Yang v New South Wales Land and Housing Corporation (No 2)

HIS HONOUR: In this matter the plaintiff has brought an action against the defendant with respect to the loss of certain property. The substantive proceedings do not as of yet have a hearing date.

Two motions have been brought and were heard before me today. The defendant, by way of Notice of Motion, seeks an order that the report of Dr A Suman dated 9 November 2021, served by the plaintiff, is not to be admitted on the hearing of the separate question in the proceeding. A further order is sought with respect to costs, and that is sought on an indemnity basis.

Heard at the same time, given its interrelated quality, was a motion brought by the plaintiff. By that motion the plaintiff seeks orders that, to the extent that leave is required, the plaintiff have leave to rely upon the report of Dr Suman dated 9 November 2021 in respect of the hearing of the separate question relating to the limitation period; that the defendant have leave, to the extent that leave is required, to file and serve any evidence in response to the report of Dr Suman; that the plaintiff have leave, to the extent that leave is required, to reply to the defendant's further evidence in response; that the plaintiff have leave to file an amended reply in the form annexed to the affidavit of Norman Ayoub dated 30 November 2021; and an order for costs.

As is apparent from the orders sought by each party, the dispute surrounds the plaintiff's desire to rely on a report from Dr Suman with respect to the separate hearing. By way of context, there is a dispute in the substantive proceedings as to whether the plaintiff's summons was filed within the relevant limitation period. It was determined that that issue should be determined separately to the substantive proceedings by Cavanagh J: see Yang v New South Wales Land and Housing Corporation [2020] NSWSC 1925. No date has been set with respect to the hearing of the separate question or the substantive proceedings.

The case itself is a curious one. In 2012 the plaintiff was a tenant in premises in respect of which the defendant was the landlord. On the plaintiff's case, whilst occupying what I understand to be Housing Commission premises, he had within the premises a number of extremely valuable items, including what are described in the further amended statement of claim as two late Ming/early Qin armchairs with an estimated value, according to his claim, of $1 million; Shang vases from the Qianlong period with an estimated value of some $800,000; and various other rare and valuable items said to have a total value in excess of $3.5 million. It is not clear, nor is it relevant, as to how the remainder of the premises were furnished. It seems it is not in dispute that during the course of the tenancy, the plaintiff travelled to China, where he was arrested and incarcerated. Upon his return, and presumably as a result of his unexpectedly prolonged absence, the defendant had assumed possession of the premises. On the plaintiff's case, the defendant, having done so, failed to take appropriate care to ensure the safety of the precious articles, leading to the theft of some of the most valuable items, but also the subsequent auctioning of other items for a fraction of their value. The plaintiff brought his action seeking damages in relation to his loss.

It is necessary, for the purposes of the issues to be resolved with respect to the motions, to provide something of a chronology leading to the present position.

The plaintiff travelled to China in 2012. He was incarcerated there between 8 February 2012 and 29 May 2013 when he was released. He did not, however, return to Australia until 6 July 2013. He asserts in his amended statement of claim that somewhere between 13 February and 19 February 2013 - that is, whilst he was incarcerated - the majority of the valuable items I have already referred to were stolen. On 28 March 2013, there was an auction of further valuable goods which had not been stolen. On the plaintiff's case, the defendant was responsible for the auction of those goods, receiving only a very small fraction of their true value. Based upon his grievances, on 13 August 2019, the plaintiff commenced these proceedings.

The defendant in response indicated that the proceedings, having been filed more than six years after the claim of action, appeared to be statute-barred. In December of 2019 there was correspondence between the parties. I note that in that correspondence the plaintiff referred to the limitation period being impacted by the plaintiff being substantially impeded in the management of his affairs in relation to the cause of action, and in that context referred to his incarceration in China, and also to a medical condition from which the plaintiff suffered.

On 19 March 2020 the defendant filed a strikeout motion based on the proceedings being statute-barred. This prompted a response by the plaintiff. However, at this point the plaintiff sought to answer the difficulty with respect to the limitation period, relying solely on the period of incarceration. It would seem from the correspondence that in doing so, the plaintiff had not appreciated that the period of incarceration prior to the cause of action arising was not relevant to the question of the suspension of the limitation period. I also note that the reliance solely on incarceration occurred in circumstances where the plaintiff had previously indicated in correspondence there were psychiatric issues. It is unfortunate that at this early stage the plaintiff's representatives failed to appreciate or act on the need to rely on a psychiatric condition and obtain evidence in relation to it. It seems that it was not until November of 2020 that the plaintiff indicated, by way of his reply, that he also relied upon his medical condition with respect to suspension of the limitation period.

Around this time, and as a result of the plaintiff making his position clear, it became apparent that the convenient course would be to have the issue with respect to the expiry of the limitation period separately determined. The matter came before Cavanagh J, who, on 23 December of last year, made an order that there be a question determined separately with respect to whether the plaintiff was a person under a disability within the meanings of s 11(3) and s 52(1)(c) of the Limitation Act 1969 (NSW) for various relevant periods between the cause of action allegedly arising and the filing of the summons.

In making that determination, procedural orders were also made. The plaintiff was required to serve his evidence by 26 February 2021. That order was not complied with. There does not appear to be a satisfactory explanation as to why it was not until 6 May 2020 that the plaintiff sought the defendant's consent for an extension of those orders. Indeed, the evidence suggests that nothing was done to obtain the relevant evidence until mid to late April.

On 7 May - that is, the day after the plaintiff had sought, somewhat belatedly, the defendant's consent for an extension - the Registrar made orders which directed the service by the plaintiff of his evidence by 4 June.

On 7 June Dr Clark's report dated 17 May 2021 was served, although at this stage it was provided without the supporting documentation, which followed sometime later.

In response, the defendant served a report from Dr Jungfer on 9 September 2021. At this point, according to the timetable, the plaintiff's reply was due on 7 October.

On 8 October, no reply had been served. The matter was, on that day, before the Registrar. The Registrar granted an extension for the reply to 12 November 2021 subject to what is commonly referred to as a guillotine order. For those unfamiliar with the term, the order was in the following terms:

It has now become apparent that, at the time the Registrar made that order, the plaintiff in fact had received a report from Dr Clark. The plaintiff did not inform the Court that Dr Clark had provided the report commissioned in reply that morning, nor did the plaintiff advise the Court of any intention to obtain a new report. Whilst certainly the plaintiff could have been more open with the Court in relation to the process that was then evolving, I would not be prepared to find that the plaintiff acted with any intention to mislead the Court or, indeed, to engage in any sharp practice.

The explanation raised in the course of this hearing, and one which seems at least understandable, was that the plaintiff, having received Dr Clark's second report that morning, was uncertain as to how to deal with the situation. That state of affairs is more readily understood in the context of the nature of two reports provided by Dr Clark, a matter to which I will return shortly.

In the event the plaintiff determined to obtain a further report and briefed Dr Suman. Dr Suman was briefed with, inter alia, Dr Jungfer's report, but there was additionally a change in strategy, in that Dr Suman interviewed the plaintiff for the purposes of the report; whereas the reports previously obtained from Drs Clark and Jungfer had been prepared solely based on documentary material.

On 12 November 2021, the plaintiff served Dr Suman's report and the second report of Dr Clark. The defendant, understandably, had not anticipated a report from a second doctor; nor had it anticipated a report based upon an actual assessment of the plaintiff. In those circumstances, the defendant brings its motion seeking orders that the plaintiff not be allowed to rely upon the report of Dr Suman.

The plaintiff's motion is, in effect, seeking orders that it be allowed to rely upon the report, but also that further orders be made to address any potential unfairness to the defendant as a result of the late arrival of Dr Suman's report.

As I have already indicated, the matter came before me for hearing today. I note that the defendant has taken the prudent course of seeking to arrange an appointment for the plaintiff with Dr Jungfer, and has managed to arrange an appointment for 6 December. That is, in effect, the next working day following this hearing. The defendant is to be commended for its responsible actions in this regard and certainly ought not to be prejudiced as a result of having taken steps to try and keep this matter on track.

The defendant's position, with respect to Dr Suman's report, is that it is not a report in reply but, rather, a fresh report in chief. If that is the case, then that report has been served outside the time required and, pursuant to r 31.28(3) of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff requires leave to rely upon the report, consent not being forthcoming from the defendant, and; further, that pursuant to r 31.28(4), exceptional circumstances must be established.

Rule 31.28 provides:

The defendant further points to the Practice Note SC CL 1 and, in particular cl 44, and submits that the reliance on the report of Dr Suman is in breach of the Practice Note because the plaintiff is restricted by that note to reliance on a single expert.

In relation to that second issue, cl 44 provides:

It can be seen that cl 44 is, in general terms, indicating a concern on the part of the Court.

Clause 45 is relevant in terms of the actual consequences that may flow from the briefing of multiple experts. Clause 45 provides:

As can be seen, there are potential consequences, including rejection of the tender, and potential consequences with respect to the calling of the expert, and with respect to costs.

In the present context, however, the plaintiff has made plain that, in the event that Dr Suman's evidence is allowed, he will not rely on Dr Clark. In those circumstances, it seems to me that the plaintiff seeks to rely upon a single expert; it is just that the plaintiff wishes to change horses midstream.

The substantive issue, it seems to me, is the one raised by r 31.28. There is a contest between the parties as to the application of the rule. The defendant says the rule applies because the evidence is evidence-in-chief and, therefore, has been served outside the orders. The plaintiff submits the evidence is in reply and, therefore, is not in breach of the orders and, therefore, r 31.28 does not apply.

I am of the view that the rule does apply. Despite the fact that the report does, at least in part, answer matters raised by Dr Jungfer, substantial parts of the report are directed to the primary question.

Further, a somewhat different methodology was applied for the preparation of the report. That is, as I have already indicated, the plaintiff was examined by Dr Suman. In these circumstances, and on a fair reading of the report - and, indeed, having regard to the plaintiff's indication that he would, in effect, abandon Dr Clark if allowed to rely upon Dr Suman - it is tolerably clear that Dr Suman's report is, in essence, an attempt to start again with a new expert and that the evidence is, largely, in the nature of evidence-in-chief.

That is not the end of the matter because, of course, the question comes down to the issue of exceptional circumstances within the meaning of r 31.28. The determination of that issue requires careful consideration of the facts of the particular case. Each case is, of course, unique to its own facts.

In determining the question and the manner in which the particular rule applies, I must have regard to the provisions of the Civil Procedure Act 2005 (NSW) itself and, in particular, to ss 56 through to 60.

Section 56(1) provides that the overriding purpose of this Act and the rules of Court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Subsection (2) provides that I must seek to give effect to the overriding purpose when exercising any power under the Act or the rules of the Court, and when I interpret any provision of the Act or any such rule.

Section 57 provides:

Section 58 provides:

Section 59 provides:

Section 60 provides:

Clearly, a case such as this involves a balancing of various considerations: Delay and cost, on the one hand; just resolution of the issues, on the other, albeit that "just" may incorporate qualities of not only the substantive merits, but also delay.

The issue really to my mind seems to arise as a result of difficulties on the part of the plaintiff with respect to relying on Dr Clark's report. At the hearing of this matter, the position was somewhat unusual in that, to advance its position on the motion, it was in the plaintiff's interest to submit that Dr Clark's reports were of little value. That submission, of course, would be directly contrary to the plaintiff's interests, in the event that the plaintiff was forced to rely at hearing on those reports.

On the other hand, the defendant sought to agitate the proposition that Dr Clark's reports were perfectly adequate for the purposes of agitating the issues between the parties. The defendant, of course, will, no doubt, at any hearing - in the event that Dr Clark is relied upon - be anxious to put a slightly different complexion on Dr Clark's evidence and is likely to submit that it is, certainly in comparison with its expert, Dr Jungfer, lacking.

It is in the context of those oddly contradictory positions that I need to determine the merits of the orders sought by the parties.

Dr Clark's first report dated 17 May is, in my view, regrettably lacking. Section 14(1) of the Limitation Act provides a limitation period of six years. That period is, in effect, extended as a result of the operation of s 52 of that Act as a result of the limitation period being suspended during periods during which the person - here, the plaintiff - is under a disability. "Disability" is defined in s 11 of the Act as follows:

It seems that Dr Clark, despite having been engaged to address that issue, failed to address it. While he was asked a question directed to that definition - and in particular whether the plaintiff was, for a continuous period of 28 days or upwards, incapable of or substantially impaired in the management of his or her affairs in relation to the cause of action - he answered that question simply by saying, "He was suffering a major depressive disorder between July 2013 and 21 March 2019." Dr Clark continued: "He still suffers that psychiatric disorder. This is a primary psychiatric disorder."

That, on its face, is not a clear answer to the question asked. Arguably, one might infer that Dr Clark is there saying that, as a result of that major depressive disorder, the plaintiff was incapable of or substantially impaired in the management of his affairs, but it is not altogether clear.

He was also asked to provide his reasoning in respect of the response. Dr Clark, in response to that question, simply indicated the criteria for the diagnosis of a major depressive disorder, as laid out in the DSM-V, and that the plaintiff fulfils this criteria. He then indicated that such a disorder that lasts longer than two years is now known as a persistent depressive disorder.

He opined that the plaintiff suffered a continuous major depressive disorder from July 2013 to 21 March 2019 and is still suffering this, but at no stage did Dr Clark directly express an opinion that the plaintiff was substantially incapable or substantially impeded in the relevant sense; or indicate what it was about the fact that he suffered from a particular disorder that meant that he was impeded or substantially impaired. The report is sadly lacking in any clear expression of the opinion sought or the reasoning relied upon to support it. Despite this, the plaintiff served and sought to rely upon the report.

Dr Jungfer, in her report of 7 September, responded in significantly greater detail. Dr Jungfer, based upon the same documentary material as provided to Dr Clark, provided, across the course of a significantly lengthier report, an opinion that sought to review the documentation provided and provide an opinion, based upon that documentation, as to how the depressive illness, which she accepted the plaintiff suffered, actually impacted upon him in the context of the relevant question, being whether he was incapable or substantially impeded in the management of his affairs in the relevant sense.

It is perhaps regrettable but, to some degree, understandable that it only appears to have occurred to the plaintiff how lacking Dr Clark's report is when the plaintiff received Dr Jungfer's report. It is in that context that the plaintiff took the action of obtaining a report in reply from Dr Clark but also, perhaps hedging his bets, sought a report from Dr Suman.

In my view, the plaintiff was wise to at least hedge his bets because, whilst Dr Clark's further report is perhaps more appropriately detailed than the first report, it is still sadly lacking.

In that further report, Dr Clark, across pages 1 and 2, essentially reiterates a history previously set out in the first report. At the end of the second page he notes Dr Jungfer's report and her opinion (at this point). He notes Dr Jungfer's opinion with respect to the major depressive order and its relationship to the disability as defined by the Limitation Act.

In response Dr Clark set out the criteria under DSM-V. He then set out the question for opinion, being whether Mr Yang was, during any period or any periods during July 2013 to 21 March 2019, under a disability under the meaning of s 52(1)(c) or s 11(3)(b)(i) or (ii) of the Limitation Act, namely whether he was:

In answer to this, Dr Clark says, "He was suffering a major depressive disorder between July 2013 and 21 March 2019. He still suffers that psychiatric disorder, this is a primary psychiatric disorder." This appears to me to be simply a repeat of the inadequate answer given in the first report.

He was asked to provide his reasoning in relation to that answer. He referred to DSM-V, repeated what he had previously said with respect to a condition lasting longer than two years being known as a "persistent depressive disorder", but otherwise fails to relate the depressive disorder to the notion of "disability" under the Limitation Act. Rather, the reasoning appears to be reasoning directed towards why he found the plaintiff to have a major depressive disorder. Even in that regard, there was no process of reasoning, but rather what appears to be more in the nature of conclusory statements.

Dr Clark went on to express an opinion that the disorder was continuous over the period from July 2013 to March 2019. He was then asked the question with respect to whether, at any period of time, by reason of any disease or impairment of his mental condition, the plaintiff was substantially impeded in the management of his affairs in relation to the cause of action constituting these present proceedings. He answered, "In my opinion, Mr Yang was substantially impeded." That is the totality of his answer to that question.

It raises two difficulties. Firstly, insofar as the question referred to whether, at any period of time, an answer that the plaintiff was substantially impeded does not, self-evidently, indicate that the substantial impairment related to any particular part of that time, but rather can be understood to be that at some point in time he was impeded.

It might be, on a fair reading of the answer, Dr Clark was trying to say that the plaintiff was substantially impeded for the entire period but, even accepting that, the answer fails to provide any reasoning connecting the depressive disorder with the notion of substantial impairment under the Act.

Dr Clark went on to refer to an aspect of the letter of instruction. The report states:

In answer he said:

It is not entirely clear as to what period Dr Clark is referring to when he refers to "before preparing the Court case".

He was asked:

The answer was:

He was referred to the report of Dr Jungfer. He noted in his report that he had been directed to the following:

He answered:

Again, perhaps reading fairly, Dr Clark is trying to express a view that the condition persisted over the entire period. Again, however, it is not clear but, perhaps more significantly, there is again a complete failure to make any attempt to analyse any of the evidence as to what was happening in the plaintiff's life and relate it to his condition and his capacity to deal with the proceedings.

The ultimate result of this is that the plaintiff is in an invidious position. Having conducted the proceedings to date in a manner that is well short of exemplary, leading to delays, his lawyers have instructed an expert but, in this instance, through no fault of their own, have received reports that simply do not grapple with the issues that need to be determined, in a substantial and properly reasoned fashion. It is understandable, in those circumstances, that an alternative was sought.

Dr Suman has, by way of contrast, endeavoured to provide a significantly more comprehensive analysis.

The situation is regrettable. There are a number of factors that need to be considered, including the timing of the further report; the reason for its lateness; the materiality of the evidence contained; the time available; the ability of the defendant to meet the report; and the availability of the witness for cross-examination. Those things are all to be considered in the overall context of the proceedings.

The issue to be determined, in the course of the separate question, is important. If the plaintiff is unsuccessful, he will be shut out from his claim. The plaintiff appears to have a substantial argument with respect to his psychiatric condition having impacted his ability to manage his affairs in the relevant context.

While it is true, as the plaintiff says, Dr Clark could be asked the questions in due course and directed to answer them more completely, the problem with that course is that Dr Clark has shown to date no capacity to do so, despite being directed across two reports. There will also be, should that course be taken, an absence of clarity as to what really is in issue between the experts, leading into the hearing.

The hearing itself, in my view, will be greatly assisted if each side is armed with evidence given by experts that actually addresses the course of the plaintiff's condition across the relevant period, and is able to give an opinion as to how that condition manifested itself, particularly with respect to the plaintiff's ability to manage his affairs.

Whilst the further delay that will be caused is regrettable, I do note that the plaintiff can be seen by Dr Jungfer on Monday, and it would be hoped that, to the extent that there is further delay, it will not be excessive. I also that the orders sought by the plaintiff are designed to eliminate prejudice outside the delay itself to the defendant.

In coming to my view, I have had regard to what was said by his Davies J in Ralston and Collins v Chaffey [2018] NSWSC 1994 at [81] – [82]. Nonetheless, having regard to the importance of the issue; the rather unusual circumstances by which the plaintiff finds himself in the position of needing to brief a new expert; the capacity of the defendant to meet that evidence; and the extent to which the inevitable further delay is mitigated virtue of the forthcoming appointment scheduled with Dr Jungfer, I am of the view that the plaintiff has established that the circumstances are, relevantly, exceptional and I grant leave to the plaintiff to rely on the report.

That being so, I decline to make an order in terms of prayer 1 of the defendant's motion. I make orders in terms of prayers 1, 2, 3 and 4 of the plaintiff's motion.