispute between herself and Mr Jones by hanging over his head the threat that she would sue him for assault if he did not settle the property proceedings in a way that was advantageous to her. The course of conduct comprised detailed exploration of the prospect of using her potential personal injury claim for leverage in the property proceedings and focused agitation via correspondence to pursue that outcome, using the costs funding she had obtained from Mr Jones.
31. I have concluded that the correspondence between Ms Smith and her legal advisors, and between herself (and when retained, her lawyers) and Mr Jones' solicitor certainly supports that submission. Ms Smith also seemed to have had no qualms at all, despite her assertions to the contrary, sharing in specific detail, her allegations of physical (and psychological) abuse by Mr Jones and its effects upon her.
32. On 3 October 2017 at 10:12pm Ms Smith sent an email to Rishika Pai, a solicitor at Watts McCray Lawyers: [21] "Dear Rishika I am so sorry. I missed this email as I don't check my personal emails during the day. I will try to get as much done as possible over the next couple of evenings. In the interim, I am attaching a copy of the 000 recording and the police report. Please note that the report does not accurately describe the incident, as I had decided that I did not want to press charges and Stephen's version only was recorded. However, as described it simply doesn't make sense in terms of the layout of our house, which I can explain in my evidence. In terms of medical reports, I would rely on the report of my psychiatrist Caryl Barnes. I was also treated for PTSD by psychologist Gail Purkis."
33. It is common ground that the reference to the "000 recording" is the call Ms Smith made on the day of the alleged physical assault on 21 June 2009. (The content of that call is not in evidence).
34. On 4 October 2017 at 11:35am Ms Pai sent a reply: "Hi Helen, Thank you for your email. Do the best you can for Friday - worst case we will still send the Brief out on Friday, and send your statement on Monday next week so you have the weekend. Keep me posted on how you are tracking." [22]
35. On 6 October 2017 Ms Pai sent a Brief to Advise to Brian Knox SC, which included the following: "Advice Counsel is briefed to advise our client on her financial remedies for the family/domestic violence suffered by her during the marriage, as perpetrated by the Husband. In particular, our client seeks advice as to the prospects of: 1. Recovering damages for the family violence; and 2. Successfully arguing the case of Kennon v Kennon (1997), in the event the matter in the Federal Circuit Court proceeds to Final Hearing. As Counsel will read in the documents, the Husband was extremely violent towards the Wife during the marriage. In particular, a violent episode occurred in June 2009, at the time of separation, when the Husband attempted to strangle our client. This led to our client ultimately being diagnosed with Post Traumatic Stress Disorder ('PTSD') in 2015. We understand that the violent episode that occurred in 2009 was the most recent incident of violence and given that eight (8) years have elapsed obviously our client will need to be advised as to any limitation period which bars her from now bringing a claim for damages. Counsel will find in the Brief, a letter from Dr. Caryl Barnes, our client's current treating Psychologist, dated 2 March 2017, setting out our client's history, diagnosis and treatment. The anxiety and depression encountered by our client, lead her to cease working in December 2016. She has only returned to work as recently as September 2017. Our client is also currently being treated for PTSD by her Clinical Psychologist, Ms. Gail Purkis. Both Dr. Barnes and Ms. Purkis are able to provide updated Reports in relation to our client's diagnosis and treatment, should it be required. We are also able to obtain a Report from Dr. Carol Elion, our client's current treating General Practitioner. Our client has forwarded to our office, audio recordings of two (2) 000 calls made by our client to the Police in 2009, which can be forwarded to Counsel. We also enclose in Counsel's Brief a copy of a Police Report dated 21 June 2009. Our client has instructed that the Report does not accurately describe the incident, as she had decided at that time she did not want to press charges against the Husband. Accordingly, only the Husband's version was recorded by the Police. However, we are instructed that the events as recounted in the Report do not make sense in terms of the layout of the parties' home, which our client has confirmed she can explain in her evidence. We have requested that our client prepare a detailed Statement, which includes a list and description of each of the violent incidents that occurred, including what the specific acts were, when they occurred, the context leading up to the acts, any evidence of the acts, any observations of third parties, any medical records, any post-incident Reports, details of the injuries and side effects sustained by our client, the impact of the injuries on her contributions and how her future employment prospects have been affected. We anticipate we will be in a position to forward this statement to Counsel on Monday 9 or Tuesday 10 October, next week. We note that we have provided our client with a copy of Counsel's paper presented at the National Family Law Conference in Melbourne on 21 October 2016, "Revisiting Kennon: financial remedies for family violence." We understand that our client will have read that paper prior to the conference with you. We note that a Conference is scheduled to take place between Counsel, Mr. Barry Frakes and our client at 2:30pm on Thursday, 12 October 2017, at Counsel's Chambers, Should Counsel require anything further prior to that conference, please do not hesitate to contact our office. Dated: 6 October 2017" [23]
36. At some time between 6 and 12 October 2017 a six-page document authored by Ms Smith titled "Background for Paul Creed" was either created or having already been prepared prior, was sent to Mr Knox SC and her solicitors. [24]
37. On 12 October 2017 at 9:47am Ms Pai emailed Mr Knox, attaching a document referred to in the subject line as "Helen Smith 12 October 2017.docx". [25] This document, headed "Summary of Abuse", included the following: "The abuse perpetrated by Stephen took a variety of forms, such as geographical (removal interstate from my family and business and social network), financial, verbal intimidation, frightening temper tantrums and yelling, breaking things, constant lying including about extra-marital affairs and STDs, dangerous driving, pushing, hitting and, eventually, strangling. Until that time, I tried to be empathic and believed I was strong enough to endure Stephen's behaviour and help him reduce his "stress", both because I believed I loved and admired him, but more importantly so that my children would not have to grow up in a 'broken' home. …. Physical abuse The first occasion of serious physical abuse occurred one evening around August 1998. We were living in a 2-storey townhouse in [REDACTED]. I had just finished breastfeeding our then 3-month old daughter [REDACTED] & walked into the kitchen, saying to Stephen, "I'm starving". He became very angry and said to me, "Are you saying that I don't do anything for you, that, I'm not looking after you properly?" Right after this he grabbed my shoulders with both hands and threw me across the room. I hit my head on the tiled floor. Stephen had been verbally abusive and intimidating in a series of events leading up to this evening and on those occasions and I had removed myself from his presence. However, because of the danger he'd placed me in, I was shocked because I had two small children to care for, both asleep upstairs, and I couldn't run away while Stephen was in an enraged state I got up, grabbed his face with my hand and scratched his face. I thought to myself, "he'll have something to think about when he looks in the mirror". My reaction seemed to settle him down for several months. I have already provided information about the second serious occasion of physical abuse, when I called the police. Reflecting on the time that Stephen strangled me, I had believed it was with his bare hands. My friend Cathy, whom I called after the event, has told me that I said he had held a picture frame to my throat and this is probably the case. I have little memory of the actual strangulation but just remember being unable to breath, coughing and feeling tight in my throat for several days after the event and at the time thinking, "This is it - Stephen is finally going to kill me". After the event I had a sore head from hitting my head on the floor and a sore wrist from being grabbed."
38. On 12 October 2017 Mr Knox emailed Ms Pai. The subject line read 'Re: Smith': "Dear Rishika, Thank you for that additional statement by Ms Smith dated 12 October 2017. I will need to amend paras 11-13 of the draft advice to make reference to the additional material along the lines of: 14. In a supplementary statement of 12 October 2017, Ms Smith has made a number of allegations of various forms of family abuse with a great deal more specificity. … 17. These matters were not included in my earlier affidavit because We will need to have these matters amplified in conference with Ms Smith this afternoon. With thanks," [26]
39. On 12 October 2017 a conference took place. It was attended by Mr Knox, Ms Smith and possibly Mr Franks, a solicitor. [27]
40. Handwritten notes of matters discussed at the conference with Mr Knox are in evidence. They contain, amongst other things: * "Move to Fam Crt - > practical but adds to delay. … * Damages - > out of time. … * If go in DC - > at best as 50/50 whether ext. granted. Not optimistic. … * Summons for ext. of time - > Affidavit prepare draft." [28]
41. A document titled "Summary of advices given by Brian Knox SC to client on 12 October 2017" was prepared, (although it is not clear by whom). It comprised the following: "Summary of advices given by Brian Knox SC to client on 12 October 2017 In relation to a Civil court claim, the expiry of the limitation period is a problem. How to overcome this is as set out in Mr Knox's advices. That is, as follows:- 1. Prepare evidence in support of a District Court claim. This will require an Extension of Time Application and a supporting Affidavit. We would need to show: A prima facie case; Reason for the delay (Ms Smith's medical issues etc.); and Absence of prejudice to the husband. 2. Prepare the above and leave in draft. Give the draft to the other side saying this is what we are prepared to file if the matter is not resolved. The letter could potentially state that this would avoid any "unnecessary professional embarrassment to your client." We might also outline what subpoenas would be issued should the matter not resolve. These documents should be prepared and ready to go. If we proceed to the District Court then Mr Knox advised that our client would at least have a 50/50 chance to have an extension granted. Mr Knox is not overly optimistic. 3. Mediation should be attempted. Mr Knox proposed the following mediators and weighed up the advantages and disadvantages of each: [The names of four barristers] 4. At Mediation we should annex Affidavits as follows:- Report of Dr Caryl Barnes, as Ms Smith reported consistently to Dr Barnes; and Report of Gail Purkiss, who treated Ms Smith for PTSD. In relation to the above reports, a Letter of Authority should come from the solicitors setting out headings i.e. each incident of violence and the specific thing set out in Mr Knox's advice, including the impact on Ms Smith's earning capacity and lifestyle etc. 5. It was also advised that a new Affidavit should be drafted; working off the Affidavit previously drafted KD Holmes. It was also discussed as to whether all of the violent incidents should be set out in a "without prejudice" mediation paper. 6. If Mediation fails, we should apply to have the matter transferred to the Family Court. We should check the protocol and the bases to apply should be the following: The matter is complex; and There are potentially matters of accrued jurisdiction. Ms Smith should balance up the cost in delays in having the matter transferred. She could be looking at a delay of 6-9 months and potential costs of approximately $50,000, as it would require an Application to transfer, and Affidavit material supporting that Application. It was ultimately advised that running the Kennon case at trial would award Ms Smith no more than 5%, and that this would be less than what the District Court would award. However, we noted the hurdles in making a claim with the District Court at this time." [29]
42. On 18 October 2017 an advice of Mr Knox was prepared, directed to Ms Smith. [30] In cross-examination, Ms Smith was evasive as to whether she had been provided with a copy of it and/or had read it at or around that time, although an email by Ms Pai to Ms Smith dated 18 October 2017 enclosed the draft Advice. [31]
43. The Advice was very thorough and reveals the nature and extent of the detailed instructions Ms Smith provided which included specific detail of the allegations of violence by Mr Jones and their effect upon her, as well as appropriate, detailed, and very clear advice as to her Limitation Act problems and the urgency of that situation. A lengthy extract of the relevant parts of the Advice are contained in the appendix to this judgment.
44. On 20 December 2017 at 7:10pm Ms Smith emailed Anne Healey, barrister: "Hi Anne In my frantic state of doing my own work as well as that of a colleague who is on leave for the week, I had misunderstood that you needed my chronology prior to our talking again today. Dr Barnes' report is very useful for this purpose and I also attach a copy of her report. I have put together a very rough list of incidents/facts for the purpose of considering an extension of the limitation period. Given that the circumstances concern family violence, which took place over the 15 years of our marriage, the financial violence (left with $1.2M in debt to repay on my own) which continued subsequent to our separation and the manner in which the family law proceedings have been handled by Stephen and his lawyers, it has been extraordinarily difficult for me to be in any sort of position to even consider bringing legal action until now. The 2 other big factors that held me back from even raising this situation are - the potential impact on my children, an - intense shame at my predicament. Hopefully this is enough for an initial consideration. Of course, I am happy to pay fees as they are incurred. Thanks so much for speaking with me about initiating this action. In these circumstances, it's a relief to hear the sympathetic voice of someone I trust. Kind regards…" [32]
45. Apart from again evidencing a nuanced understanding of the elements of her cause of action, this is a rather manipulative email which misrepresents the situation given that Ms Smith had not been "held back" from deploying the "family violence" allegations, and in fact had put them into play in the property proceedings over at least the preceding six months.
46. On 21 December 2017 at 4:49pm Ms Smith emailed Ms Pai an email titled 'Civil action': "Hi Rishika I have been in contact with barrister Anne Healey and with lawyers Maurice Blackburn regarding my civil action. I will keep you advised of progress with drafting the statement of claim for delivery in draft form to Wyatts. When will you be on leave over this coming period?" [33]
47. On 22 December 2017 at 8:57am Ms Smith sent to Ms Pai an email titled 'Re: Civil action': "Hi Rishika Would you kindly forward me a copy of Brian Knox's advice, so that I can provide it to Maurice Blackburn? Secondly, if they recommend that I file the Statement of Claim, rather than serve it in draft form, would this present major problems? I can always discontinue later." [34]
48. On 22 December 2017 at 9:04am Ms Pai replied: "Hi Helen, See attached. I would need to speak to Brian Knox in order to answer your question. If they MD recommend you file the SoC, please let me know." [35]
49. On 27 February 2018 at 9:18am Ms Smith emailed Ms Nyree Deirmendjian from Tebbutt Lawyers: "Hi Nyree, I'm writing from my work email, so will only refer in general terms to the matter I discussed briefly with Michael yesterday. The barrister I had previously spoken to is running criminal jury trials out of Sydney for the next 5 weeks, but I note that Ms Kavita Balendra was junior counsel in Guthrie v Spence, where the extension of the limitation period was upheld on the basis of Spence being under a disability. She would be my choice of counsel for this action (subject to her availability). My number is …. … … and I hope to hear from you when you're free. I have a number of documents that I can send you." [36]
50. On 27 February 2018 Ms Smith emailed Ms Deirmendjian at 11:13am: "Hi Nyree, I am seeking to bring a possibly out-of-time civil action for assault. My circumstances, I am confident, bring me within the provisions of s50F of the Limitation Act. I have a significant economic loss claim and medical expenses. This is a matter which will settle. Would you be in a position to brief counsel and act for me, subject to considering my evidentiary material? Michael "dobbed you in" as having done some civil work." [37]
51. On 27 February 2018 at 4:05pm Ms Smith sent another email to Ms Deirmendjian: "Thanks so much Nyree. I will send the documents for your review on Thursday…" [38]
52. On 1 March 2018 at 3:38pm Ms Smith emailed Ms Deirmendjian: "Hi Nyree I'm pretty flat-out today and apologise for sending these to you without a covering explanation. These docs were put together for Paul Creed of Brydens (recommended by my barrister friend Anne Healy), who reviewed them and then interviewed me at length, agreeing that s50F could be enlivened to extend the limitation period. A few weeks later another lawyer from Brydens reverted to me, simply saying that the 3-year period had expired and they were not willing to act. I know a bit about their modus operandi, and have never seen them keen to settle before they've had the chance to run up significant costs - this matter doesn't fit into their business strategy, I assume. Guthrie v Spence raises principles that are pertinent to my situation and I look forward to discussing the parallels between the circumstances faced by the plaintiff in that matter and my own. I will be in the city tomorrow morning (Fri) for an work-related application in the 10am list. Perhaps we could meet after that if this would suit you? Otherwise, I could come in next week. I hope this will be enough to allow you to five this a preliminary consideration." [39]
53. On 1 March 2018 at 4:14pm Ms Smith emailed Ms Deirmendjian: "Hi Nyree, Anne was free at the start of the year, but will now be tied up for the next 5 weeks in criminal trials out of the Sydney. The other barrister Ms Balendra was junior counsel in Guthrie v Spence and my research assures me that she would be more than capable of dealing with this. Her clerk said she had capacity to take this on. [hyperlink to Ms Balendra's web page] I have to leave early, so if you have any further emails to send me, please only use my personal email address as is cc above." [40]
54. On 6 March 2018 at 10:06am Ms Smith sent an email to Ms Deirmendjian titled 'Can we speak today?': "Hi Nyree, I hope that I didn't overwhelm you with the volume of documents. Essentially, the basis of the claim will be * The plaintiff was seriously assaulted by the defendant on 21 June 2009 * The plaintiff developed the conditions of depression, anxiety, dissociative disorders, stress-related autoimmune disorders and PTSD which * Required her to undertake medical treatment by psychologists, psychiatrists, psychotherapists, endocrinologist, general practitioners, in-patient hospital treatment * Prevented her from undertaking her pre-injury activities and greatly impacted on her ability to work and manage her financial and legal affairs * Compromised her ability to effectively parent her children, run the household and undertake voluntary work in the community * Significantly rendered her incapable of, or substantially impeded in, the management her affairs in relation to the cause of action - s50F (disassociation / fear responses triggered by contemplating taking the action - extreme stress response at re-living event by contemplating it / fear of consequences including loss of reputation by being seen as a "battered wife" and defendant's possible loss of job then inability to provide for children / fear of psychological impact on children, including berating of mother). Please let me know when we can talk…" [41]
55. On 6 March 2018 at 10:24am Ms Deirmendjian replied: "Dear Helen, I was out of the office yesterday and playing catch up today. I may not get to call you but these are my initial comments/queries. I did get to briefly read over the documents on Friday. I note that you have a matter presently in the Family Court and evidence has been filed by your treating psychiatrist. What does your family lawyer say about instituting a civil claim? I would have thought that the family violence during the marriage and its ongoing effects on you and impacts on your ability to parent/work should be played out in that forum and be part of your argument for a larger share of the property settlement…" [42]
56. On 6 March 2018 at 10:37am Ms Smith replied: "Hi Nyree, I had a conference with Brian Knox SC to discuss this. The partner I have instructed for the FLA proceedings acted for the wife in Kennon. They are both of the opinion that the operation of the Act cannot provide adequate compensation in these situations as the adjustment is made as a percentage of the pool and is typically limited to around 5-10%. Watts McCray cannot act in civil claims however - they ONLY do Family Law. Knox's recommendation was to proceed with the civil action separately, but prior to filing, send the defendant a draft copy and ask whether they would enter into settlement discussion prior to filing. Further, he recommended that the s 50F(sic) application to have the limitation period suspended for the duration of the disability (until at the earliest April 2017) should be included in the statement of claim so that the issues can be tried together - but I'm completely inexperienced with the intricacies of civil procedure, so I'm not sure whether I've expressed this properly. I'm sure I saw some bar procedure notes however, that also recommended this approach…" [43] (emphasis added)
57. On 7 March 2018 at 12:26pm Ms Smith sent an email to Ms Deirmendjian titled "I really need to speak to you!": "Hi Nyree, I have a window of availability today and am feeling quite anxious about any further delays in commencing the civil action as it's a critical piece in the puzzle of a satisfactory resolution of my family court proceedings. I was given the run-around by the 'plaintiff firms' that I approached, which either were negligent in their interpretation of the applicable law or, more likely, base their business model on maximising their costs by playing the court system. As a defence in-house lawyer, I should have realised that my prospects of early settlement would not be attractive to them. However, if you are unable to take on my matter at the moment, please let me know immediately so that I can source another firm to assist me." [44] (emphasis added)
58. On 12 March 2018 a 'Brief to Advise' was forwarded to Ms Balendra of counsel which includes these observations: "She has received and continues to receive treatment from a psychologist and psychiatrist. She has been advised (by the writer and we believe also by Watts McCray her family law solicitors) that she is entitled to include the effect of the family violence in consideration of the percentage of property adjustment. Ms Smith wishes to commence civil proceedings against the defendant for damages and Counsel is briefed to advise on that including the limitation period and prospects of success. Ms Smith is a solicitor for an insurance company and is aware of section 50F of the Limitation Act and obtained Counsel's name from the matter of Guthrie & Spence [2009] NSWCA 369."
59. On 13 March 2018 Ms Deirmendjian forwarded a letter to Ms Smith enclosing costs disclosures and confirmation that a brief had been sent to Ms Balendra, a conference was organised for 4 April 2018.
60. Despite this series of intelligent, persistent, well-informed letters set out in pars 52 to 89 of this judgment, in her October 2021 affidavit Ms Smith presented the period late April 2017 to the time she saw Ms Balendra in April 2018 as follows: "46. Following my inpatient stay I felt stronger mentally. I felt like I was no longer afraid of the Defendant and better able to cope. I began to think that I should bring civil proceedings as I began to realise the extent of the loss I had suffered as a result of the domestic violence. 47. I rang solicitors to ask whether they would be able to take on a civil case on my behalf. In 2018 I was finally able to obtain the services of Ms Nyree Deirmendjian and I spoke to a barrister. I was informed that there were issues about the limitation period for bringing a claim. The barrister told me that I would need to "write down my life story". 48. I tried to write down what had happened to me like my barrister had asked me to. I could not. Every time I thought about what had occurred during the marriage or the events of 21 September 2009 I would burst into tears. I avoided thinking about it as much as I could. 49. I wanted to pursue my claim. However, I found that I was unable to give my solicitors instructions or deal with compiling the evidence that was asked of me."
61. A Memorandum of Advice was prepared by Ms Balendra dated 9 April 2018 to which included the following: [45] "… Next Steps As discussed in conference a number of things need to occur. Firstly, there must be some attempt to obtain all the medical records and clinical notes of Ms Smith's treating doctors this will give us a better idea of the time chronology of events leading up to yesterday's conference. Furthermore a detailed statement will need to be obtained from Ms Smith. As discussed with her this requires her to have some psychiatric or psychological assistance in place prior to the making of such statement, as it is my experience that providing statements in the detail that is required can increase the severity of symptoms. Such a statement needs to be obtained sooner rather than later as the longer we wait the more open Ms Smith is to criticism for allowing time to pass." [46]
62. On 27 April 2018 Watts McCray ceased to act for Ms Smith in the property proceedings. [47]
63. On 21 May 2018 Ms Deirmendjian sent a letter to Ms Smith enclosing five medical authorities for Ms Smith to sign so that they could obtain records from Ms Smith's treating doctors. [48] There is no evidence that she ever signed and/or returned the authorities.
64. On 12 June 2018 Ms Smith, writing for herself again, forwarded another very detailed letter in the property proceedings indicating an ongoing intent to continue to use the assault allegations as a threat, including these assertions: "… 2.5 I cannot give you a firm date as to when the house will be ready for sale. I would like to aim for a date in 2018, depending on my personal capabilities, in terms of time, work pressures and physical and mental health, in order to perform the many tasks that I need to carry out myself prior to tradespeople carrying out their jobs. However, I have been in my job for less than a year, and cannot take adequate time off in order to perform the required tasks. There is much more to be done than was quoted for, such as repairing broken blinds and cleaning out the pool which has transformed into a frog pond full of vegetative debris. 2.6 Note that I do not wish to continue the burden of maintaining this large property. I note that, once again, the heavy lifting of domestic responsibilities has been left by Stephen to me to manage. It would be wonderful if I could be in Stephen's position to walk away from the responsibility and then send long-distance directions as to what was to be done, while being able to focus on my own professional career development and enjoy travelling with my children. (I have never been able to take my children to meet family members overseas.) Please try to imagine the additional impact that this grossly unjust situation is having on the impact of trauma on me. 2.7 To compound this impact, the directions regarding the sale of the property give me the feeling of being micro-managed and scrutinised, rather than assisted. I would again remind you that I had been ready, willing and able to sell the property in 2014 and had undertaken substantial preparation for this, until without the courtesy of prior communication of intent, you issued a caveat on the property. Since I was - and am still - trying to recover from the effects of being subjected to family violence, I experienced the unanticipated service of the caveat as another traumatic blow and I lost my ability to move forward. 2.8 As my solicitors previously advised you, I am now impeded from preparing my house for sale as: 2.8.1 The house and garden are very large and require significant ongoing work to be undertaken by me, requiring many hours of my time, over and above the works quoted for. The scope of my job has increased since I started it last September and I am simply too tired when I return in the evening to attend to this work, over and above general maintenance and gardening duties; 2.8.2 My health continues to be affected by the impact of trauma experienced by me, which affects my work on the house, which carries memories of the violence. …. 3.3 Finally, I would note that society is rapidly reviewing its attitude to violence, particularly against women, and I would argue that it is timely that the Family Court becomes active in supporting this attitudinal shift. I do not believe that the Court is powerless to apply the provisions of section 75(2)(o) to property proceedings and for this reason I will seek orders that these proceedings be transferred to the Family Court. I attach for your reference a clear argument on the application s 75(2)(o) to issues of IPV in property proceedings, in a paper by Dr Sarah Middleton for the UNSW Law Journal. 4. I look forward to discussing these issues further with you tomorrow." [49] (emphasis added)
65. On 28 June 2018 a follow up letter was sent from Tebbutts to Ms Smith referring to their letter of 21 May 2018 which had asked Ms Smith to pay their bill and enclosed the five medical authorities. [50]
66. On 2 August 2018 Mr Broom sent a letter to Ms Smith notifying her that she was in breach of orders made in the property proceedings and that they were making an application for a litigation guardian to be appointed if orders were not complied with. [51]
67. On 31 August 2018 Ms Smith forwarded a letter to Mr Broom in the family property proceedings which stated, among other things: "3. You have suggested that you would seek instruction to apply for the appointment of a litigation guardian, which, I would note, was a prospect raised, then dismissed, by Kemp J. I do not need a litigation guardian and such an application would, I believe, be a waste of court time and Stephen's money. My difficulties with this process do not lie in any failure to understand the nature of the proceedings, but in the way in which they are being conducted. I am not suggesting impropriety on your part; however the exploitation of opportunities for conflict have only served to increase the emotional and financial burdens on me associated with the circumstances of the breakdown of the marriage. … 5. In addition, I have my own commitments and difficulties that are hampering my progress with complying with the orders such as: a. I have a full-time job that at the age of 57 would be disastrous for me to lose and therefore have little spare time to devote myself to the tasks I have been ordered to carry out; b. I have ongoing concerns and responsibilities for our children; c. I am acting for myself in antagonistic family law proceedings; d. I face constant reminders of family violence while I live in the house, requiring me to regularly participate in therapy for PTSD; e. The [REDACTED] house is large and old and the house and garden require constant maintenance, including dealing with wildlife problems and increased obligations to spend time watering the garden to keep it alive in drought conditions. These duties alone take up a large proportion of any spare time that I have; f. It takes time to sort possessions and pack up a house that has been a family home since 2003; and most significantly g. The NAB has threatened to force a sale of the house due to outstanding interest repayments." [52] (emphasis added)
68. On 27 September 2018 Ms Smith forwarded a sophisticated six-page letter to Mr Broom which among other things stated: "Settlement Proposal 20. I therefore propose to reinstate the offer made in my Calderbank letter, mutatis mutandis and without prejudice, I offer to settle this matter on the following basis: 20.1 Stephen immediately removes the caveat on the [REDACTED] house title, to facilitate my sale of the property. … 20.4 Stephen makes a payment to me of $750,000, in instalments if necessary, representing a compromise settlement for both property and maintenance claims. … 20.9 I will execute a deed of agreement to relinquish my right to bring any action against Stephen for damages, including aggravated damages, in respect of the assault of 21 June 2009 and other family violence." [53]
69. On 10 November 2018 an affidavit prepared by Ms Smith was sworn in the Family Court proceedings, which stated, relevantly, the following under the heading "Application to Appoint a Litigation Guardian": "6. The Applicant has filed evidence in support of his application to appoint a litigation guardian to represent me in these proceedings. I do not believe that the evidence filed supports this Application. 7. As to paragraph 57 of the affidavit of Mitchell Colin Broom sworn 31 October 2018 ("Mr Broom's Affidavit"), I agree that I appeared on my behalf in the directions hearing on 13 June 2018. I agree that his Honour Judge Kemp briefly referred to the possibility of appointing a litigation guardian, however I disagree that the words recalled: this Court may be faced with an application to appoint a litigation guardian to run the case for you Were the actual words spoken by his Honour or represents the entirety of his Honour's comments and I dispute the inference that his Honour advised the Applicant to seek such orders. I believe that his Honour then said words to the effect of: however this is probably not an appropriate solution in this case I agree that his Honour then directed the parties to negotiate a way forward, which I believe would not have been directed if his Honour believed that I did not understand the nature and consequences of the proceedings. 8. I am employed full-time by [REDACTED] as the officer who handles all legal liability claims nationally brought against its policy holders. In this position I manage and settle disputes directly and instruct external lawyers in litigated matters on a daily basis. 9. Prior to these proceedings I had no experience in, nor studied family law, however I am clearly capable of understanding the nature and consequences of the proceedings and I am capable of instructing solicitors to represent me. 10. I transferred my file from solicitors K.D Holmes to Watts McCray because of their partners' considerable experience with matters concerning family violence, including acting for the wife in Kennon. I subsequently asked them to cease to act because of the costs I incurred. I would prefer not to waste further money on legal representation and believe I can represent myself if the Applicant behaves fairly and reasonably and if I have good psychological support. I have prepared my Response, together with this affidavit, without assistance." [54]
70. In her affidavit of October 2021 Ms Smith asserts that she "consented to the application" as she found dealing with the proceedings overwhelming. Whilst that may have ultimately been the position, it was certainly not the position initially.
71. On 26 November 2018 a further letter from Tebbutts was sent to Ms Smith referring to their letters of 21 May 2018 and 28 June 2018, seeking confirmation as to whether they were still instructed to act for her in her proposed personal injury claim. [55]
72. On 7 December 2018 at 1:47pm Ms Smith sent an email to Ms Deirmendjian titled "Re: Your Personal Injury Claim": "Hi Nyree, My great apologies. I do not have a copy of your bill of 21/05/18 and could not find it in my emails - would you kindly forward me a copy and I will attend to it immediately. I have been self-representing in my family law action and trying to negotiate a settlement that will incorporate a compromise of my civil claim. At a recent direction hearing however, Stephen's lawyers made it clear that they would not consider this approach unless I issue civil proceedings. The chief impediment was the daunting task set for me by Kavita - to write my life's story. After considering my prospects of recovering an amount even in the vicinity of my financial loss due to Stephen's "intentional torts", I am now resigned to proceeding with my civil claim and collating my evidence. I will attend to my homework for Kavita and look forward to receiving a copy of your bill." [56] (emphasis added)
73. What this email evidences is that having failed to successfully use the proceedings as a threat in the family property proceedings to achieve the desired financial outcome, Ms Smith will now sue Mr Jones in tort. The decision-making was calculated and considered in the context of a perception held by Ms Smith that she could claim "disability" and have the relevant Court make the orders she wanted if the plan did not work.
74. There is however no explanation as to why she then did not proceed until 2021, and no satisfactory evidentiary basis upon which I could conclude that Ms Smith was under a disability as defined at any time while these tactical litigious battles were playing out i.e. June 2017 to 19 June 2021. It is clear from the South Pacific Private Hospital records that Ms Smith was consulting a psychiatrist and later a psychologist but nothing from them has been provided to shed any light on any condition that was rendering her incapable or substantially impeded from managing her affairs in relation to her case.
75. On 11 December 2018 Tebbutts forwarded a letter to Ms Smith: "Dear Helen Your Personal Injury Claim Thank you for your email dated 7 December 2018. As requested, we enclose a further copy of our bill dated 21 May 2018 and look forward to receiving payment before our office closes on 21 December 2018. We note that you will be attending to preparation of your statement as requested by Counsel…" [57]
76. On 27 December 2019, a year after the previous correspondence, Tebbutts sent the following letter to Ms Smith: "Dear Helen Your Personal Injury Claim We note that we have not heard further from you since our letter attached 11 December 2018, a copy of which is enclosed for ease of reference. If we do not hear further from you, we propose to close our file…" [58]
77. There is no suggestion Ms Smith replied or ever provided further instructions to Tebbutts. There is no medical or other evidence of any kind that supports or explains this period of incapacity. Ms Smith seems to assert that she became "overwhelmed" but I do not accept her bald assertion amounts to relevant "incapability" that she was or "substantially impeded" in managing her affairs relevant to the cause of action without something more.

Cross-examination and demonstrated untruths

1. Unfortunately Ms Smith's answers in cross-examination were mainly evasive, combative, or manipulative of the truth.
2. This tendency was demonstrated in the first few minutes of cross-examination in the following exchange about her October 2021 affidavit and its preparation: Q. In fact, you have a Master of Laws that you obtained from‑‑ A. The College of Law, inhouse. Q. ‑‑College of Law, subsequent to obtaining a bachelor's degree; correct? A. Inhouse practice, yes. Q. And you know the importance of the swearing of an affidavit, don't you? A. Yes. Q. And you know that it's a solemn occasion and you swear that the contents of the document are true and correct, don't you? A. Yes. Q. And so you would be very careful to read the document carefully and satisfy yourself as to, firstly, its correctness? First ‑ that's correct, isn't it? A. Yes. Q. And also that there's nothing in there that is untrue. A. Yes. Q. And you did that on this occasion, didn't you? A. Yes. Q. And thirdly, in a case such as this, that there were no material omissions from the affidavit. You'd regard that as something you would have been careful about too; correct? A. Well, you can't put in everything into an affidavit, so I'm not sure where you're going with that. Q. But you wouldn't leave out anything you thought that might have been important to the applications that were before the court. A. I can't say that. Because I don't know what's important in this. Q. Are you seriously telling us you don't know what's important to an application for an extension of time by a reason of ‑ let's call it ‑ disability under the provisions of the Limitation Act? A. That's correct. It's not my area of practice. [59]
3. Ms Smith was then taken to her email of 6 March 2018 (set out in par 84 of this judgment): Q. Now, having taken you to that document in your own hand, you would agree that the previous answer you gave about your lack of knowledge about the question of disability and the application of the Limitation Act was incorrect, wasn't it? A. Yes. Q. In fact, it was false, to your knowledge, wasn't it? A. I disagree with that. [60]
4. There was further deflection when asked about other emails Ms Smith sent to her lawyers in February 2018: Q. So as at 27 February 2018 you even knew about not only the case Guthrie v Spence but it's content, didn't you? A. Yes, I looked at the headnote of that‑‑ Q. Well, you did a little bit more than that, didn't you? Didn't you look at it properly and see what it was all about and how the plaintiff got through the gateway in that case? A. I didn't examine it in detail but I saw that, you know ‑ I saw that the limitation period was extended, yes. Q. Well, the purpose of this email was to effectively communicate to Nyree that you believed that you had a good case in accordance with the principles set out in Guthrie v Spence, wasn't it? A. Generally. As I said, it's not my area of specialisation but I can look things up. Q. Then could I ask you to go over to page 303, which is a little later on the same day. "Hi Nyree, I'm seeking to bring a possibly out‑of‑time civil action for assault. My circumstances, I am confident, bring me within the provisions of section 50F of the Limitation Act." Do you see that? A. Correct? Q. "This is a matter which will settle." See that? A. Mm‑hmm. Q. "Would you be in a position to brief counsel and act for me." Do you see that? A. Yes. Yes. Q. Then if you'd go over to page 354. On 1 March you were following her up again, and you were pointing out again how Anne was free at the start of the year, "will now be tied up for five weeks." Speaking about the other barrister, your current counsel, in Guthrie v Spence. "And my research assures me that she would be more than capable of dealing with this." A. Mm‑hmm. Q. "I have to leave early" et cetera. "Please" et cetera ‑ do you see that? A. Yes, correct. Q. You were actively involved in the process of informing your then solicitor about the matters that were of central relevance to an application for an extension of time due to disability under section 52F of the Limitation Act, weren't you? A. That's correct. Q. And you did so with the knowledge that you had acquired as somebody who was legally trained; correct? A. That's correct. Q. And your answer to me earlier, about not knowing anything about that effectively, was false, wasn't it? A. At the time of answering it I hadn't recalled that I'd looked this case law up, but I still maintain that I'm not ‑ it's not my area of specialisation. Q. I'm not worried about your area of specialisation. It was a topic you had carefully researched before you communicated with that lady who you wished to have appointed as your solicitor, wasn't it? A. I disagree that I carefully researched it. I just read that section of the act. I did research on Austlii. [61]
5. Ms Smith's answers in respect of Mr Knox's detailed advice to her were evasive and in my view, untruthful: Q. So you got a letter dated 18 October 2017? A. Correct. Q. Referring back to the conference? A. Correct. Q. Enclosing a copy of the advice? A. Correct. Q. Which you, no doubt‑‑ A. Drafted. Drafted. Q. ‑‑went through in great care, didn't you? A. I looked at it. Q. No, madam. Come on. You initiated all of this. You gave them the name of the case concerned. You picked them out because you knew of them. You looked at it closely, because you looked at the advice of senior counsel, didn't you? A. I would say that I read it. Q. You looked at it closely, didn't you? A. I read the document. When you say with great care, there is a difference between care that I would use in my job and the care that I would use in reading something this personal. Q. But this was a matter of vital interest to you on a topic that you had initiated and engaged lawyers about including an eminent senior counsel, correct? A. I read it. I certainly read it in detail‑‑ Q. You read and analysed it, and you sort of worked out whether or not it was helpful to you or not, didn't you? A. I read it. Sorry, I don't like having words put into my mouth, but‑‑ HER HONOUR Q. Madam, you know propositions will be put to you in cross‑examination. A. I know. Sorry, your Honour. Q. Please address the question. A. I did read it. I read it. [62]
6. The answers Ms Smith gave about her understanding as to the role of her affidavit in support of her application for a declaration as to disability were also deliberately obfuscating: Q. Apart from receiving information from the man at Brydens, and the man at Maurice Blackburn, which you think was around Christmas time and early 2018, you knew nothing about there being an issue, or potential issue, about a limitation period for the bringing of a claim, is that right? A. That's incorrect. Q. When did you first become aware of that as being a potential issue? A. Well, I studied law at university, so to say that I wasn't aware is incorrect, but ‑ and through my work as a claims manager, I'm also aware of limitation periods. But I also became aware through my work as a claims manager that there are certain basis on which that limitation period is extended, according to, you know, a range of factors. Q. But apart from the casual representation to you by lawyers who would not take your case on, namely Brydens, and Maurice Blackburn, you had not received any information about possible application of limitation periods to your circumstances and you're bringing a claim, is that right? A. That's not correct. Q. What other information had you received, and from whom? A. I'm sorry, I honestly cannot remember who ‑ where such information has come into my mind. You know, there's a lot of, a lot of things that one learns that, you know, you don't know where you've learnt it, but, I'm sorry. Q. The bold heading at the top of page 8 "Attempts to commence proceedings" you knew to be based in part on what you'd been told by your lawyers, and also your own knowledge and experience about the issue to be a very important topic in relation to this present application, didn't you? A. Sorry, could you repeat that. I'm sorry. Q. Because of your training, background and experience, and the association you had had with your lawyers concerning this case, you knew that the material that you were to put into your affidavit respecting your attempts to commence proceedings was of particular importance to the present application, didn't you? A. I'm sorry, I didn't ‑ hadn't turned my mind to that at the time of preparing this affidavit. Q. Are you seriously telling the Court that you didn't realise at the time of preparing your affidavit that you didn't know it was of particular import to this application to set out everything you could about your attempts to commence proceedings? A. I'm sorry, I'm not trying to be misleading. This affidavit is in relation to the civil claim, not in relation to the defendant's claim to have this struck out, so I didn't turn my mind to that specifically. Q. What did you understand the civil claim that you were bringing to be? A. The claim for damages for assault. Q. Did you not prepare this affidavit in support of an application you were bringing for an extension of time in relation to these proceedings? A. I don't believe I did. I thought this affidavit was in relation to my civil claim. [63]
7. Ms Smith stubbornly maintained denials in the face of overwhelming evidence to the contrary, for example: Q. In paragraph 45, subparagraph I, at the top of page 10, you informed your husband that if he agreed to your proposals, you would execute a deed of agreement to relinquish your right to bring any action against Stephen for damages including aggravated damages in respect of the assault of 21 June 2009 and other family violence? A. That's correct. I made that offer. Q. Well, that means as at June of 2017, you were fully aware of the availability to you of the right to bring an action for damages, including aggravated damages, inter alia in respect of the alleged assault of 21 June 2009? A. That's correct. Q. Not only did you know of that right, but you were prepared to enter into a compromise of any remedies you had concerning that right? A. That's correct. Q. You didn't need to be informed anything by anyone about that right and that remedy, did you? A. No, that's correct. Q. You chose at that point to not do anything with respect to that claimed right, and those claimed remedies because you saw it to be for your forensic advantage to do otherwise in connection with your family proceedings; correct? A. I totally disagree with that. [64]
8. Ms Smith's answers about an asserted inability to instruct her lawyer with the facts regarding her claim were also unsatisfactory: Q. Well, your solicitor back in 2017 asked you to provide a detailed statement including the matters I read out to you at the foot of page 10 and on to the top of page 11; correct? A. That's right. She asked me to, but I couldn't do that, either. Q. So you didn't do that, either? A. No, I didn't. Q. So you didn't provide any statement to her? A. No. Q. So Mr Knox had to go through the conference with you without the benefit of any statement; is that right? A. I ‑ I may have ‑ I may have told Ms Pai some of the information, but I didn't prepare that detailed statement for her. Q. Thank you. I just wanted to get that clear in my mind before we go to the next topic. A. Not that I recall. If I did that, I certainly don't have any recollection of it. Q. But what do you mean, "Not that I recall"? Your position is that you were so incapacitated when you had to address the subject matter that you just couldn't do it; that's what you're telling - A. Well, when I read that paragraph on ‑ at the bottom of page 10, I ‑ what date ‑ I couldn't ‑ I couldn't have done that. Q. All right. Well, that's been your evidence all the way through, as one of the reasons why you didn't pursue your claim, because you just couldn't sit down and write anything out? A. That's right. I mean, I ‑ sorry, I could write legal letters, but I couldn't write about the ‑ I couldn't write about the traumatic events properly. Q. Well, can I ask you to go forward to the bundle of documents that I've given you here. If you go to page 15, this is exhibit C? A. Page 15, sorry? EXHIBIT C SHOWN TO WITNESS Q. Page 15. You see at 9.47, in the morning, this file‑‑ A. Looks like I did it. Q. ‑sends to Mr Knox, and cc's it to a Barbara Aboud, by the way, do you know who Barbara Aboud who was? A. I think she was Ms Pai's assistant. Well‑‑ Q. A document, just let me ask the question and don't try and jump ahead as her Honour has asked you to do. It has an attachment called, "Helen Smith, 12 October 2017", which is over the next page, Helen Smith 12 October 2017, and then there is, which I'll come back to the content of with you shortly, but just for present purposes, a four page document setting out the various headings, information for use by Mr Knox in the conference that was appointed for 2.30, later that day? A. I've forgotten that I'd written this and I wish I'd remembered. Q. But, Madam, this is not a matter of memory, the whole thrust of your evidence was of incapacity. I could not have done it, because every time I tried to address this issue, I burst into tears and I just couldn't do it. That's what you've told us, isn't it? A. (No verbal reply) Q. Isn't it? A. That's incorrect. Q. That's what you have told this Court, isn't it? A. I agree that in a previous question that you recently asked me, I said I couldn't have done it, and when you directed me to this statement, I was surprised that I was able to do it. But, the evidence that I gave in the affidavit is that I was asked to write my life story and I couldn't do that. Q. No, that is not what you said. Every time I thought about what had occurred during the marriage or the events, I would burst into tears. I avoided thinking about it as much as I could. I found that I was unable to give my solicitors instructions or deal with compiling the evidence that was asked of me. That's what you said in your affidavit, isn't it? A. That's correct. But, compiling the evidence that was asked of me was not just simply this. Q. What you say, you compiled some evidence but not all of the evidence, is that what you're now telling her Honour? A. Of course, I compiled some of the evidence, because I submitted with ‑ submitted it with my affidavit or what. [65]
9. Further answers given about the content of Ms Smith's March 2018 instruction email to her solicitors were also unsatisfactory and argumentative: Q. And it says, your last words "That also recommended this approach", being "the approach of a section 50F application to have the limitation period suspended for the duration of disability until at the earliest April 2017"? A. Yeah, well, sorry, what are you asking me there? Q. Well, is that not what you were saying or rather informing your solicitor of, look, don't worry about it, Nyree, I've had a good look at this, and I'm telling you based on all of the research that I've done and the advice that I got from Mr Knox, that a section 50F application to have the limitation period suspended for the duration of disability until, at the earliest, April 2017, should be included in the statement of claim? A. I refute that I've had ‑ that suggests I've had a good look at it. I just said, I've seen some notes somewhere, that's how I approached it. Google, AustLII, look things up, worry about it, you know and then ask some lawyers to do it for me. Q. You introduced the paragraph by the words, "Further he recommended that", that is, giving it the imprimatur of the senior counsel who you had retained and had a conference with? A. A recommendation, not imprimatur. [66]
10. The following is an illustration of the approach taken by Ms Smith throughout the cross-examination, combatively seeking to take control of the questioning and providing manipulative answers: Q. If you look at the first paragraph, I don't want to labour this any longer than I have to, it's begun or it begins with the proposition, I can't get what I want out of family law, so I need to do this as a separate civil action and this is what I was advised about how I move forward on that point. Isn't that really what the purport of this email is? A. I wouldn't say that I can't get what I want out of family law, I was saying that I've been advised that the family law proceedings are inadequate to achieve compensation. Q. To her credit, if you go to 361, your then solicitor Nyree, responds on 7 March? A. That's me to Nyree. Q. That's you to Nyree, I'm sorry, my apologies? A. I said I was feeling quite anxious. HER HONOUR: Ma'am, could you wait for a question please. WITNESS: Sorry. HER HONOUR: Stop volunteering things that you're not asked. CAMPBELL Q. I'm glad you told me that. Could I just ask you to stop reading and look at me when I'm asking you a question. I'm glad you told me that you were feeling quite anxious at this point. Because if you had read the next few words, you would have immediately appreciated that you had said, "I am feeling anxious about any further delays in commencing the civil action, as it's a critical piece in the puzzle of a satisfactory resolution of my Family Court proceedings." You weren't feeling anxious because of this claimed consequences of alleged abuse on the part of your former husband, but, because of the constellation of circumstances confronting you with respect to delays in the commencing of civil proceedings and the achieving of a satisfactory result in connection with your Family Court proceedings. That's the point isn't it? A. I disagree with your interpretation. Q. They're your words aren't they Madam. That first sentence in that email is unequivocal and I suggest, unarguable. "I have a window of availability today and am feeling quite anxious about any further delays in commencing the civil action, as it's a critical piece in the puzzle of a satisfactory resolution of my Family Court proceedings." That's what you said to your solicitor, is it not? A. Yes, I agree with that. Q. That was true, wasn't it? A. When I refer to puzzle? Q. Was that sentence true or false, madam? A. The sentence is true. [67]
11. A number of assertions Ms Smith made in her affidavit were demonstrably untrue. For example, the admission to South Pacific Private Hospital was 3 weeks, not 5 weeks. [68] This is a relevant untruth because a continuous 4 week (28 day) period is the minimum period of required incapacity, and admission to hospital in this way would be an arguable period of incapacity.
12. The assertion that Ms Smith "began to think that she should bring civil proceedings" (after the April 2017 inpatient stay) was followed by a narrative that completely left out her focussed and deliberate pursuit of those issues via the family property proceedings and the instructions that she gave and the comprehensive advice she received about that between June 2017 and October 2017. She untruthfully asserted (by this absence) that it was "not until 2018" with the engagement of Ms Deirmendjian that she "finally" received help and "was informed that there were issues about the limitation period".
13. Ms Smith already knew, demonstrably by the advice of Mr Knox in October 2017, but in my opinion likely long before that given her employment as a legally qualified insurance liability claims officer, that there were issues about the expiration of the limitation period applying to her claim.
14. Her assertions in paragraphs 46 to 47 of her affidavit under the heading "Attempts to commence proceedings" were followed by further untruths, modelled no doubt on what Ms Smith perceived was successfully argued in "Guthrie" asserting that she "could not" write down what had happened to her like her barrister had asked her to, and that she was "unable to give instructions". This was untrue as she had already done these things in 2017.

Disability not established

1. The relief sought by Ms Smith was a declaration in these terms: "So far as the cause of action that the Plaintiff alleges is concerned, the Plaintiff was under a disability from the date on which the cause of action was discoverable by the Plaintiff, and that the disability lasted sufficiently long for these proceedings to have been brought within the applicable limitation period." [69]
2. Ms Smith bears the onus to persuade the Court on the balance of probabilities that she was incapable of or substantially impeded in the management of her affairs in relation to her cause of action. During initial argument, the period of asserted disability was identified by Ms Balendra as 21 June 2009 to the date of filing the Statement of Claim, 19 June 2021. There are obvious problems in approaching the question of disability in such an unfocused way in this particular case, not the least being that there are long periods within those 12 years about which the Court has no evidence at all about Ms Smith's capacity to manage her affairs in relation to her cause of action. Unlike Guthrie, and despite what Ms Smith baldly asserted in her affidavit, she was not in fact avoiding addressing the subject matter with lawyers until shortly before the claim was filed. She addressed it extensively throughout the last half of 2017 and in early 2018. She also professed (initially at least) an intention not to sue Mr Jones as she did not want to upset their children. This was a choice, not an incapacity or impediment.
3. Certainly from June 2017 there is a plethora of evidence that she was well able to manage her affairs in relation to the cause of action at a high level of tactical decision-making. I do not accept that she had anything other than a correct and nuanced understanding of her rights to sue, how and why, and the potential difficulties delay would cause from, at the very latest, October 2017. Instead, with a somewhat cynical and brazen confidence, she chose to deploy her cause of action in the family property proceedings, comfortable that her assertion of disability as a "battered wife", unable to deal with the subject matter of the proceedings, would be taken at face value later in another Court if her chosen approach failed.
4. She was well and thoroughly advised by Mr Knox SC in October 2017. Only when her plan did not pay off over the following years of property proceedings negotiations did Ms Smith then direct attention to filing her civil claim in this Court.
5. As referred to in other parts of this chronology of events, Ms Smith filed an affidavit in support of her notice of motion. That affidavit does not, as would be expected, candidly set out an objective and appropriately evidenced chronology of mental health and other difficulties that could be argued to support a finding of disability as defined and the legal advice she sought and was given about her rights to sue. It is in my view a deliberately incomplete, selective and manipulative narrative.
6. I have significant reservations about the extent to which that affidavit truthfully reflects Ms Smith's capacity to manage her affairs in relation to the cause of action. Regrettably, I have concluded that she has not been frank or forthcoming in that affidavit as to her asserted incapacity and impairments. She has instead presented a deliberately incomplete, manipulative and ultimately dishonest picture of her capacity, decision-making, competence, knowledge and understanding.
7. The tort was complete at the time the damage was suffered. Here, the tort was assault and battery on various occasions up to 21 June 2009. The latest damage was suffered before or on 21 June 2009. Ms Smith, as a qualified lawyer practising in insurance claims would have been well aware that time commenced to run on that day, unless an assertion of "disability' is made out. Any suggestions she made in her evidence to the contrary I do not accept. Her sophisticated correspondence about this in 2017 and early 2018 to her solicitor Ms Deirmendjian proves unequivocally that she knew and understood all relevant matters then, if not before.
8. Ms Smith deliberately chose not to file her claim, but to pursue her rights to do so in another forum, from at least June 2017. The filing date in this Court is four years later. Even if I took the view that she was "disabled" until June 2017, her filing in June 2021 is too late.
9. Dr Siotia's 2021 and 2022 reports are too vague to assist. He stated that her "psychological injuries are quite significant and had been so for some time" and that "retrospectively" they "probably would have impacted her ability to deal with events arising out of this period including her claim". His follow up report in March 2022 does not take the matter any further other than to assert that reminders of the abuse "trigger" Ms Smith, resulting in further deterioration in her mental health and that she "avoided any reminders of abuse", but this is obviously based upon the incomplete narrative provided in the affidavit and the history he took from her.
10. Ms Balendra submitted that the expert evidence shows Ms Smith was incapacitated and the very fact that Ms Smith was "not able" to progress her claim in 2017 and 2018 despite wanting to do so, is evidence of disability. I reject those submissions.
11. The scant reports of Dr Barnes and Ms Purkis do not sufficiently address the statutory test and I have concluded for the reasons set out at pars 108 to 128 that Ms Smith's evidence is unreliable. Ms Smith has not discharged her onus of proof in relation to the suspension of the limitation period and so her cause of action remains statute-barred.
12. It follows that her cause of action is not maintainable, and so it is an abuse of process and must be dismissed. This is one of those "clearest of cases" referred to in Shaw, and whilst it is usually undesirable to determine limitation issues at an interlocutory stage, it is consistent with the overriding purpose rule and ss 56, 57, 58, 59 and 60 of the Civil Procedure Act 2005 (NSW) to do so here and to dismiss the proceedings at this stage, given the question of disability has been fully explored with evidence, cross-examination and the assistance of counsel for both parties.

Orders

1. In respect of Ms Smith's Notice of Motion filed 28 October 2021, I make the following orders: 1. Notice of Motion dismissed. 2. The plaintiff is to pay the defendant's costs of the Notice of Motion.
2. In respect of Mr Jones' Notice of Motion filed on 9 August 2021, I make the following orders: 1. The plaintiff's proceedings are dismissed. 2. The plaintiff is to pay the defendant's costs of the Notice of Motion filed 9 August 2021 and the costs of the proceedings.

Appendix (150959, pdf) Appendix (150959, pdf)

Endnotes

1. Amended Statement of Claim, filed 4 March 2022, par [5]
2. Amended Statement of Claim, filed 4 March 2002, par [6]
3. Exhibit 1, Affidavit of Helen Smith, 28 October 2021
4. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 339
5. Exhibit 1, Affidavit of Helen Smith, 28 October 2021
6. Exhibit 1, Affidavit of Helen Smith, 28 October 2021
7. Exhibit 1, Affidavit of Helen Smith, 28 October 2021
8. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 147
9. Report of Dr Purkis to Ms Pai, 1 November 2017, appended to Exhibit 1, Annexure A
10. Exhibit 1, Affidavit of Helen Smith, 28 October 2021, Annexure B
11. Report of Dr Purkis, appended to Exhibit 1, Annexure B
12. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 5 & 139
13. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 48
14. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 139 - report of Dr Barnes, 2 March 2017
15. Exhibit 4, South Pacific Private Hospital clinical notes
16. Exhibit A, Affidavit of Michael Colin Broom, 9 August 2021, p 7 of Annexure A
17. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 261
18. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 51
19. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 56
20. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, par [30]
21. Exhibit C, Affidavit of Mitchell Colin Broom, 23 February 2022, p 3 of Annexure A.
22. Exhibit C, Affidavit of Mitchell Colin Broom, 23 February 2022, p 3 of Annexure A.
23. Exhibit C, Affidavit of Mitchell Colin Broom, 23 February 2022, p 10 of Annexure A.
24. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 329
25. Exhibit C, Affidavit of Mitchell Colin Broom, 23 February 2022, p15 of Annexure A
26. Exhibit C, Affidavit of Mitchell Colin Broom, 23 February 2022, p 20 of Annexure A
27. Exhibit C, Affidavit of Mitchell Colin Broom, 23 February 2022, p 31 of Annexure A
28. Exhibit C, Affidavit of Mitchell Colin Broom, 23 February 2022, p 75 of Annexure A
29. Exhibit C, Affidavit of Mitchell Colin Broom, 23 February 2022, p 32 of Annexure A
30. Exhibit C, Affidavit of Mitchell Colin Broom, 23 February 2022, p 84 of Annexure A
31. Exhibit C, Affidavit of Mitchell Broom, 23 March 2022, p 80 (Email Watts McCray dated 18 October 2017)
32. Email of Helen Smith, 20 December 2017
33. Email of Helen Smith, 21 December 2017
34. Email of Helen Smith, 22 December 2017
35. Exhibit C, Affidavit of Mitchell Colin Broom, 23 February 2022, p 65 of Annexure A
36. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 302
37. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 303
38. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 304
39. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 308
40. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 354
41. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 357
42. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 358
43. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 359
44. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 359
45. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 365
46. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 380
47. Tcpt, 8 June 2022, p 28 (45)
48. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 392
49. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 179
50. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 399
51. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 187
52. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 189
53. Exhibit A, Affidavit of Michael Colin Broom, 9 August 2021, p 84 of Annexure B
54. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 196
55. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 401
56. Exhibit B, Affidavit of Mitchell Colin Broom, 11 February 2022, p 402
57. Exhibit B, Affidavit, Mitchell Colin Broom, 11 February 2022, p 405
58. Exhibit B, Affidavit, Mitchell Colin Broom, 11 February 2022, p 406
59. Transcript, 30 March 2022, p 29(7) to p 30(14)
60. Transcript, 30 March 2022, p 32(17)-(24)
61. Transcript, 30 March 2022, p 33(7) to p 34(19)
62. Transcript, 30 March 2022, p 64(8)-(48)
63. Transcript, 8 June 2022, p 12(37) to p13(38)
64. Transcript, 8 June 2022, p 24(29) to p 25(3)
65. Transcript, 8 June 2022, p 40(28) to p 42(8)
66. Transcript, 8 June 2022, p 62(45) to p 63(14)
67. Transcript, 8 June 2022, p 63(25) to p 64(24)
68. Exhibit 1, Affidavit of Helen Smith, 28 October 2021, par [42]
69. Notice of Motion filed 28 October 2021 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 October 2022