Walters & Ors v Finch [2005] VSCA 203

1 In his reasons for judgment, which I have had the benefit of reading in draft, Ashley, J.A. has dealt fully with each of the points advanced in support of these applications for leave to appeal. I agree that the applications should be refused for the reasons which his Honour gives.

2 I have had the considerable advantage of reading in draft the reasons for judgment written by Ashley, J.A. I agree in them and in the disposition of these applications that his Honour proposes.

ASHLEY, J.A.:

The Applications/Appeals

3 Before the Court are three applications for leave to appeal and, if leave be granted, appeals against the order of a County Court judge made on 12 November 2004. By that order, made in reliance upon s. 23A of the Limitation of Actions Act 1958 (the Limitation Act), the time within which the respondent could commence an action was extended. The applicants[1] are Southern Health, Trudy Kennedy, Williams Walters and Graham Isaacs. The respondent, and plaintiff, is Allan Michael Finch. The applicants are four of the five defendants named in the writ. The other defendant, Herbert Bower, is now deceased. That was the situation when the s. 23A application was heard in the County Court; and by then the respondent, it seems, had discontinued the proceeding which he had commenced against that defendant. Before this Court senior counsel for the respondent renounced any attempt by his client to rely upon Dr Bower's alleged negligence in proof of the claim, founded on vicarious liability, against Southern Health.

1 The Nature of the Respondent's Claim. The Defences

4 The respondent's claim for damages as pleaded against the various applicants does not in all respects coincide. But the gist of the matter can be quickly stated. According to the plaintiff's case,[2] he was wrongly diagnosed as being "a woman in a man's body" in the period September 1986-April 1998. The diagnosis was made by Dr Kennedy, a psychiatrist, and Dr Walters, a gynaecologist and obstetrician. It was also made by the late Dr Bower, a psychiatrist. He, the respondent, was treated with female hormone therapy, and later by radical surgery which had two main elements: first, creation of female breasts; and second, removal of his penis and testicles, and the creation of a structure akin to a vagina. The surgeon was Mr Isaacs. The diagnosis which led to the surgery, it is claimed, was not simply wrong, it was negligently wrong. There was a failure to apply relevant diagnostic criteria and to heed and act in accordance with an international protocol. Within that failure there was a failure to apprehend the significance of, or to act in reliance upon, a psychological assessment of the respondent made in mid 1987. That assessment concluded that the respondent's responses were more masculine than the average. The misdiagnosis resulted in the inappropriate administration of a female hormone drug; and later surgery. The surgeon himself failed to psychiatrically assess the respondent; or at least to ensure that the diagnosis made by others was soundly based. Southern Health - in substance, the Monash Medical Centre - was vicariously liable for the defaults of the other defendants, whose work had been done in or from a "Gender Identity Clinic" conducted by the Centre. In consequence of the negligence of the defendants the respondent had suffered both physical and psychiatric injury.

5 Each of the applicant defendants filed a defence before the s. 23A application was heard in the County Court. Each defendant denied liability and pleaded that the respondent's action was statute-barred. Whilst denial of liability was maintained, Dr Kennedy admitted diagnosing the respondent as a transsexual[3]; and Mr Isaacs admitted that he performed "gender re-assignment surgery" in April 1988. The defence filed for Dr Walters obfuscated, I add, when it addressed the respondent's allegations that he, the doctor, had diagnosed the respondent as a transsexual, and had prescribed female hormone drugs. But notwithstanding Dr Walters' defence, it seems pretty clear from the pleadings that the main contest in the matter, were it to go to trial, would be whether the diagnosis made was negligently wrong; which is not to say that assessment of damages would likely be free of some difficulty.

The section 23A application.

6 The respondent's cause of action against each of the applicant defendants having arisen not later than April 1988, the pleas that the action was in each case statute-barred must have succeeded excepting if plaintiff was granted an extension of time under s.23A of the Limitation Act. The writ was filed on 23 September 2003. The relevant application was initiated by summons filed 11 June 2004.

7 The summons was supported by the respondent's affidavit sworn 9 August 2004. Exhibited to the affidavit, inter alia, were a psychologist's reports dated 10 June 1987 and 16 March 1988, the report of Dr Byron Rigby to which I referred at footnote 2, and what the respondent asserted was the relevant international protocol. The first of the psychologist's reports did opine that the respondent exhibited more than average masculine traits; the latter ultimately concluded, despite some qualifying aspects, that there did not appear to be any contra-indications to gender re-assignment.

8 None of the applicants went on affidavit - as they might have done to aver a specific prejudice.

9 The doctors' files concerning the respondent had evidently been discovered before the hearing of the application. No party sought to introduce any of those files at the hearing.

10 The respondent was cross-examined upon his affidavit. That cross-examination apart, a relatively few documents were introduced. They included transcript of the ABC program "Australian Story" for 2 April 2003, which pertained to the respondent; and correspondence passing between the respondent and his successive solicitors from time to time in the period April 2000 to April 2003.

The Decision. Issues raised on the appeal

11 The learned judge delivered written reasons on the day that he made the order granting the s.23A application. The applicants now take issue with aspects of his Honour's reasons, and with his ultimate conclusion. That said, it was common ground that his Honour, in terms, addressed the various matters mentioned in s.23A(3) in the course of an analysis of, as he perceived it, all the circumstances of the case. Save in one respect it was not contended for the applicants that his Honour misunderstood the relevant law. Rather, the complaint was that his application of it had been faulty.

12 Because the case raised against each applicant does not in all respects coincide, the submissions made on behalf of the applicants were not identical. It is further the case that in some instances a submission advanced for one applicant was disavowed by counsel appearing for another applicant. That said, what follows is, I think, a fair summary of the submissions advanced on behalf of the applicants collectively.

First, in one respect the learned judge misapplied s.23A. He treated the prejudice to the applicants by reason of the delay as being the less because the respondent would bear the onus of proof at trial.

Second, the learned judge mistook the facts in a number of respects:

• He wrongly characterized the gist of the respondent's claims against the applicants.

• He wrongly concluded that the respondent did not know until 1996 the gist of the psychologist's June 1987 report - which provided an explanation, as the respondent ultimately put it, for delay between 1988-1996.

• He wrongly concluded that four circumstances were present in the period 1996-2003 which explained, as he perceived it, the respondent's delay in that period.

• In the event that his conclusion as to the presence of the four circumstances was not wrong, his further conclusion that such circumstances explained the particular delay was wrong.

Third, the judge gave insufficient weight to the circumstances of prejudice to the applicants. Apart from general prejudice by reason of the elapse of time - which was conceded by the respondent - there was specific prejudice by reason of Dr Bower's death. The judge's mischaracterization of the nature of the respondent's claims against the applicants meant that the impact of this prejudice was under-valued.

Fourth, in the event that specific error was not discernible, the result of the application was so plainly unjust or unreasonable that the discretion invested in the judge under s.23A must have miscarried.

13 All of the matters to which I have adverted were raised in the context of unqualified acceptance that these were applications for leave to appeal[4] from a discretionary judgment, in which case the principles expounded in authorities such as House v. The King[5], Lovell v. Lovell[6] and Australian Coal & Shale Employees' Federation v. The Commonwealth & Ors[7] applied. In that context the first basis of challenge should be characterized as a contention that the learned judge acted upon a wrong principle; the second as a submission that his Honour mistook the facts; the third as raising an issue of weight by reason of mistake as to the facts; and the fourth - which called in aid, inter alia, alleged failure to give adequate weight to the general prejudice to the applicants - as fitting within the residual category of case described by the authorities. Were any of the first three challenges made good, the discretion would be re-opened. If the last challenge was made good, the exercise of discretion must be held unsound.

A Wrong Principle applied?

14 In my opinion there was nothing in the submission that the learned judge wrongly brought to account, in effect as a consideration diminishing prejudice, the fact that the respondent would bear the onus of proof at trial. Counsel pointed to his Honour's remark, in the course of discussing prejudice, that

"in any trial proceedings the onus to satisfy a jury of negligence is upon the plaintiff."[8]

But the remark must be understood as a response to a submission advanced for Dr Kennedy that, as his Honour noted it,

"the defendants would find themselves unable to defeat a case based predominantly upon oral allegations of the plaintiff ...."

His Honour was only pointing out, and correctly, that it would not be for the defendants to defeat the plaintiff's claim at trial; it would be for the plaintiff to prove it.

Mischaracterisation of the Claim?

15 The applicants relied upon the following passage in his Honour's Reasons to show that he mischaracterised the nature of the respondent's claims, this bearing upon his approach to the question of prejudice:

"I do not in reality think that the defendants, if the case proceeds, will have to mount a defence primarily to meet the oral allegations of the plaintiff, whatever those allegations may be. The case will essentially revolve around an assessment of the clinical advice given as recorded in the appropriate clinical notes and expert assessment of such advice. As I have said, there is no evidence that there is any deficiency in such clinical notes or records concerning the plaintiff from any of the defendants and I say again, insofar as Dr Bower is concerned, that I consider that the Evidence Act can be utilized."[9]

16 It was submitted for the applicants that in fact the respondent's oral evidence would be of central importance, as would be their recollection of pertinent circumstances. The respondent's case, counsel submitted, was all about diagnosis. It could not be supposed that the applicants' notes would reveal the reasoning process by which they had arrived at their respective diagnoses. Diagnosis must have involved a process of evaluation in respect of which memory must have dimmed.

17 In my opinion his Honour's observation did not mischaracterise the claim. The submissions made for the applicants seemed to ignore the adverb "primarily" in the passage cited above. It is apparent that his Honour thereby recognised that in some part, pertinent to the issue of prejudice, the applicants would likely be put to meet a claim founded on the respondent's oral evidence. That implied his Honour's recognition of the frailty of memory with the elapse of years. Indeed, such recognition could hardly be gainsaid in light of his Honour's citation of, and acceptance of the relevance of, a powerful passage in the judgment of McHugh, J. in Brisbane South Regional Health Authority v. Taylor[10].

18 Beyond that, and remembering that it would be for the applicants to meet the respondent's case as pleaded and particularised, it was apparent that a considerable number of the matters pleaded and particularised had either been admitted, were improbably in issue, or would not depend upon the respondent's oral evidence.

19 The first of the applicants whom the respondent consulted in point of time, according to the statement of claim, was Dr Walters. That defendant's qualifications and area of particular medical interest were admitted. Although, as noted earlier, the doctor's defence did not squarely admit the respondent's attendance, the diagnosis made, or the prescription of a female hormone drug from the time of the respondent's first consultation, it seems highly improbable that those matters would be in dispute; or, if they were, that they would depend upon the respondent's oral evidence. Even the most basic medical notes would indicate dates of attendance, diagnosis and any treatment prescribed.

20 Then, going to the respondent's allegation that the diagnosis was made negligently, the statement of claim proposes the necessary relevance of certain diagnostic criteria, and an international protocol. Whether those criteria and that protocol were so relevant could not be matters of which the respondent could give evidence.

21 Assuming the relevance of the particular criteria, the respondent's allegation that he did not meet them would require examination of the history which he gave the doctor. It is conceivable, but speculative, that the respondent would give evidence of having given a history other than that which the doctor recorded. It is reasonable to assume that some history was recorded. It is an alien concept that a doctor would make a diagnosis and prescribe treatment without recording the substance of the history provided. There was nothing in the material before the judge to suggest that Dr Walters' methodology was different to what - acknowledging differences in detail and quality of note-taking from one doctor to another - should generally have been expected.

22 Then, as to alleged non-compliance with the international protocol, the matters alleged by sub-paragraphs B(i) and (iii) of the Particulars subjoined to paragraph 12 of the statement of claim could not depend upon oral evidence of the plaintiff. As to sub-paragraph (ii), the emphasis is upon the alleged need for a doctor to carefully evaluate the patient's reasons for seeking gender re-assignment, and for careful evaluation of the patient's beliefs and attitudes upon which such reasons are based, before proceeding to treatment. The foundation for such evaluation, assuming the proved relevance of the protocol, must be what the patient told the doctor at consultation. It is conceivable, but speculative, that the respondent would give evidence of having told the doctor something that was not recorded. The more difficult matter, still assuming the relevance of the protocol, might be the doctor's recollection of his thought processes at the time. Acknowledging the relevance of such recollection, and the prejudice inherent in delay by reason of damage to memory, that is a matter distinct from the criticism of his Honour's judgment which is now under consideration.

23 Finally concerning Dr Walters, it is alleged by the statement of claim that the respondent was administered a female hormone drug from the time of first consultation; and that this was not in accordance with prevailing treatment practices. Whether a female hormone drug was prescribed from the outset, as I said earlier, would be very unlikely to depend upon the respondent's evidence. Again, the respondent's allegation that it was negligently wrong to commence such treatment before he was adequately psychiatrically assessed would depend upon evidence of what was reasonable practice at the time; and upon dates of attendance on specialist psychiatrists (and possibly a psychologist also).

24 According to the statement of claim, Dr Kennedy was the next applicant in point of time who assessed the respondent. The alleged dates of attendance - 2 June 1987, 10 September 1987 and 6 January 1988 - were admitted; as were further attendances on 29 February 1988 and 17 March 1988, and attendances subsequent to the radical surgery which was conducted in April 1988. So also Dr Kennedy admitted that she diagnosed the respondent to be a transsexual and that she ultimately formed the opinion that there did not appear to be any contra-indications to gender re-assignment.

25 The respondent's allegation that the advice which Dr Kennedy gave him - that is, that he was transsexual and that gender re-assignment was an appropriate treatment - was given negligently, rested upon in part upon diagnosis in the face of the diagnostic criteria and international protocol to which I have earlier referred. What I have said about those matters in respect of the respondent's claim against Dr Walters is equally in point.

26 There are three further elements to the respondent's claim against Dr Kennedy. He alleges that she did not investigate, adequately or at all, the consequences of his relationship with his father; that she did not have regard, adequately or at all, to the psychologist's report dated 10 June 1987; and that she failed to take into account the effect of female hormone therapy which the respondent was taking when he consulted her.

27 It would be a matter for evidence at trial whether Dr Kennedy was provided in 1987 with a copy of the psychologist's report; likewise whether she knew that he was then taking a female hormone drug. It seems very improbable that proof of such matters would depend upon the respondent's oral evidence. Dr Kennedy admitted that the respondent was referred to her by Dr Walters. The psychologist's report of 10 June 1987 was provided to Dr Walters. It is really inconceivable that he did not provide Dr Kennedy with a copy, particularly as the later psychologist's report[11] was prepared upon reference by Dr Kennedy. Further, it is really inconceivable that Dr Kennedy was not informed by Dr Walters that he had prescribed the respondent a female hormone drug.

28 In respect of each of the allegations that Dr Kennedy did not take into account, sufficiently or at all, the June 1987 psychologist's report and the fact that the respondent was receiving hormone therapy, it must be accepted that to some extent this would involve the doctor searching her recollection; for it is not likely that her notes would disclose her reasoning processes. It should also be accepted that her recollection would be impaired by the passage of years, this bespeaking prejudice. But it is improbable that any evidence which might be given by the respondent would loom large in such a connection.

29 On the other hand, with respect to the allegation that the doctor did not take into account, sufficiently or at all, the respondent's relationship with his father, it is possible but speculative that the respondent would give evidence of things said to the doctor which her notes did not disclose; and that by reason of the elapse of time the doctor could have difficulty in denying that the same were said. It ought therefore be acknowledged that in this connection there could be prejudice by reason of the doctor having to face oral allegations, as well as prejudice in respect of her recollection of her reasoning process a propos the patient's relationship with his father.

30 I turn to the claim raised against Mr Isaacs, the surgeon. His qualifications and area of practice were admitted. Likewise that he performed surgery upon the respondent in October 1987 and April 1988. It is a matter of record that the first surgery was performed prior to the psychologist's second report being prepared.

31 The respondent pleads that Mr Isaacs acted negligently by performing surgery without a proper diagnostic foundation having been provided. That plea is particularised by allegations that the doctor should have independently diagnosed the respondent's condition by psychiatric examination, regardless of the diagnosis reached by others; or that he should have ensured at least that the diagnosis of others had been achieved in accordance with prevailing diagnostic criteria and the international protocol.

32 Whether Mr Isaacs was in breach of duty of care by not independently diagnosing the respondent's condition would depend first of all upon whether reasonable care required him to make such an assessment - not a question for evidence by the respondent. If there was such an obligation, the question whether the doctor conducted any psychiatric examination would very likely be revealed by his notes. This was, after all, radical surgery. It seems very unlikely that any psychiatric examination would have gone unremarked. Then, whether the doctor was in breach of duty by not ensuring that the diagnosis made by others had been made by taking relevant criteria and a relevant protocol into account would depend in the first instance upon the respondent establishing that such an obligation existed. If it did not, then any want of enquiry by Mr Isaacs must have been irrelevant. Breach must depend also upon the proved relevance of the criteria and protocol relied upon by the respondent. Only if the respondent established those matters could what enquiries Mr Isaacs made, or what conclusions he reached, become relevant. In those connections his recollection would be pertinent; and again prejudice by reason of the effect of time on memory could be seen. But that says nothing about the respondent's claim resting upon untested and untestable oral evidence which he might give.

33 The liability of Southern Health to the respondent, as I have noted, is alleged to arise vicariously by reason of the defaults of the other applicants. The contention for that applicant that the judge mischaracterised the claim could be no better than the submission made for the other applicants. The respondent's claim against Southern Health would otherwise turn on the relationship between the Monash Medical Centre and the practitioner applicants. That relationship would no doubt be disclosed by documents passing between the Centre and the applicants. There was no evidence on the s.23A application that any such document had gone missing.

34 In the event, repeating what I said a little earlier, in my opinion the learned judge did not err in his characterisation of the applicant's case. Indeed, I consider that his characterisation was correct. I would add this. I think it likely, if the respondent was to establish his claim against any of the applicants, that it would be because of a disclosed and certain sequence of events the bare bones of which are as follows: the making of a diagnosis of transsexualism and the institution of female hormone treatment before specialist psychiatric evaluation; the continuation of such treatment despite a contradictory psychologist's report; further diagnosis of transsexualism in the face of the psychologist's report and in circumstances where the respondent continued on hormone treatment; the performance of initial surgery antecedent to the second psychologist's report; and performance of the second surgery shortly following the second psychological report. Of course there would be more to the respondent's case than just those matters; but each of them would almost certainly be demonstrable without any reliance on the respondent's oral evidence.

The Psychologist's Report of June 1987

35 Relevant to the exercise of discretion under s.23A(3) is, by paragraph (a), "the length and reasons for the delay on the part of the plaintiff." It was common ground[12] that the period of delay, taken up to the time of filing the summons seeking an order under s.23A, was 16 or 17 years.

36 The learned judge split that period, in effect, into three: first, the period up to June 1996[13]. Second, the period from June 1996 until commencement of the proceeding by writ filed 23 September 2003. Third, the period commencing 23 September 2003 and ending with the filing of the summons on 11 June 2004.

37 Concerning the first period his Honour was pressed for the applicants to conclude that the respondent had been fully aware, at the time of undergoing psychiatric assessment before the April 1988 surgery, that he had failed to match the profile required for gender re-assignment surgery. He had modified his responses at the second psychological test in order to ensure that the psychologist's opinion enabled him to undergo surgery. His perception in April 1988 could not have been only that the surgery had been a mistake for him. He knew that it had been conducted in the face of a psychological report which indicated that it should not have been performed. In other words, he knew both before and immediately after surgery in April 1988 the essence of the claim that he raised many years later.

38 The submission which I have just outlined was pertinent also to s.23A (3)(e), which raises another matter made relevant to the exercise of discretion: that is, whether the applicant acted promptly and reasonably when seized of relevant information. If the submission had been accepted, his Honour would have been considering a period which began at latest in April 1988 and which ended in June 2004; not a period which began in June 1996. Moreover, delay in the period between 1988 and June 1996 would have been unexplained.

39 The learned judge, however, did not accept the submission, which was founded on things said by the respondent in the course of the "Australian Story" program of 2 September 2003. His Honour acknowledged the circumstance that, on their face, the respondent's remarks did indicate the state of knowledge contended for by the applicants. But he concluded, the respondent having been thoroughly cross-examined about the matter, that whilst the respondent had been told that he would require psychological re-testing, he had not been told the full results of his pre-operation psychological tests. He concluded that what the respondent had told the television interviewer was, in effect, a compression of knowledge which he had acquired over the passage of years, expressed with hindsight.[14] He did so having read a transcript of the program, and having listened to a tape of the same. In expressing his conclusion the judge described the respondent as a "particularly honest witness."

40 The submission that his Honour's conclusion was wrong was summarised by counsel for Dr Kennedy this way:

• The text of the interview itself told against such conclusion.

• The respondent had not specifically averred, in his affidavit in support of the s. 23A application, that the substance of the psychologist's June 1987 report only became known to him in 1996, and so provided the explanation for him having taken no action until then.

• The respondent had averred a different explanation for delay until 1996 in paragraph 15 of his affidavit.

• Part of the history given by the respondent to Dr Rigby, the doctor's report being exhibited to the respondent's affidavit and its accuracy being therein attested, was consistent with the respondent having relevant knowledge before the April 1988 surgery.

41 Counsel met his Honour's very favourable reference to the respondent's presentation as a witness by referring to passages in the judgements in Fox v Percy.[15]

42 In my respectful opinion his Honour's conclusion was soundly based. He carefully noted and weighed up each of the competing considerations which were put to him. He did not fail to notice that the thrust of the attack was not that the respondent had not obtained a copy of the psychologist's report until 1996, but rather that he had known its substantial content before undergoing surgery.

43 Next, the learned judge heard the oral evidence of a person who on any view, as his Honour recognised, had been through a very difficult time over a period of many years. It is implicit in his Honour's finding about the quality of the respondent's evidence that he kept that circumstance clearly in mind. Having done so, he expressed himself favourably impressed by such evidence and by the respondent as a witness of truth. He was persuaded that the excerpt from the television interview did not convey the respondent's state of mind as at April 1988.

44 In my opinion his Honour was not constrained from so concluding. It was easy to see how a remark made with the advantage of hindsight might have compressed knowledge which had been acquired at different times. There was nothing intrinsically improbable in the respondent knowing in early 1988 that psychological re-testing was required, and yet not knowing that it was required because his profile had been assessed as being more masculine than the average. Indeed, on one view it might be accounted improbable that he would have consented to repeat testing had he been apprised of such assessment.

45 Again, putting the respondent's remarks in the television program to one side, the reasons urged upon the learned judge as to why he should reject the plaintiff's evidence were essentially forensic points the like of which are made every day, and which are sometimes accepted and sometimes not. In my opinion they had no great force.

46 I referred a moment ago to the matters advanced before the learned judge. They did not include the history which Dr Rigby had recorded. That history was not explored at all with the respondent; nor was it the subject of submission by counsel for any of the applicants. It was said by counsel for Dr Kennedy before this Court that the respondent had not been cross-examined with respect to the Rigby history as a forensic tactic: why cross-examine when there was an unqualified admission against interest? Failure to address his Honour upon the admission had been, to the contrary, an oversight.

47 Accepting the mixture of conscious decision-making and inadvertence which counsel described, the fact is that the judge was put to considering the respondent's evidence, and its apparent conflict with part of the content of the television program, without any exploration of what I have called the Rigby history. The course of events in the Court below, had that matter been ventilated, cannot be predicted. Notwithstanding this Court's role upon an appeal, I am not prepared to impugn a finding made below, dependent in part upon an evaluation of the truthfulness of a witness, in reliance upon such a matter.

48 I referred a moment ago to this Court's role on an appeal. That takes me to Fox v Percy. It pronounced no new principle. The matter had proceeded in the NSW Court of Appeal, and proceeded in the High Court, on the footing that the law was as stated in Jones v Hyde,[16] Abalos v Australian Postal Commission [17] and Devries v Australian National Railways Commission.[18] Gleeson CJ, Gummow and Kirby JJ said of those cases that they remained "the instruction of this Court to appellate decision-making throughout Australia."[19] The appellate function, statutorily conferred, must be exercised. In some cases appellate obligations would oblige the success of an appeal notwithstanding that factual findings had been founded on the credibility of a witness. That would be appropriate particularly where "incontrovertible facts or uncontested testimony ... demonstrate[d] that the trial judge's conclusions [were] erroneous", or where the decision at trial was "glaringly improbable" or "contrary to compelling inferences".[20]

49 It is true that in Fox v. Percy there was reference to the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.[21] Those observations must be borne in mind, of course, when considering a finding of fact based upon credibility. But in the end the question is whether, balancing appellate obligations and appellate restraint, and considering in that context instruction given by Hyde, Abalos and Devries, the finding by the learned judge that the respondent was a particularly honest witness, whose evidence could be relied upon in explanation of what he had said in the TV program, ought be discounted. In all the circumstances which I have described, I see no reason to do so.

Delay between 1996 and June 2004

50 The judge observed that no explanation had been offered for the period of delay commencing in September 2003 and ending in June 2004. The accuracy of that observation was not in dispute.

51 As to the period between June 1996 and September 2003 his Honour found that implicit in the material were a combination of features which explained the delay. Thus -

• The respondent's difficulty in obtaining a solicitor prepared to pursue the case on an appropriate costs basis.

• The respondent's ongoing psychological difficulties in coping with his "re-emergence as a man as and from 1996."

He found that in all the circumstances the respondent did act promptly and reasonably once he was aware of the facts which might be capable of giving rise to an action for damages.

52 The high water mark of the submissions advanced for the applicants was that there was no material to support any of the four circumstances which his Honour found provided reason for the delay. In my opinion that submission could not be accepted.

53 Complexity: It was contended that this was just another medical negligence case. There was unarguably a duty of care. The issue was breach. The judge had got it wrong when he characterised the surgery as pioneering.

54 In my opinion his Honour was right to describe the litigation as complex. Although the respondent's counsel had opened the matter as one in which solicitors had advised the respondent that he had a good case, and although it may not have been correct to describe the surgery as "pioneering", there were other circumstances which justified the judge's description of the litigation as complex. The claim was brought against three practitioners in respect of each of whom the breach alleged was different. The claim against the institution had a different basis again. The issue of breach in part would depend upon expert opinion about the application of diagnostic criteria and a particular international protocol in times well past. Further, and running contrary to the way in which his counsel had opened the matter, the respondent gave evidence that he had been told by a solicitor employed by the firm which he had retained between 1996 and 2000 that -

"She'd been researching and there was no precedent anywhere in the world. She thought I had a good case but it was a matter of trying to find a precedent, and also because it's just such a very small community of doctors and with all that to deal with as well. She just said that it would be difficult."[22]

That solicitor also told the respondent, as he claimed, that his claim had "been in the too hard basket."[23]

55 Limited means: This litigation must surely have involved great expense. Leaving aside any particular expense made necessary by the nature of the claim - for instance, a possible need to obtain specialist opinion from interstate or overseas - litigation against three specialist medical practitioners and a medical institution in the County Court could not but be very expensive. The respondent gave evidence that he had been in regular employment until 1997; and that thereafter he had made a few attempts to work.[24] He also gave evidence that he "... didn't have the capacity to fund litigation ... not to this degree."[25]

56 Dr Rigby expressed the opinion, in his report exhibited to the respondent's affidavit, that the respondent had been and continued unable to work by reason of his psychiatric condition.[26] That opinion supported a conclusion that the respondent had been and would be incapable of funding the litigation.

57 The applicants sought to make something of the respondent's failure to depose in his affidavit that he had limited financial resources and to outline his employment history. But the judge, in my respectful opinion, was right to conclude in all the circumstances that the respondent was of limited means. I should add that, even though the respondent was shown by the evidence to have been in full-time employment up until 1997, it would be very doubtful that his earnings in that period could have funded litigation such as this.

58 Difficulty in obtaining a solicitor on appropriate terms: There was evidence that the respondent retained three different firms of solicitors in the period late 1996 to September 2003. The first two firms particularly, it is a matter of common knowledge, were (and are) very experienced in personal injuries litigation. It is the fact that none of the three firms commenced a proceeding on the respondent's behalf. The respondent was twice advised that the proposed litigation was unlikely to succeed. The first firm of solicitors had the respondent's instructions, it seems, for more than three years. The second had instructions for about a year. The third, which the respondent engaged in a roundabout way after seeking help from the Law Institute, held instructions for more than a year. In each instance the solicitor undertook to act on some version of what can be called, colloquially, a "no win no fee" basis. It was well open to his Honour to conclude that this circumstance hindered the respondent's ability simply to give instructions that a proceeding be commenced. The differences which were shown to have arisen between the respondent and his various solicitors were apt to emphasize the respondent's inability to direct the course of events.

59 The respondent's ongoing psychological difficulties: Counsel for Dr Kennedy submitted that the respondent's affidavit did not identify any psychological difficulties as a reason for him being unable to pursue his claim. That is literally so, although the respondent did exhibit Dr Rigby's report. But the learned judge did not say that the respondent had averred such an explanation. Rather he found that it was one of a number of circumstances which implicitly explained the delay.

60 In my opinion such a conclusion was well open. The judge reviewed at length the respondent's troubled life history. He also had before him Dr Rigby's report. It was to the effect that the respondent's psychiatric condition had been very bad at the time of the first consultation in September 1997. The immediate crisis had been stabilized. That had been followed by continuing psychotherapy. There had also been some restorative surgery. One particular attempt by the respondent to resume work had failed - there being a major relapse in his depression.

61 In addition to that sequence of events, Dr Rigby's report specifically touched upon the respondent's ability to initiate and conduct litigation. Speaking of a period not identified with specificity, the doctor said this:

"During this time, there was an awareness that he could, and felt he should, take action against those who had assessed him and authorised and performed the operation. However, Mr Finch was in no fit state to master such an undertaking, and had no one to undertake it for him. His levels of depression, while fluctuating, were such as to make it impossible for him to cope with compiling a full account of the operation and its preparation, follow up and results, or to undertake the substantial organisational activity required to take legal action."[27]

It is reasonable to think that the learned judge had those aspects of Dr Rigby's report in mind when he drew the inference now under discussion.

Conclusion that the four circumstances explained the delay between 1996 and 2003

62 In my opinion it was well open to his Honour to infer that the four circumstances which he identified explained the delay between 1996 and 2003. It is the inference which I would draw. The respondent, having come to the view that he had been done a wrong by the doctors whom he had consulted in the period 1986-88, engaged a succession of experienced personal injury solicitors. None of them commenced a proceeding on his behalf. He could not afford to engage solicitors who would act on his instructions unconditionally. Throughout the period he was a young man in receipt of psychotherapy for one or more psychiatric disorders of varying - sometimes severe - intensity. His disability was such as to prevent him working on a regular basis for a prolonged period. He did have difficulties with the firms of solicitors which he engaged. Such difficulties were likely due to a combination of the fact that the solicitors would not accept his instructions unconditionally and his own fragile psychiatric condition.

63 This should be added_:_ there was, perhaps, some argument that the period of delay after October 2001 - or perhaps December 2001 - was particularly relevant because the respondent had then been told[28] something about the Limitation Act; and that such circumstance should have been addressed by the judge. If that argument was put, I think there was nothing to it. The problem was, as the judge rightly concluded, that the respondent could not get a solicitor to initiate his action; and that despite repeated attempts.

Insufficient weight? The generality and Dr Bower's death.

64 Counsel for the applicants submitted that the judge gave insufficient weight to the prejudice which their clients would experience in defending the claim by reason of the acknowledged delay of 16 or 17 years. They sought to explain where his Honour had gone wrong by calling in aid -

• The contention that his Honour had acted upon a wrong principle.

• The submission that his Honour had mischaracterized the gist of the respondent's claim.

• The submission that the respondent had been aware in 1988 of all relevant facts pertinent to him having a cause of action, yet had done nothing - and offered no explanation - in the period until 1996; and then, for no good reason, had done nothing until 2003 despite being told that he had a good cause of action.

• The circumstance, a propos Southern Health, that the claim in vicarious liability was based in part upon the acts and/or omissions of Dr Bower.

• His Honour's alleged failure to apprehend the significance of the death of Dr Bower. It was, counsel for Dr Walker and Mr Isaacs submitted, difficult to conceive how an application under s.23A could succeed where prejudice arising from the death of a potential witness was identified, whatever weight might be given to other relevant factors.[29] His Honour had been wrong to conclude that the original notes would be admissible under ss.55(1)(b),(5) of the Evidence Act 1958.

• The fact that there had been unexplained delay between September 2003 and June 2004 in commencing the s.23A application.

65 Of course, counsel for the applicants also argued that, without more, the prejudicial impact of delay for a 16 or 17 year period told against grant of an extension of time. The fact that an extension had been granted showed that there must have been fault in the exercise of the discretion. So approached, the submission, though addressed to weight, was really a particular of the contention that to grant an extension was plainly unjust or unreasonable.

66 I have dealt already with the first four of the six particular issues which I itemized a moment ago; and have done so unfavourably for the applicants. That weakens but does not destroy the argument that his Honour attached insufficient weight to prejudice. I go to arguments founded upon Dr Bower's death.

67 The gist of counsel's submissions was that Dr Bower had consulted with the respondent, as his defence admitted, on five occasions between 30 June 1987 and 19 January 1988. That period overlapped the period of the respondent's admitted consultations with Dr Kennedy; and post-dated the respondent's alleged consultation with Dr Walters. Dr Bower's death had deprived the other applicants, including the surgeon, Mr Isaacs, and the Monash Medical Centre, of the advantage of the opinion of a second specialist psychiatrist who had diagnosed the respondent to be a transsexual. Whatever Dr Bower's notes might say, they would be an inferior substitute for oral evidence. In any event, the notes would not show the doctor's reasoning process. Further, they might never get into evidence. They might be rejected in the exercise of discretion.

68 It may well be that the other respondents would be disadvantaged at trial by the inability of Dr Bower to give viva voce evidence. I say "may well be" because the course of oral evidence can never be predicted with certainty. That is enough for the purposes of s.23A(3)(b).[30] I accept that the doctor's notes, concerning the details of which there was no material before the judge, could not match favourable oral evidence given before a jury. The judge plainly accepted that this was so,[31] yet was persuaded that this consideration did not oblige failure of the s.23A application by reason of prejudice to the applicants.

69 In my respectful opinion his Honour was correct in reaching the conclusion just. That is so for a number of reasons.

70 First, the central question upon a s.23A application is whether the applicant has persuaded the Court that it is "just and reasonable" to extend time, that a fair trial is possible. The answer to that question will be informed by considering the impact of delay in causing actual or potential prejudice to the defence of the intended action; for the rationale of limitation provisions described by McHugh, J. in Brisbane South remains applicable in the context of the Limitation Act. That is the consequence of what was said by Winneke, P.(with whose reasons, relevantly, Charles, J.A. specifically agreed) and by Eames, J.A. in McGuiness.[32] Even so, s.23A(3) requires the Court in exercising its discretion to have regard to all the circumstances of the case, including the six circumstances enumerated in paras (a)-(f) of that sub-section.[33] Prejudice, actual or potential, is one of those circumstances.

71 Second, it cannot be correct to say that the death or unavailability of a material witness will inevitably give rise to irremediable and decisive prejudice. It must all depend upon the circumstances. Tsiadis could no more stand as decisive one way than could McGuiness the other. The circumstances which arose in those two cases readily explain the different outcomes.

72 Third, there was really no argument in this Court to suggest that Dr Bower's notes would not be admissible - subject to a contrary exercise of discretion - under a provision of the Evidence Act. I think it plain that they would meet the criteria of s.55(1) of that Act, and would be admissible by operation of sub-s.(5) subject to the discretion to exclude which exists under sub-s.(9). Sub-section (4) would be irrelevant, on the respondent's account, at least as regards notes of consultations in 1987 and 1988.

73 Fourth, before this Court counsel for the applicants submitted, as I have said, that the notes might be excluded at trial in the discretion of the trial judge; and that his Honour had not taken that possibility into account. His Honour did not do so. Unsurprisingly. What counsel for Dr Kennedy submitted in the Court below[34] was that the content of any notes or report made by Dr Bower then extant was unknown; and that such notes or reports as existed would not be admissible by reason of s.55(4) of the Evidence Act so long as Dr Bower remained a defendant.[35] The response of counsel for the respondent was to note that affidavits of documents which were on the Court file disclosed the existence of medical records; and - though in somewhat confused form - to contend that the submission for Dr Kennedy founded on s.55(4) was not sound.[36]

74 I would not conclude, in light of the course of events which I have just described, that his Honour's discretion miscarried. It would be quite unsatisfactory to decide that the discretion miscarried by reason of a matter that was not advanced for his Honour's consideration. It is unnecessary to conclude, although I certainly consider it to be the case, that the prospect that any notes or reports made by Dr Bower would be excluded at trial in the exercise of the s.55(9) discretion would be negligible.

75 I turn to the delay in initiating the s.23A application between September 2003 and June 2004. It was unexplained. It was not negligible in itself. It added nine months to the time elapse between the initial events and prospective trial. On the other hand, the applicants knew that they were at risk of trial from the time of service of the writ; and sensibly it should be supposed that they gave instructions, specifically concerning their recollection of events, in that period of months.

76 The judge referred in his reasons both to the overall period of delay that must be considered, and to the lack of explanation for delay in the period September 2003 to June 2004.[37] He found that the respondent's delay, for the purposes of s.23A(3)(e) was from mid 1996 to June 2004.[38] On a literal reading of his reasons he found that the entire period of such delay was reasonable, being explained by the four circumstances to which I earlier referred. But in light of his observation that no explanation had been offered in respect of the period September 2003 to June 2004, and the evident inapplicability of the four factors to that period of delay, I do not read his Honour's reasons as involving such an explanation. Rather, I think that his Honour should be understood to have concluded that the particular delay was unexplained; but that the respondent had satisfied him that such delay did not significantly add to actual or potential prejudice to the applicants. Such a conclusion, in my opinion, was well open.

A decision plainly unjust or unreasonable?

77 In my opinion, for reasons stated, the applicants have not demonstrated that the decision sought to appealed from was affected by specific error. There remains the submission that the decision was plainly unjust or unreasonable. Within that submission lies, inter alia, the contention that the judge must have accorded insufficient weight to the prejudicial effect of delay.

78 The question whether a decision was plainly unjust or unreasonable does not admit of a great deal of argument. In the present case, the period of delay was extensive. A defendant,[39] and thus a potential witness, had died. Prejudice, potential or actual, was disclosed; but not prejudice to the extent for which the applicants contended. There were weighty considerations, which his Honour carefully analysed, tending in favour of grant of an extension. I have mentioned a number of them in these reasons. No doubt his Honour's findings were attacked just because they provided an explanation why he was satisfied that the respondent had discharged the onus cast upon him. Those attacks were not made out. In the event, I am not at all persuaded that the decision appealed from should be described as plainly unjust or unreasonable.

What orders should be made?

79 The order granting the respondent's s.23A application was plainly interlocutory. Hence the applications for leave to appeal. Applications such as these will succeed where the order below was attended with sufficient doubt to warrant its being reconsidered on appeal and where substantial injustice would be caused if it was allowed to stand. Generally speaking, in the event that such an application is refused, the practice of this Court is to give only brief general reasons for such refusal; although that is not universally the case.[40]

80 In this matter, exhaustive consideration of the many submissions raised by the appellants has not satisfied me that the order the subject of the applications was attended by sufficient doubt to warrant its being reconsidered on appeal. Acknowledging that the length of these reasons departs from usual practice, and an argument that they might be said to show that the order below must have been attended by doubt of relevant extent, I would nonetheless refuse the applications.

[1] It is convenient to name them in the order in which they are named by the plaintiff in his writ dated 23 September 2003.

[2] As emerging mainly from the statement of claim but also in part from the report of Dr Byron Rigby, Exhibit AF3 to the respondent's affidavit sworn 9 August 2004.

[3] So did Dr Bower.

[4] And, if leave was granted, then appeals.

[5] [1936] HCA 40; (1936) 55 C.L.R. 499 at 505.

[6] [1950] HCA 52; (1950) 81 C.L.R. 513 at 519 per Latham, C.J. and at 532-3 per Kitto, J.

[7] [1953] HCA 25; (1953) 94 C.L.R. 621 at 627.

[8] His Honour's Reasons ("the Primary Reasons") at [53].

[9] The Primary Reasons at [53].

[10] [1996] HCA 25; (1996) 186 CLR 541 at 551; see [47] - [48] in the Primary Reasons.

[11] Exhibit AF2 to the respondent's affidavit.

[12] See the Primary Reasons at [3].

[13] See the Primary Reasons at [45]. Compare the respondent's evidence noted at [20], which referred to August rather than June 1996.

[14] See the Primary Reasons at [25] - [28].

[15] [2003] HCA 22; (2003) 214 CLR 118.

[16] [1989] HCA 20; (1989) 63 ALJR 349 at 351-352.

[17] [1990] HCA 47; (1990) 171 CLR 167 at 179.

[18] (1993) 177 CLR 472 at 479, 482-483.

[19] At [27].

[20] At [29].

[21] See at [30]-[31] per Gleeson CJ, Gummow and Kirby, JJ.; See also at [138] per Callinan J., citing Deane and Dawson, JJ. in Devries at 479. Callinan J also expressed concern that authorities which culminated in Devries were too restrictive of the appellate function_._ See at [138]-[139], [143]-and [145] - [148].

[22] T.29.

[23] T.29.

[24] T.37.

[25] T.52.

[26] See , for instance, exhibit PI3 at pp.10-12, 45.

[27] Exhibit AF3 to the respondent's affidavit, p.12.

[28] By letters of his solicitors dated 16 October 2001 and 11 February 2001, exhibits K2 and K3 on the s.23A application.

[29] Citing Clarke v. McGuinness [2005] VSCA 108 at [87]. Counsel for Dr Kennedy cited, in this connection, the judgment of McHugh, J. in Brisbane South at 551.

[30] Tsiadis v. Patterson [2001] VSCA 138; [2001] 4 V.R. 114 at [23].

[31] Primary Reasons at [50].

[32] McGuinness at [64], [65] per Winneke, P., at [80] per Charles, J.A. and at [84]-[87] per Eames, J.A.

[33] Tsiadis at [5] per Callaway, J.A. and [30], [31] and [33] per Buchanan, J.A.

[34] He advanced the broad substance of the submissions made for all the present applicants.

[35] See T64-66.

[36] See T.105-106, T.109-110.

[37] Primary Reasons at [3], [44].

[38] Primary Reasons at [45].

[39] I speak of the position at the outset of the proceeding.

[40] Rose and ors v New South Wales Native Title Services Ltd and anor [2005] VSCA 157 is a recent case where extensive reasons were given.