Binetter v Binetter

1. [1]

   WHITE JA: I agree with Basten AJA.

2. [2]

   MITCHELMORE JA: I agree with Basten AJA.

3. [3]

   BASTEN AJA: On 28 May 2018, the late Ida Wolff commenced proceedings against her nephew, Ronald Binetter, to recover a loan of $1,000,000. The proceedings were commenced in her name by her then tutor, Suzanne Binetter. On 4 September 2018, Mrs Wolff died and the proceedings were continued on behalf of her estate by Steven Binetter, the appellant, as an executor of her estate.

4. [4]

   The case for the estate was that, on or about 20 September 2010, Mrs Wolff had given Ronald Binetter a cheque for $1,000,000 as a loan repayable on demand. However, no demand was made for repayment until 27 April 2018. The defence denied the making of the loan and receipt of the money. It further alleged that recovery was statute-barred pursuant to ss 14 and 63 of the Limitation Act 1969 (NSW), the amount having been paid more than six years prior to the demand for repayment and the commencement of the proceedings. The plaintiff filed a reply asserting that Mrs Wolff was under a disability for a period of years prior to the commencement of the proceedings and that the running of the limitation period was suspended for the duration of her disability, pursuant to s 52(1)(d) of the Limitation Act. There was no dispute that Mrs Wolff suffered from a number of ailments in her later years, prior to her death at an age of 98 (or possibly 104) years, but there was a live issue as to whether they were sufficiently disabling to suspend the limitation period.

5. [5]

   The trial judge, Beech-Jones J, held that there had been a loan made by Mrs Wolff to Ronald Binetter, but that her undoubted infirmities did not constitute a relevant disability sufficient to suspend the running of the limitation period before it had expired. Accordingly, the proceedings brought by the plaintiff were dismissed. [1] Steven Binetter, as the legal representative of the estate, filed a notice of appeal.

6. [6]

   The only issue raised on the appeal was whether the judge had erred in rejecting the claim that Mrs Wolff had been under a disability during the relevant period so as to suspend the running of the limitation period. Although there was no issue raised with respect to the trial judge’s statement of the relevant legal principles, it will be convenient to set those out briefly before considering the factual issues.

7. [7]

   The substance of the appeal concerned factual findings made by the trial judge. These turned on three categories of evidence which may be broadly identified in the following terms:

   1. (1)

      contemporaneous evidence of Suzanne Binetter, a trusted member of the family, who spent significant time with Mrs Wolff during the decade prior to her death;

   2. (2)

      medical and hospital reports available in respect of her treatment for various ailments in the same period prior to her death; and

   3. (3)

      a report by a rehabilitation physician, Dr Luba Eikens, prepared for the purposes of the proceedings.

8. [8]

   For the reasons set out below, no error was demonstrated in the findings of the trial judge and the appeal must be dismissed with costs.

Legal principles

1. [9]

   No issue arises from the proposition that the limitation period would have been suspended for the duration of the period during which Mrs Wolff was “under a disability”. The critical provision, appearing with definitions in s 11 of the Limitation Act, reads as follows:

2. [10]

   The factor identified in subpar (i) was relied on. Relevantly, there are three elements to that limb of the definition of being “under a disability” which are material. First, there must be a disease or impairment of the person’s physical or mental condition. Mrs Wolff undoubtedly suffered from impairments affecting both her physical and mental conditions. However, the focus was on her mental condition.

3. [11]

   Secondly, such an impairment had to operate for a continuous period of at least 28 days to render her incapable of, or substantially impeded her in, the management of her affairs. There was clearly evidence that from time to time Mrs Wolff was confused and delusional. On more than one occasion she was admitted to hospital. However, unless the period of incapacity or the hospital stay continued for the minimum period, it was not to be measured as part of a period of suspension of the limitation period.

4. [12]

   Thirdly, and importantly for present purposes, it was not sufficient that any period of incapacity or substantial impediment related to her ability to look after herself, or to manage her affairs generally. Rather, the incapacity or substantial impediment had to relate to the management of her affairs “in relation to” the cause of action “in respect of” the limitation period.

5. [13]

   As explained by Campbell JA in Guthrie v Spence, [2] the grammatical structure of par (b) is awkward, but its meaning is tolerably clear:

6. [14]

   On that reading there are two limitations on the question as to the ability to manage one’s affairs, namely those identified by the two connecting phrases. Importantly, the focus is not on running proceedings from beginning to end, but on their commencement. That is not to say that the nature of the proceedings should be artificially confined by identifying the decision as being to commence or not. On the other hand, the reasoning of Campbell JA reflects a purposive approach to construing the provision, which was not challenged.

7. [15]

   The trial judge set out a further passage from Guthrie: [3]

8. [16]

   This appears to have led the appellant to submit that Mrs Wolff had to be capable of reasoning “normally about matters relevant to the cause of action”, including in relation to all the steps which might arise in the course of a proceeding, a list of eight steps being catalogued. [4] However, that is not the test required by s 11(3)(b). In Guthrie at [140] Campbell JA was dealing with the phrase “management of his or her affairs”; but it would be wrong to take that phrase out of its context, something that Campbell JA did not do. He immediately noted a critical contextual limitation:

9. [17]

   The conclusions set out at [159]-[160] were directed to the provision read as a whole, not to individual phrases. They should be applied.

10. [18]

    In relation to the term “mental condition”, it is commonplace to adopt a passage from the reasoning of Slattery J in Kotulski v Attard, [5] to the following effect:

11. [19]

    There is a danger in ignoring context. In Guthrie, Campbell JA explored the wide range of statutory and rule-based provisions dealing with disability and incapacity in relation to legal affairs, involving differing language and different shades of meaning, concluding:

12. [20]

    While the statement in Kotulski may be helpful in some cases, in State of New South Wales v Harlum, [7] I expressed a note of caution in relation to its general application:

13. [21]

    In the present case, the task facing the trial judge was to determine whether he was satisfied that, for a sufficient period before the limitation period expired in September 2016, Mrs Wolff was at least substantially impeded in making a decision to commence proceedings against her nephew Ronald Binetter. The judge correctly addressed that issue.

Family background

1. [22]

   Her death certificate recorded that that Mrs Wolff was born in 1920, in Czechoslovakia. (A referral letter in 1995, from Dr Sylvia Terkasher, her general practitioner, indicated that she believed Ida Wolff had been born in 1913.) In any event, she and her sister, Margaret Binetter, were the only two of their family to survive the Holocaust. Both came to Australia after the war. She had married Dr Arthur Wolff, who died in 1994, in Hungary after the war. Margaret’s husband, Erwin Binetter, died in 2009. Mrs Wolff had no children, but her sister had four sons, Michael, Ronald, Peter and Andrew Binetter.

2. [23]

   Suzanne Binetter was married to Michael. In the period from 2010 to 2018, each year she spent some 10 or 11 months in Australia and one to two months overseas. While she was in Australia she visited Mrs Wolff every two or three days. Mrs Wolff was living at home in an apartment but had round-the-clock carers. Suzanne Binetter took her to appointments with doctors and took her out of the apartment for walks and shopping trips. In December 2011, Mrs Wolff appointed Margaret and Suzanne as her attorneys under an enduring power. At the same time, her sister was appointed her enduring guardian. By that stage, Mrs Wolff was functionally blind.

3. [24]

   On 29 April 2014, Mrs Wolff signed an authority for Suzanne Binetter to act on her behalf with the two banks with which she had accounts. The authority stated that Suzanne Binetter had been assisting her “in an increasing capacity for many years” since the death of her husband in 1994. Suzanne Binetter was present at a family dinner in September 2010 when Ronald Binetter asked Mrs Wolff for a loan of $1,000,000. Mrs Wolff arranged for Suzanne Binetter to transfer that amount from one bank account to another so that she could write a cheque in favour of her nephew Ronald.

4. [25]

   Suzanne Binetter affirmed four affidavits in the proceedings and was cross-examined. She was undoubtedly an important witness as she was able to give detailed evidence, as a lay person, concerning Mrs Wolff’s condition throughout the relevant period. (Suzanne Binetter referred to herself in the course of her evidence as a retired dentist. It seems she was retired at least during the period from 2012.)

5. [26]

   The only other person in a position to give such evidence was Margaret, but she, as Ronald Binetter’s mother, had an insoluble conflict in relation to the litigation and withdrew as her sister’s attorney with respect to any aspect of her sister’s claim against her son. She did not give evidence.

6. [27]

   There was no complaint on the appeal with respect to the manner in which the trial judge dealt with Suzanne Binetter’s evidence, with one qualification addressed below. It is convenient to deal with her evidence by setting out the judge’s findings. [9] Those findings commenced in the first part of the judgment, dealing with the loan. They were relevant to the subsequent deterioration of Mrs Wolff’s health and the extent to which it affected her ability to consider and make decisions with respect to any claim she may have had against Ronald Binetter for repayment of the money. In this regard, the judge recounted:

7. [28]

   Suzanne Binetter gave evidence that she did not know, as at April 2014, whether the loan to Ronald had been repaid. The judge expressed some doubt as to whether he could accept that evidence and further whether, given its improbability, he accepted other evidence of Suzanne Binetter. For present purposes, that reservation was not important. The judge concluded this section of the reasons with the following passage:

8. [29]

   On 12 March 2018, Ronald Binetter lodged an application with NCAT seeking an order for the appointment of the Public Guardian to manage Mrs Wolff’s affairs. He relied in part on allegations of impropriety by Michael Binetter, Suzanne’s husband, as a company director and to the fact that Michael Binetter was living overseas. He said that Suzanne spent “most of her time” with her husband. When proceedings were commenced, Suzanne Binetter was overseas, but returned immediately to Australia.

9. [30]

   The judge’s summary of events continued:

10. [31]

    The trial judge returned to Suzanne Binetter’s evidence when considering Mrs Wolff’s disabilities. This was summarised in the following passages:

11. [32]

    The judge not only accepted this evidence, but placed significant weight upon it. The judge observed that the estate had placed reliance on the role of Suzanne Binetter in looking after Mrs Wolff’s financial and personal affairs and on her evidence as to Mrs Wolff’s disabilities. Finally, the judge returned to Suzanne Binetter’s evidence in a passage which was challenged by the appellant and should be set out in full:

12. [33]

    It will be convenient to return to this passage after addressing the other evidence relied upon by the trial judge.

Reports of treating doctors

1. [34]

   In this Court, the appellant’s case was that “Mrs Wolff had severe cognitive impairment from 2016, and such conclusion is sufficient to establish that she was a disabled person”. [10] By that, the appellant meant that she was under a disability from no later than May 2016, a few months before the expiration of the limitation period on 20 September 2016. More aggressively, the amended notice of appeal suggested that Mrs Wolff was under a disability “from October 2014 onwards, or alternatively, from May 2016 onwards, or alternatively, from June 2016 onwards”: ground 4A.

2. [35]

   Dr Eikens, who reviewed the extensive medical records relating to Mrs Wolff, provided a summary which included the following propositions: [11]

3. [36]

   In one sense, it would not be fruitful to repeat an analysis of the contemporaneous medical records to establish from time to time the degree of disability under which Mrs Wolff laboured. If the analysis differed from Dr Eikens’ assessment, it would be a view based on the same medical records without Dr Eikens’ experience and expertise. Further, such an analysis would suffer from the same limitation which affected Dr Eikens’ opinions, namely that she had never treated, or even met, Mrs Wolff.

4. [37]

   However, the trial judge had the benefit of contemporaneous evidence (of the kind summarised above) as to the activities Mrs Wolff was in fact able to perform from time to time and the assessment of her capacities by those caring for her. For example, the fact that in April 2018 Suzanne Binetter, who knew her best of all the lay witnesses, thought it appropriate to obtain her instructions in relation to the guardianship application and the possibility of recovering the loan from Ronald Binetter, gives rise to an inference that she at least thought Mrs Wolff was capable of giving rational instructions in relation to such matters.

5. [38]

   Further, the medical records did not provide a uniform picture of the expert assessments of Mrs Wolff’s conditions. That may in part have been a function of the fact that her condition was variable and different practitioners saw her at different times and in different circumstances. While it is apparent, and was no doubt predictable, that her level of cognition would deteriorate with time, the evidence did not demonstrate a measurable or regular rate of deterioration.

6. [39]

   Accordingly, it is desirable to set out briefly the key points of the medical record.

7. [40]

   On 14 May 2012, Mrs Wolff’s general practitioner, Dr Terkasher referred Mrs Wolff to Dr Tuly Rosenfeld, a consultant geriatrician and physician, for assessment of visual hallucinations. Having seen Mrs Wolff, accompanied by Suzanne Binetter, on 8 August 2012, Dr Rosenfeld reported that, whilst Mrs Wolff “was able to give a reasonable account of the history [of her condition]”, Suzanne helped considerably. Dr Rosenfeld continued:

8. [41]

   Dr Rosenfeld referred to a history of transient ischaemic attacks and noted that there had been a cerebral CT scan in May 2012. He stated that this scan showed “a significant atrophy and white matter disease”. There was also “hypodensity within the left occipital lobe region”. Dr Rosenfeld noted that they had “discussed at some length the nature and effect of the hallucinations or rather the aberrant visual symptoms”. No specific treatment was recommended at that time.

9. [42]

   Understandably, this report was not relied upon as demonstrating a relevant level of disability in relation to legal affairs, but it demonstrates the existence of particular conditions (including white matter hypodensity) which were relied upon later as suggesting a level of disability.

10. [43]

    Mrs Wolff had seen her general practitioner, Dr Terkasher, on innumerable occasions between June 1990 and August 2018. Over the last decade, Mrs Wolff made at least monthly visits to her general practitioner. However, as Dr Eikens recorded in her report of 15 July 2020:

11. [44]

    Mrs Wolff was admitted to St Vincent’s Hospital for four days in October 2014 in relation to apparent transient ischaemic attacks. On 21 May 2014, Dr Dennis Kuchar, a consultant cardiologist associated with St Vincent’s, provided a report to Dr Terkasher. The report noted amongst other things visual hallucinations, but made no clear diagnosis. She was described as having “stable cardiac function”.

12. [45]

    Mrs Wolff was admitted to St Vincent’s Hospital following a fall, for five days in May 2015. The Hospital discharge summary dated 25 May 2015 noted “[t]he brain is essentially unchanged since 11/10/2014”.

13. [46]

    On 30 May 2016, Dr Terkasher issued a request for consultation to the “Geriatric Flying Squad” in relation to Mrs Wolff, identifying numerous reasons for referral including dementia and “very confused”. The past history noted in the referral included, against the date 29 January 2005, “vascular dementia” and “depression”. The Court was not taken to any documentation in relation to the diagnosis of vascular dementia in 2005, nor as to the circumstances of the diagnosis. Nothing more can be made of the entry in the general practitioner’s record, other than to note the caution with which such records should be treated.

14. [47]

    On 15 June 2016, Dr Tim Foley, working with the psychogeriatric mental health service at St Vincent’s Hospital, reported to Dr Terkasher, noting:

15. [48]

    The MoCA-Blind test refers to the Montreal Cognitive Assessment test administered by voice for persons with visual impairment. The significance of the score was a matter for interpretation and will be discussed in dealing with Dr Eikens’ evidence. The visual hallucinations were said by Dr Foley to be “in keeping with Charles Bonnet Syndrome AKA visual release hallucinations”.

16. [49]

    On 7 June 2016, Catherine Friel (a clinical nurse specialist at the psychogeriatric mental health service) described Mrs Wolff as having “mild vascular dementia”, though the notation may merely have been repeating Dr Terkasher’s history. The same diagnosis appears in a note created on 8 August 2016 by Dr Yu-Tang Shen, a psychogeriatric registrar.

17. [50]

    On 5 September 2016, Dr Terkasher referred Mrs Wolff to Dr Peter Gonski, a geriatrician, who visited Mrs Wolff at home the following day. He reported to Dr Terkasher in the following terms:

18. [51]

    There were no further contemporaneous medical reports prior to 20 September 2016. However, Dr Gonski saw Mrs Wolff at home for a second consultation on 17 May 2017. He reported that “[c]ognitively she is much the same”. He thought she had peripheral neuropathy secondary to diabetes.

19. [52]

    There was no further significant report from any geriatrician or neurologist before May 2018. It will be recalled that the statement of claim was issued on 28 May 2018, some 20 months after the expiration of the limitation period.

20. [53]

    If this were the total of the evidence capable of demonstrating disability, it would be unremarkable that the trial judge was not satisfied that any relevant disability had been established prior to 20 September 2016. The next question is whether that conclusion should be reconsidered in the light of Dr Eikens’ report and evidence.

Geriatrician’s report

1. [54]

   Dr Eikens was a rehabilitation physician. Her summary of the medical documentation has been set out above. Her final conclusion read as follows:

2. [55]

   Dr Eikens had been invited to identify whether Mrs Wolff suffered from physical or mental difficulties or impairments, if so when, and to “describe whether these physical or mental impairments would have substantially impeded Ms Wolff’s ability to manage or control her own affairs”. No doubt the solicitor appreciated that those questions did not directly address the test of being “under a disability” for the purposes of the Limitation Act, and added a further question, namely to identify the times between 2010 and 2016 in which Mrs Wolff “would not have been able to:

3. [56]

   Dr Eikens’ conclusions set out above referred to a hindered understanding of “complex legal issues” from late 2014 into early 2015, and then, from 5 May 2016, “severe impairment in her ability to manage and/or control her own affairs”. As the trial judge noted, that conclusion did not address with specificity Mrs Wolff’s capacity to give instructions in relation to the commencement of proceedings. [12] Nor did the judge consider that the legal issues involved in the case were “complex”. There were no doubt difficulties in asking a rehabilitation physician to address such questions, but that consideration suggests that the focus of the appeal must be on the evaluative exercise undertaken by the trial judge based on all of the evidence. Dr Eikens’ opinions were no doubt an important part of that exercise, but they were, nevertheless, only one part. The implication in ground 3 of the appeal that Dr Eikens’ conclusions answered the question posed by s 11(3) was not sound.

4. [57]

   Dr Eikens provided a second report on 1 August 2020, three weeks before the commencement of the trial. The letter of instruction, which appeared not to be in the material before this Court, sought a further response to the matters raised in the earlier letter after considering documents produced by Dr Rosenfeld. Dr Eikens noted the matters set out in Dr Rosenfeld’s report, including a Mini Mental Status Examination (MMSE) conducted on 7 August 2012. She noted that not all items on the test were administered because of Mrs Wolff’s visual impairment. Thus, out of a possible score of 30, she “achieved a score of 15/24, she was disoriented in time, had mild-moderate impairment of memory and calculation.” Acknowledging that the MMSE is a screening test and “not a comprehensive assessment of cognitive dysfunction”, Dr Eikens said that the score “suggests that in 2012 Ms Wolff had mild-moderate dementia”. She further noted that the score was consistent with that obtained by Dr Jankelowitz on 3 February 2015 of 18/25. Dr Eikens noted that by 15 June 2016 Mrs Wolff had achieved a score of 6/17 on the Montreal Cognitive Assessment–Blind Scale, a score “consistent with severe cognitive impairment”. Dr Eikens opined that that test “may be” more accurate than the MMSE for people with severe visual impairment. She continued:

5. [58]

   Apart from the last sentence, which was speculative, Dr Eikens stated:

6. [59]

   In other respects she confirmed her earlier opinions. The effect of the supplementary report was to take the timing of significant cognitive impairment back to the date of Dr Rosenfeld’s examination.

7. [60]

   There was an issue as to what matters were appropriately given weight for the purpose of Dr Eikens’ opinions. Dr Eikens stated in her first report that “[t]he most definitive evidence of cognitive impairment from 2014 would be neuroimaging documentation of cerebral infarcts in the left parietal and right occipital lobe, as well as widespread chronic microvascular ischaemic changes”. She continued:

8. [61]

   Dr Eikens attached to her first report four medical papers, two of which dealt with and supported the last observations set out above. A second dealt with associations between visual impairment and cognitive functioning, and the third dealt with mental state evaluation scales. The third paper [14] concluded that there was a correlation between a diminution in visual acuity and cognitive impairment. The study supported the theory that a decline in visual acuity led to a decline in cognitive ability.

9. [62]

   The fourth paper, which received greater attention in the course of the hearing of the appeal, addressed the use of mental status scales to evaluate cognition. [15] The paper suggested that caution must be applied in using such tests beyond their intended purposes. The author stated that “screening mental status scale scores, irrespective of the length of the assessment, represent only a portion of the necessary workup for cognitive impairment or dementia, and should be interpreted in the context of other clinical information when rendering such diagnoses”. The author further noted:

10. [63]

    The paper further stated that changes in those scales “are less sensitive in detecting longitudinal decline in cognition than formal neuropsychological testing”.

11. [64]

    Three particular qualifications were relevant in relation to Mrs Wolff. First, there was a correlation between levels of formal education and testing in one’s native language. There was no record of Mrs Wolff’s formal education, but it is known that she often preferred Hungarian to English. Further, the paper stated:

12. [65]

    The assumption in the present case was that Mrs Wolff suffered from vascular dementia, not Alzheimer’s disease.

13. [66]

    It should be observed that Dr Eikens did not merely attach the papers; her opinions expressly addressed the qualifications, for example, on the use of mental status scales identified in the paper on that topic.

The reasoning of the trial judge challenged on appeal

1. [67]

   One of the matters relied upon by the trial judge, as noted above, was the fact that Dr Eikens’ report did not in terms address the test set out in s 11(3) of the Limitation Act. Ground 3, which challenged that passage in the judge’s reasoning has been rejected.

2. [68]

   That was in fact the second matter relied upon by the trial judge, the first being expressed in the following terms:

3. [69]

   Ground 1 in the amended notice of appeal sought to identify two errors in that reasoning. The first was in the statement that Dr Eikens did not see Mrs Wolff and assess her condition; the second lay in the proposition that the reports she relied upon did not support her conclusions.

4. [70]

   As to the first matter, the appellant’s submissions noted that, in cases involving challenges to testamentary capacity, it was often the case that professionals who had not seen the deceased were able to express opinions as to testamentary capacity. That, of course, is true, but there was no challenge to the admissibility or qualifications of Dr Eikens to form opinions. It is also true that in cases involving challenges to testamentary capacity, contemporaneous medical evidence and lay evidence from people who associated with the deceased during his or her lifetime is often a valuable source of relevant information. It was entirely appropriate for the judge to take into account the fact that Dr Eikens was reviewing medical reports which had been provided to her and basing her opinion entirely on those reports, evaluated in accordance with her training and experience.

5. [71]

   As to the second matter, the trial judge did not criticise Dr Eikens’ opinions on the basis of the other reports, but rather stated that those reports “[did] not provide much support for the plaintiff’s contention”. The plaintiff’s contention had been set out two paragraphs earlier, and was in the following terms:

6. [72]

   The analysis of the earlier reports has already been discussed. There was no denying, nor did the trial judge purport to deny, that Mrs Wolff suffered, in the period from 2012 until 2016, from a range of medical conditions and accompanying disabilities. Several of her conditions were relevant to her ability to manage her affairs in relation to the proposed cause of action to recover the loan. None of that material, even when read with the analysis provided by Dr Eikens, demonstrated with any degree of clarity that the test in relation to the specific disability relied on under s 11(3) was satisfied. Indeed, for the reasons already given, the better view is that that material did not satisfy the test. The analysis in [127] of the trial judgment was not erroneous.

7. [73]

   Ground 3B took issue with the judge’s analysis at [129] which was in the following terms:

8. [74]

   Ground 3B was expressed as follows:

9. [75]

   There are three points to be made in respect of this criticism. First, the trial judge was not suggesting that Suzanne Binetter did not give evidence indicating that Mrs Wolff had numerous disabilities, some of which, such as her blindness, were continuous. It may be inferred that there was a degree of cognitive impairment which was also continuous. Other afflictions came and went: these included confusion, forgetfulness, delirium. Suzanne Binetter’s evidence in relation to these matters, based on her direct communications with and personal observations of Mrs Wolff, was clear and unequivocal. That was expressly acknowledged by the trial judge in the first sentence at [129].

10. [76]

    A comparison was then drawn between that evidence and the evidence as to Mrs Wolff’s understanding of her cause of action based on the loan to her nephew, Ronald Binetter. As to that, Suzanne Binetter’s evidence fell into three periods. First, she supported the conclusion that Mrs Wolff firmly believed in September 2010 that she was making a loan to Ronald for a precise amount. Secondly, in the period starting some weeks after making the loan, she was agitated by the fact that it had not been repaid and that she was entitled to be repaid. Thirdly, when the issue arose in 2018, Suzanne Binetter’s description of the conversation between her and Mrs Wolff reflected the propositions that (i) Suzanne Binetter thought Mrs Wolff was capable of giving instructions in relation to recovery of the money; (ii) when she posed the question to Mrs Wolff she got a clear and rational response; and (iii) that response was to obtain legal advice with the purpose of commencing proceedings. It may be observed that the context in which that occurred was the commencement by Ronald of proceedings in NCAT which would, if pursued, have deprived Mrs Wolff of control of her affairs and vested them in the Public Guardian. That step by her nephew probably removed any prior hesitation in taking the course of commencing proceedings against her sister’s son for repayment of the loan.

11. [77]

    There was no error in this passage in the judge’s reasoning.

12. [78]

    Ground 3A stated:

13. [79]

    This ground related to the following passage in the judgment:

14. [80]

    Ground 3A did not accurately reflect the reasoning at [130].

15. [81]

    Both in written and oral submissions, ground 3A was dealt with on the basis that Suzanne Binetter’s evidence, supported by the medical evidence, demonstrated that Mrs Wolff could not reason normally about all the matters relevant to her cause of action, so as to be able to understand and consider any advice given. The matters included, (a) giving instructions to proceed, (b) entering into a costs agreement and understanding its terms (often detailed with the basis of billing and the client’s rights set out), (c) reviewing a statement of claim, (d) reviewing any defence, (e) giving instructions for an affidavit, (f) reviewing the defendant’s affidavits, including responding where appropriate, (g) considering advice and giving instructions as to expert evidence, and (h) submitting to cross-examination. As the submissions further stated, “[m]any lay litigants who have no disability find these steps complicated and confusing at times”.

16. [82]

    The trial judge accepted that Mrs Wolff’s capacity needed to extend beyond answering the questions posed by Suzanne Binetter as to her intention to obtain legal representation to pursue her claim. However, as explained above by reference to the reasoning in Guthrie v Spence, the possibility that if proceedings are commenced the plaintiff may need a tutor does not necessarily demonstrate that the plaintiff was under a disability in relation to the commencement of proceedings sufficient to engage the suspension of the limitation period under the Limitation Act. To the extent that the appellant’s submissions suggested a different approach, that should not be accepted. There was no error in the approach adopted by the trial judge in this respect.

17. [83]

    Further grounds of appeal, not expressly identified above, raised substantially the same criticisms in relation to other aspects of the judge’s reasons. With one exception, none warrants further consideration. The exception is ground 2 which alleged error on the part of the trial judge “in finding limitations in the expert reports served by the appellant in circumstances where the respondent never required the authors of the reports for cross-examination”. The reports in question including those of Drs Jankelowitz, Foley and Gonski.

18. [84]

    This ground was carefully formulated to suggest that the trial judge “found limitations” with respect to the opinions expressed by experts, but it did not suggest that he rejected their opinions. That was a correct analysis. However, every expert opinion has “limitations”, often identified, but sometimes implicit. The suggestion that a trial judge must ignore such limitations if the expert is not cross-examined about them is manifestly unsound. The same would be true for any suggestion that, absent cross-examination, the judge is obliged to accept whatever conclusion the party tendering the report seeks to draw from it. On one view, the appellant’s case failed because the reports did not provide sufficient support for the particular matter which the appellant was required to prove, based on the limited effect of the expert evidence. Ground 2 needs to be addressed because, if correct, it would presumably not be open to this Court on an appeal by way of rehearing to uphold the findings of the trial judge based on the limited effect of the expert evidence. That reasoning cannot be accepted and ground 2 must be dismissed.

19. [85]

    However, as the respondent noted, there was a bold assumption underlying ground 2. It was that because there was a power under the Uniform Civil Procedure Rules 2005 (NSW), r 31.29(2), for a party served with expert reports to require the attendance of the expert for cross-examination, there was an obligation to require such attendance if the content of the report were to be the subject of criticism, limitation or challenge. That proposition is not self-evidently correct.

20. [86]

    Rule 31.29 relevantly provides as follows:

21. [87]

    It might be expected that the subject matter of r 31.29 was an expert report obtained for the purposes of the litigation, with the common expectation that, if required, the expert would attend and give oral evidence as a witness. However, that understanding may need to be qualified by the fact that r 31.29 deals with reports served “in accordance with r 31.28”. The latter rule is broad in its scope:

22. [88]

    As the respondent submitted, it would be a startling proposition if every health professional involved in treating a patient who prepared a document which became part of the hospital records or was sent to a general practitioner, or constituted the records of the general practitioner, became liable to a requirement to attend for cross-examination if the document obtained on subpoena was tendered because it contained an expert opinion.

23. [89]

    Part 31, Div 2, relating to expert evidence, contains the following definitions:

24. [90]

    If these definitions were applied uniformly through Part 31, Div 2, entirely anomalous results would be achieved. Thus, r 31.27 imposes a set of requirements with respect to “an expert’s report” which self-evidently cannot apply to hospital records and treating health professional reports generally. Further, the main purposes of Part 31, Div 2 are identified in r 31.17 in the following terms:

25. [91]

    These purposes would not be advanced by rendering all treating health professionals liable to be required for attendance for cross-examination in litigation. It is not necessary to determine whether and to what extent r 31.28 applies to such treating doctors and hospital records. Assuming that it applies generally, r 31.29(2) should be read down so as not to permit a party to require the attendance of an expert who was not intended to be a witness in the proceedings.

26. [92]

    However, it is sufficient for present purposes to observe the limits of the rules. Whilst r 31.28 no doubt limits the circumstances in which otherwise admissible evidence can be adduced in a hearing, it says nothing about the principles governing cross-examination or the effect of not cross-examining the author of a report. It should be inferred that the rule does not intend to undermine the beneficial purposes of s 69 of the Evidence Act 1995 (NSW), rendering business records admissible without the need to call the author of the document.

27. [93]

    It is, however, sufficient for present purposes to observe that r 31.29(2) imposes no obligation to cross-examine in circumstances where that would not otherwise be thought necessary, nor does it say anything about the use which can be made of a document where the author has not been the subject of cross-examination. For this additional reason, ground 2 was not soundly based.

Other issues

1. [94]

   By his notice of contention filed on 21 April 2022, the respondent sought to raise two issues. The first, which had not been relied on by the trial judge, was that Mrs Wolff was not under a “disability” for the purposes of s 52 of the Limitation Act at any relevant time from 2 December 2011 when she executed enduring powers of attorney in favour of her sister Margaret Binetter and Suzanne Binetter and appointed Margaret as her enduring guardian. The trial judge noted a similar submission put to him, doubted its correctness but did not need to consider it further as the plaintiff had failed to discharge his onus of proof as to disability at the relevant time. [16] For similar reasons, it is not necessary to determine the contention on the appeal. However, the doubts of the trial judge carry weight.

2. [95]

   There is nothing in ss 11 and 52 of the Limitation Act to suggest that they are in some way qualified by the existence of legal powers of others to act on behalf of putative plaintiffs. Rather, they are concerned directly and specifically with the personal circumstances of the putative plaintiff and his or her capacities (in particular respects) and abilities. As Campbell JA noted in Guthrie, the circumstances identified in s 11(3) amounting to a relevant disability are far from comprehensive. There are other matters which might excuse a person’s failure to comply with a limitation period which are not included. Similarly, the fact that a person may have appointed another to look after his or her affairs in the event of disability might be thought to undermine the justification for suspending a limitation period with respect to a person under a disability. The Limitation Act does not do that. It should not be given such an effect by implication in the absence of any attempt to reconcile potentially conflicting tests for the engagement of guardianship provisions and the language of s 11(3).

3. [96]

   The second issue, addressed in the course of submissions, concerned an inference which might have been drawn from the failure of the appellant to call the solicitor, Mr Secivanovic, who took instructions from Mrs Wolff for the commencement of the proceedings. The trial judge declined to draw a Jones v Dunkel inference from the solicitor’s failure to give evidence about what was “arguably” a privileged conversation. [17] The judge continued:

4. [97]

   The complaint, somewhat muted, and not addressed in the grounds of appeal, was that the judge had in fact drawn an inference from the absence of the solicitor. However, the statement set out above did not involve an inference of the kind permitted by Jones v Dunkel [18] that the evidence of the solicitor would not have assisted the plaintiff. Arguably such an inference may have been available, but it was not that which the trial judge drew. There was no error in the passage set out above.

Conclusions

1. [98]

   For these reasons, the challenges to the finding of the trial judge that the appellant had not discharged his onus of proof in relation to the suspension of the limitation period [19] must be rejected. The Court should make the following orders:

   1. (1)

      Dismiss the appeal from the judgment and orders made in the Common Law Division.

   2. (2)

      Order that the appellant pay the respondent’s costs in this Court.