Smith v Jones

1. [1]

   These proceedings were commenced by Statement of Claim filed on 19 June 2021. They concern a claim by the plaintiff, Ms Smith, for damages for trespass, assault and battery by her former husband, the defendant, Stephen Jones, between 1995 and 2009.

2. [2]

   Mr Jones seeks summary dismissal of the proceedings on the basis that they are wholly and hopelessly statute-barred, or in the alternative, an order that the Statement of Claim be struck out.

3. [3]

   Ms Smith seeks a declaration that she was under a disability as defined in the Limitation Act 1969 (NSW) from June 2009 to 19 June 2021 and so the proceedings have been brought within the applicable limitation period.

4. [4]

   The parties through their counsel agreed that the notices of motion should be heard concurrently given the overlap of evidence relevant to both.

5. [5]

   For the reasons that follow, I have concluded that Ms Smith has not established her assertion of disability for any continuous period of at least 28 days at any time in the 12 years period asserted, and so her claim is statute-barred.

6. [6]

   I have also concluded that as her claim is not maintainable it is an abuse of process and so must be dismissed.

Relevant Rules and Legal Principles

1. [7]

   Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 13.4 provides for dismissal of proceedings:

2. [8]

   Mr Jones argued that sub-rule 13.4(1)(c) applies because the proceedings are not maintainable because they are statute-barred and so are an abuse of process.

3. [9]

   At the time Mr Jones’ notice of motion was first listed for hearing on 23 February 2022, it was common ground that the initiating Statement of Claim was poorly pleaded and had to be repleaded. Mr Jones asserted that the subsequent amended pleading is still an abuse of process and should be struck out under r 14.28 both because it asserts an action that is not maintainable because it is statute-barred, and in respect of the allegations in 5(a) and 6(a), because they are too vague and imprecise. His primary position however is for summary dismissal of the whole proceeding.

4. [10]

   The principles for summary dismissal are usefully and accurately summarised in the defendant’s written submissions dated 11 July 2022 as follows:

5. [11]

   Because Ms Smith’s claim arises in part from acts she alleges occurred before October 2002, some of her cause(s) of action occurred prior to the commencement of the Civil Liability Act 2002 (NSW) on 6 December 2002.

6. [12]

   The limitation period which applies to those pre-October 2002 parts of her claim is 3 years from the date on which the cause of action first accrued. Section 18A of the Limitation Act provides:

7. [13]

   The acts Ms Smith alleges took place after 6 December 2002 are also statute-barred by operation of ss 50C and 50D of the Limitation Act:

8. [14]

   Ms Smith asserted that because she was under a disability (as defined) from 21 June 2009 to 19 June 2021, (the date her Statement of Claim was filed), the limitation period was suspended and so her claim was filed in time, or alternatively, as set out in the written submissions of her counsel in July 2022, she was under a relevant disability until June 2018 and so the claim was brought in time being within 3 years of that date.

9. [15]

   Section 52 of the Limitation Act provides:

10. [16]

    Disability is relevantly defined in s 11(3)(i):

11. [17]

    Section 50F provides for the effect of disability on limitation periods relevant to post December 2002 events to similar effect as the combination of s 52 and s 11:

12. [18]

    I agree with and adopt the analysis of Beech-Jones J (as he then was) in Ida Wolff bht Steven Binetter v Binetter [2021] NSWSC 1249 at [97] to [100] as to the focus and practical effect of these provisions and the judicial adumbrations of them:

13. [19]

    In Guthrie v Spence (2009) 78 NSWLR 225 [2009] NSWCA 369 (“Guthrie”) Campbell JA (with whom Basten JA and Handley JA agreed) held that the “cause of action” relevant to s 11(3)(b) is a particular right to sue that a particular person had and concerning which, the limitation period fixed by statute had commenced to run. The only “affairs” referred to in s 11(3)(b) are those practical matters that lead up to and end with the initiation of proceedings for the particular cause of action, such as seeking advice as to whether a civil remedy exists, evaluating the risks, costs and effort involved, and engaging in a continuing process of interaction with a lawyer if it is decided to commence proceedings: [140] per Campbell JA. The law is required to decide on the basis of all of the evidence, both lay and expert, whether the test for incapacity has been satisfied. That requires the Court to be satisfied that the person was “substantially impeded” by reason of a disease or impairment of his or her physical or mental condition.

14. [20]

    Application of principle to Ms Smith’s circumstances is where her circumstances part company significantly with those being analysed by the Court of Appeal in Guthrie. Campbell JA explained the particular facts and circumstances peculiar to Mr Spence and his avoidance behaviour:

15. [21]

    This Court must also be mindful of the matters raised by Campbell JA at [186] in Guthrie regarding “operative periods” of disability in circumstances of mental unwellness:

16. [22]

    I also note the reminder by Basten JA in Binetter v Binetter [2022] NSWCA 169 at [20] to ensure the Court does not (unintentionally) replace the statutory test:

17. [23]

    Whilst Guthrie was about child sexual abuse, there are some broad parallels with the shame and distress that can be associated with allegations of physical and associated psychological abuse by a spouse. I have kept those parallels in mind. Further, the fact of a diagnosis of PTSD or major depressive disorder or alcohol use disorder does not on its own or even in combination establish disability as defined, or that by virtue of that diagnosis or diagnoses, a finding of “incapable” or “substantially impeded in” the management of his/her affairs in relation to the cause of action follows axiomatically. As Guthrie makes clear, analysis of the evidence is required.

18. [24]

    As Guthrie also makes clear, it is all the evidence that must be considered, not just selective parts or highlighted assertions. In this case, that includes an evaluation of what Ms Smith asserted in her affidavit that she tendered as the basis upon which the Court should find disability, how those assertions measure up against other demonstrated facts and documents tendered by the defendant, most of which tend to show the truth is otherwise than as she asserted, and the extent to which any of these gaps could be explained by answers in cross-examination, many of which, I regret to say, were deflecting, unresponsive, defensive, or untruthful.

Evidence

1. [25]

   The following background facts have been taken from the affidavits. Ms Smith’s affidavit comprised a 56 paragraph subjective narrative with a single page psychiatrist’s report dated 1 December 2016 and a 4 page report of a psychologist dated 1 November 2017 attached. The text of the affidavit is replete with self-diagnoses and unattributed and unsupported assertions by Ms Smith.

2. [26]

   Also tendered was a short affidavit from a friend, Ms Willcox, which is of little relevance and no weight. There were also two medicolegal reports of a psychiatrist, Dr Siotia dated 21 September 2021 and March 2022. He was provided with Ms Smith’s affidavit and “GP records of various dates”, none of which were identified in the report, nor was their relevance or his reliance upon them referred to. He was also provided with a report of Dr Barnes, Psychiatrist of March 2017 and apparently interviewed Ms Smith on two occasions in September 2021.

3. [27]

   Documents produced by the South Pacific Private Hospital in response to a subpoena issued by the defendant were also tendered. Those indicate, relevantly, a voluntary admission on 23 March 2017 for 21 days complaining of suicidal ideation, depression, anxiety, PTSD and alcohol abuse, as well as scattered out-patient notes and notes regarding an admission in October 2021 for treatment for alcohol abuse after Ms Smith was accused of assaulting her partner.

4. [28]

   The defendant relied upon three affidavits of Mr Broom, solicitor, appending a significant amount of documentary material including many pages of correspondence by and about Ms Smith, as well as some orders made in the family law proceedings.

5. [29]

   Ms Smith was cross-examined over 2 days on 30 March and on 8 June 2022. The lengthy cross-examination was unfortunately necessary due to evasive answers and the incomplete picture about relevant matters asserted by Ms Smith in her affidavit.

6. [30]

   Ms Smith was taken to a number of significant letters and emails written by her in 2017 and early 2018 which demonstrate her detailed knowledge, understanding and decision-making in relation to her claim for assault and battery against Mr Jones. I have reproduced parts of this correspondence in full as it is the way it is written and the language used that evidences the depth of her knowledge and nuanced understanding which is in stark contrast to the ignorance and helplessness asserted in her October 2021 affidavit.

Factual Background

1. [31]

   Ms Smith and Mr Jones are both 61 years old and are both lawyers. They met in Melbourne in 1985 and a short relationship ensued. They met again in 1993, moved in together in September 1993, and on 20 October 1994 they married.

2. [32]

   Ms Smith alleged in her Amended Statement of Claim that between 1995 and 21 June 2009, Mr Jones was on occasion angry and violent towards her, causing her fear and apprehension:

3. [33]

   Ms Smith also alleged specific acts of physical violence amounting to trespass to the person and battery took place between 1995 and 21 June 2009:

4. [34]

   Ms Smith stated in her October 2021 affidavit that she “began seeing a psychologist” in 2008 to whom she was referred by her GP. She does not identify the psychologist. [3] There are no notes of these alleged consultations in evidence. She does not identify the GP. There are no records about that GP or the referral.

5. [35]

   Clinical notes of a psychologist, Mr Vaughan, are in evidence via Mr Broom’s affidavit. These notes commence on 4 June 2009 and discuss relationship dysfunction and her alcohol abuse. The notes refer to the 21 June 2009 event complained of in 6(c) of the Amended Statement of Claim. The notes cease 23 July 2009. [4]

6. [36]

   On 21 June 2009 Mr Jones left the marital home and did not return. [5]

7. [37]

   Between June 2009 and 2011 Ms Smith asserted in her affidavit that she “felt anxious, depressed”, was unable to sleep and suffered weight loss and abused alcohol. [6]

8. [38]

   Ms Smith asserted that her GP (not named) “prescribed medication” but does not state what the medication was or the name or address of the GP she consulted. [7] From the chronology in her affidavit this appears to be an assertion that this was in 2011, but is not clear.

9. [39]

   I interpolate to observe that of concern is that there is not a single page of clinical notes or reports from any GP whom Ms Smith consulted at any time. This causes me some disquiet that Ms Smith has been selective as to what she has presented to the Court, and what she has chosen not to disclose. (A psychiatrist Dr Jordan is referred to as Ms Smith’s treating psychiatrist for the 4 years preceding October 2021, but there is no record or report in evidence despite that 4 year period extending back to part of the period in which it is claimed Ms Smith was relevantly incapacitated).

10. [40]

    On 30 June 2011 Ms Smith attended a single appointment with Dr Barnes, a Psychiatrist, who diagnosed a major depressive episode. [8] Rather than providing a report or note of that consultation, Ms Smith deposes to her own conclusions as to what that consultation involved and what diagnosis “should have been made”.

11. [41]

    In November 2011 Ms Smith was referred to Gail Purkis, a Psychologist. She saw her for three sessions “focusing on improving coping strategies regarding martial breakdown and associated stresses, regarding her children as a single parent, planning her future life regarding employment, financial stability and dealing with her husband’s friends and family”. [9]

12. [42]

    Between 2012 and 2014 Ms Smith completed a Master of Laws from the College of Law and worked as a consultant/P.A. at a recruitment firm.

13. [43]

    In October 2014 Mr Jones commenced family law proceedings which were served in late October 2014. Ms Smith says in her October 2021 affidavit that this caused her to have “flashbacks” to the alleged events on 21 June 2009.

14. [44]

    In mid-October 2014 there was a further GP referral to Ms Purkis for opinion and management of adjustment disorder and anxiety related to marriage breakdown. [10]

15. [45]

    In November 2014 Ms Smith’s GP made a further referral to Dr Barnes whom it is said altered her diagnosis to PTSD.

16. [46]

    In and from January 2015 Ms Smith attended thirteen sessions of counselling with Ms Purkis. [11]

17. [47]

    On 19 February 2015 the divorce from Mr Jones was finalised by decree nisi. [12]

18. [48]

    In July 2015 Ms Smith again saw Dr Barnes because of an increase in severity of depressive symptoms. Dr Barnes diagnosed a major depressive episode, but by October 2015 these symptoms had lessened and were described by Dr Barnes as “in remission”, with a “significant reduction” in PTSD symptoms. [13]

19. [49]

    In October 2015 Ms Smith commenced work with [REDACTED] where she continued to work until December 2016.

20. [50]

    On 16 February 2016 Mr Jones commenced family law property proceedings (“the property proceedings”) in the Federal Circuit Court of Australia. [14]

21. [51]

    On 24 March 2017 Ms Smith was admitted to South Pacific Private Hospital for depression, anxiety, PTSD and alcohol misuse. She was discharged on 12 April 2017. [15]

22. [52]

    On 28 June 2017 a highly sophisticated, well-researched and assiduously drafted ten-page letter prepared by Ms Smith was sent to Mr Jones’ solicitor, Mr Broom in the property proceedings.

23. [53]

    Part of the letter, titled “Offer to settle proceedings”, included, amongst other matters, the following:

24. [54]

    In the conclusion to this letter Ms Smith made a specific settlement proposal, relevantly including the following:

25. [55]

    On 25 August 2017 Ms Smith signed an employment agreement with [REDACTED] and commenced work with that firm on 4 September 2017. [17]

26. [56]

    Also on 25 August 2017 Ms Smith engaged Watts McCray Lawyers to act for her in the property proceedings.

27. [57]

    On 8 September 2017 Ms Smith swore and filed an affidavit in the property proceedings Court which included the following:

28. [58]

    Ms Smith made other specific reference in that September 2017 affidavit to the allegations that form the basis of her claim for damages in this Court:

29. [59]

    On 11 September 2017 orders were made in the property proceedings which included Mr Jones paying $40,000 to Ms Smith’s solicitors to fund her legal costs, as she had deposed in her affidavit of 8 September 2017 to being unable to pay her lawyers to progress the property proceedings and related sale of the matrimonial home. [20]

30. [60]

    Senior Counsel for Mr Jones, Mr Campbell SC, submitted that the evidence tendered demonstrated that Ms Smith then embarked on a deliberate course of conduct to try and manipulate the property dispute between herself and Mr Jones by hanging over his head the threat that she would sue him for assault if he did not settle the property proceedings in a way that was advantageous to her. The course of conduct comprised detailed exploration of the prospect of using her potential personal injury claim for leverage in the property proceedings and focused agitation via correspondence to pursue that outcome, using the costs funding she had obtained from Mr Jones.

31. [61]

    I have concluded that the correspondence between Ms Smith and her legal advisors, and between herself (and when retained, her lawyers) and Mr Jones’ solicitor certainly supports that submission. Ms Smith also seemed to have had no qualms at all, despite her assertions to the contrary, sharing in specific detail, her allegations of physical (and psychological) abuse by Mr Jones and its effects upon her.

32. [62]

    On 3 October 2017 at 10:12pm Ms Smith sent an email to Rishika Pai, a solicitor at Watts McCray Lawyers: [21]

33. [63]

    It is common ground that the reference to the “000 recording” is the call Ms Smith made on the day of the alleged physical assault on 21 June 2009. (The content of that call is not in evidence).

34. [64]

    On 4 October 2017 at 11:35am Ms Pai sent a reply:

35. [65]

    On 6 October 2017 Ms Pai sent a Brief to Advise to Brian Knox SC, which included the following:

36. [66]

    At some time between 6 and 12 October 2017 a six-page document authored by Ms Smith titled “Background for Paul Creed” was either created or having already been prepared prior, was sent to Mr Knox SC and her solicitors. [24]

37. [67]

    On 12 October 2017 at 9:47am Ms Pai emailed Mr Knox, attaching a document referred to in the subject line as “Helen Smith 12 October 2017.docx”. [25] This document, headed “Summary of Abuse”, included the following:

38. [68]

    On 12 October 2017 Mr Knox emailed Ms Pai. The subject line read ‘Re: Smith’:

39. [69]

    On 12 October 2017 a conference took place. It was attended by Mr Knox, Ms Smith and possibly Mr Franks, a solicitor. [27]

40. [70]

    Handwritten notes of matters discussed at the conference with Mr Knox are in evidence. They contain, amongst other things:

41. [71]

    A document titled “Summary of advices given by Brian Knox SC to client on 12 October 2017” was prepared, (although it is not clear by whom). It comprised the following:

42. [72]

    On 18 October 2017 an advice of Mr Knox was prepared, directed to Ms Smith. [30] In cross-examination, Ms Smith was evasive as to whether she had been provided with a copy of it and/or had read it at or around that time, although an email by Ms Pai to Ms Smith dated 18 October 2017 enclosed the draft Advice. [31]

43. [73]

    The Advice was very thorough and reveals the nature and extent of the detailed instructions Ms Smith provided which included specific detail of the allegations of violence by Mr Jones and their effect upon her, as well as appropriate, detailed, and very clear advice as to her Limitation Act problems and the urgency of that situation. A lengthy extract of the relevant parts of the Advice are contained in the appendix to this judgment.

44. [74]

    On 20 December 2017 at 7:10pm Ms Smith emailed Anne Healey, barrister:

45. [75]

    Apart from again evidencing a nuanced understanding of the elements of her cause of action, this is a rather manipulative email which misrepresents the situation given that Ms Smith had not been “held back” from deploying the “family violence” allegations, and in fact had put them into play in the property proceedings over at least the preceding six months.

46. [76]

    On 21 December 2017 at 4:49pm Ms Smith emailed Ms Pai an email titled ‘Civil action’:

47. [77]

    On 22 December 2017 at 8:57am Ms Smith sent to Ms Pai an email titled ‘Re: Civil action’:

48. [78]

    On 22 December 2017 at 9:04am Ms Pai replied:

49. [79]

    On 27 February 2018 at 9:18am Ms Smith emailed Ms Nyree Deirmendjian from Tebbutt Lawyers:

50. [80]

    On 27 February 2018 Ms Smith emailed Ms Deirmendjian at 11:13am:

51. [81]

    On 27 February 2018 at 4:05pm Ms Smith sent another email to Ms Deirmendjian:

52. [82]

    On 1 March 2018 at 3:38pm Ms Smith emailed Ms Deirmendjian:

53. [83]

    On 1 March 2018 at 4:14pm Ms Smith emailed Ms Deirmendjian:

54. [84]

    On 6 March 2018 at 10:06am Ms Smith sent an email to Ms Deirmendjian titled ‘Can we speak today?’:

55. [85]

    On 6 March 2018 at 10:24am Ms Deirmendjian replied:

56. [86]

    On 6 March 2018 at 10:37am Ms Smith replied:

57. [87]

    On 7 March 2018 at 12:26pm Ms Smith sent an email to Ms Deirmendjian titled “I really need to speak to you!”:

58. [88]

    On 12 March 2018 a ‘Brief to Advise’ was forwarded to Ms Balendra of counsel which includes these observations:

59. [89]

    On 13 March 2018 Ms Deirmendjian forwarded a letter to Ms Smith enclosing costs disclosures and confirmation that a brief had been sent to Ms Balendra, a conference was organised for 4 April 2018.

60. [90]

    Despite this series of intelligent, persistent, well-informed letters set out in pars 52 to 89 of this judgment, in her October 2021 affidavit Ms Smith presented the period late April 2017 to the time she saw Ms Balendra in April 2018 as follows:

61. [91]

    A Memorandum of Advice was prepared by Ms Balendra dated 9 April 2018 to which included the following: [45]

62. [92]

    On 27 April 2018 Watts McCray ceased to act for Ms Smith in the property proceedings. [47]

63. [93]

    On 21 May 2018 Ms Deirmendjian sent a letter to Ms Smith enclosing five medical authorities for Ms Smith to sign so that they could obtain records from Ms Smith’s treating doctors. [48] There is no evidence that she ever signed and/or returned the authorities.

64. [94]

    On 12 June 2018 Ms Smith, writing for herself again, forwarded another very detailed letter in the property proceedings indicating an ongoing intent to continue to use the assault allegations as a threat, including these assertions:

65. [95]

    On 28 June 2018 a follow up letter was sent from Tebbutts to Ms Smith referring to their letter of 21 May 2018 which had asked Ms Smith to pay their bill and enclosed the five medical authorities. [50]

66. [96]

    On 2 August 2018 Mr Broom sent a letter to Ms Smith notifying her that she was in breach of orders made in the property proceedings and that they were making an application for a litigation guardian to be appointed if orders were not complied with. [51]

67. [97]

    On 31 August 2018 Ms Smith forwarded a letter to Mr Broom in the family property proceedings which stated, among other things:

68. [98]

    On 27 September 2018 Ms Smith forwarded a sophisticated six-page letter to Mr Broom which among other things stated:

69. [99]

    On 10 November 2018 an affidavit prepared by Ms Smith was sworn in the Family Court proceedings, which stated, relevantly, the following under the heading “Application to Appoint a Litigation Guardian”:

70. [100]

    In her affidavit of October 2021 Ms Smith asserts that she “consented to the application” as she found dealing with the proceedings overwhelming. Whilst that may have ultimately been the position, it was certainly not the position initially.

71. [101]

    On 26 November 2018 a further letter from Tebbutts was sent to Ms Smith referring to their letters of 21 May 2018 and 28 June 2018, seeking confirmation as to whether they were still instructed to act for her in her proposed personal injury claim. [55]

72. [102]

    On 7 December 2018 at 1:47pm Ms Smith sent an email to Ms Deirmendjian titled “Re: Your Personal Injury Claim”:

73. [103]

    What this email evidences is that having failed to successfully use the proceedings as a threat in the family property proceedings to achieve the desired financial outcome, Ms Smith will now sue Mr Jones in tort. The decision-making was calculated and considered in the context of a perception held by Ms Smith that she could claim “disability” and have the relevant Court make the orders she wanted if the plan did not work.

74. [104]

    There is however no explanation as to why she then did not proceed until 2021, and no satisfactory evidentiary basis upon which I could conclude that Ms Smith was under a disability as defined at any time while these tactical litigious battles were playing out i.e. June 2017 to 19 June 2021. It is clear from the South Pacific Private Hospital records that Ms Smith was consulting a psychiatrist and later a psychologist but nothing from them has been provided to shed any light on any condition that was rendering her incapable or substantially impeded from managing her affairs in relation to her case.

75. [105]

    On 11 December 2018 Tebbutts forwarded a letter to Ms Smith:

76. [106]

    On 27 December 2019, a year after the previous correspondence, Tebbutts sent the following letter to Ms Smith:

77. [107]

    There is no suggestion Ms Smith replied or ever provided further instructions to Tebbutts. There is no medical or other evidence of any kind that supports or explains this period of incapacity. Ms Smith seems to assert that she became “overwhelmed” but I do not accept her bald assertion amounts to relevant “incapability” that she was or “substantially impeded” in managing her affairs relevant to the cause of action without something more.

Cross-examination and demonstrated untruths

1. [108]

   Unfortunately Ms Smith’s answers in cross-examination were mainly evasive, combative, or manipulative of the truth.

2. [109]

   This tendency was demonstrated in the first few minutes of cross-examination in the following exchange about her October 2021 affidavit and its preparation:

3. [110]

   Ms Smith was then taken to her email of 6 March 2018 (set out in par 84 of this judgment):

4. [111]

   There was further deflection when asked about other emails Ms Smith sent to her lawyers in February 2018:

5. [112]

   Ms Smith’s answers in respect of Mr Knox’s detailed advice to her were evasive and in my view, untruthful:

6. [113]

   The answers Ms Smith gave about her understanding as to the role of her affidavit in support of her application for a declaration as to disability were also deliberately obfuscating:

7. [114]

   Ms Smith stubbornly maintained denials in the face of overwhelming evidence to the contrary, for example:

8. [115]

   Ms Smith’s answers about an asserted inability to instruct her lawyer with the facts regarding her claim were also unsatisfactory:

9. [116]

   Further answers given about the content of Ms Smith’s March 2018 instruction email to her solicitors were also unsatisfactory and argumentative:

10. [117]

    The following is an illustration of the approach taken by Ms Smith throughout the cross-examination, combatively seeking to take control of the questioning and providing manipulative answers:

11. [118]

    A number of assertions Ms Smith made in her affidavit were demonstrably untrue. For example, the admission to South Pacific Private Hospital was 3 weeks, not 5 weeks. [68] This is a relevant untruth because a continuous 4 week (28 day) period is the minimum period of required incapacity, and admission to hospital in this way would be an arguable period of incapacity.

12. [119]

    The assertion that Ms Smith “began to think that she should bring civil proceedings” (after the April 2017 inpatient stay) was followed by a narrative that completely left out her focussed and deliberate pursuit of those issues via the family property proceedings and the instructions that she gave and the comprehensive advice she received about that between June 2017 and October 2017. She untruthfully asserted (by this absence) that it was “not until 2018” with the engagement of Ms Deirmendjian that she “finally” received help and “was informed that there were issues about the limitation period”.

13. [120]

    Ms Smith already knew, demonstrably by the advice of Mr Knox in October 2017, but in my opinion likely long before that given her employment as a legally qualified insurance liability claims officer, that there were issues about the expiration of the limitation period applying to her claim.

14. [121]

    Her assertions in paragraphs 46 to 47 of her affidavit under the heading “Attempts to commence proceedings” were followed by further untruths, modelled no doubt on what Ms Smith perceived was successfully argued in “Guthrie” asserting that she “could not” write down what had happened to her like her barrister had asked her to, and that she was “unable to give instructions”. This was untrue as she had already done these things in 2017.

Disability not established

1. [122]

   The relief sought by Ms Smith was a declaration in these terms:

2. [123]

   Ms Smith bears the onus to persuade the Court on the balance of probabilities that she was incapable of or substantially impeded in the management of her affairs in relation to her cause of action. During initial argument, the period of asserted disability was identified by Ms Balendra as 21 June 2009 to the date of filing the Statement of Claim, 19 June 2021. There are obvious problems in approaching the question of disability in such an unfocused way in this particular case, not the least being that there are long periods within those 12 years about which the Court has no evidence at all about Ms Smith’s capacity to manage her affairs in relation to her cause of action. Unlike Guthrie, and despite what Ms Smith baldly asserted in her affidavit, she was not in fact avoiding addressing the subject matter with lawyers until shortly before the claim was filed. She addressed it extensively throughout the last half of 2017 and in early 2018. She also professed (initially at least) an intention not to sue Mr Jones as she did not want to upset their children. This was a choice, not an incapacity or impediment.

3. [124]

   Certainly from June 2017 there is a plethora of evidence that she was well able to manage her affairs in relation to the cause of action at a high level of tactical decision-making. I do not accept that she had anything other than a correct and nuanced understanding of her rights to sue, how and why, and the potential difficulties delay would cause from, at the very latest, October 2017. Instead, with a somewhat cynical and brazen confidence, she chose to deploy her cause of action in the family property proceedings, comfortable that her assertion of disability as a “battered wife”, unable to deal with the subject matter of the proceedings, would be taken at face value later in another Court if her chosen approach failed.

4. [125]

   She was well and thoroughly advised by Mr Knox SC in October 2017. Only when her plan did not pay off over the following years of property proceedings negotiations did Ms Smith then direct attention to filing her civil claim in this Court.

5. [126]

   As referred to in other parts of this chronology of events, Ms Smith filed an affidavit in support of her notice of motion. That affidavit does not, as would be expected, candidly set out an objective and appropriately evidenced chronology of mental health and other difficulties that could be argued to support a finding of disability as defined and the legal advice she sought and was given about her rights to sue. It is in my view a deliberately incomplete, selective and manipulative narrative.

6. [127]

   I have significant reservations about the extent to which that affidavit truthfully reflects Ms Smith’s capacity to manage her affairs in relation to the cause of action. Regrettably, I have concluded that she has not been frank or forthcoming in that affidavit as to her asserted incapacity and impairments. She has instead presented a deliberately incomplete, manipulative and ultimately dishonest picture of her capacity, decision-making, competence, knowledge and understanding.

7. [128]

   The tort was complete at the time the damage was suffered. Here, the tort was assault and battery on various occasions up to 21 June 2009. The latest damage was suffered before or on 21 June 2009. Ms Smith, as a qualified lawyer practising in insurance claims would have been well aware that time commenced to run on that day, unless an assertion of “disability’ is made out. Any suggestions she made in her evidence to the contrary I do not accept. Her sophisticated correspondence about this in 2017 and early 2018 to her solicitor Ms Deirmendjian proves unequivocally that she knew and understood all relevant matters then, if not before.

8. [129]

   Ms Smith deliberately chose not to file her claim, but to pursue her rights to do so in another forum, from at least June 2017. The filing date in this Court is four years later. Even if I took the view that she was “disabled” until June 2017, her filing in June 2021 is too late.

9. [130]

   Dr Siotia’s 2021 and 2022 reports are too vague to assist. He stated that her “psychological injuries are quite significant and had been so for some time” and that “retrospectively” they “probably would have impacted her ability to deal with events arising out of this period including her claim”. His follow up report in March 2022 does not take the matter any further other than to assert that reminders of the abuse “trigger” Ms Smith, resulting in further deterioration in her mental health and that she “avoided any reminders of abuse”, but this is obviously based upon the incomplete narrative provided in the affidavit and the history he took from her.

10. [131]

    Ms Balendra submitted that the expert evidence shows Ms Smith was incapacitated and the very fact that Ms Smith was “not able” to progress her claim in 2017 and 2018 despite wanting to do so, is evidence of disability. I reject those submissions.

11. [132]

    The scant reports of Dr Barnes and Ms Purkis do not sufficiently address the statutory test and I have concluded for the reasons set out at pars 108 to 128 that Ms Smith’s evidence is unreliable. Ms Smith has not discharged her onus of proof in relation to the suspension of the limitation period and so her cause of action remains statute-barred.

12. [133]

    It follows that her cause of action is not maintainable, and so it is an abuse of process and must be dismissed. This is one of those “clearest of cases” referred to in Shaw, and whilst it is usually undesirable to determine limitation issues at an interlocutory stage, it is consistent with the overriding purpose rule and ss 56, 57, 58, 59 and 60 of the Civil Procedure Act 2005 (NSW) to do so here and to dismiss the proceedings at this stage, given the question of disability has been fully explored with evidence, cross-examination and the assistance of counsel for both parties.

Orders

1. [134]

   In respect of Ms Smith’s Notice of Motion filed 28 October 2021, I make the following orders:

   1. (1)

      Notice of Motion dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs of the Notice of Motion.

2. [135]

   In respect of Mr Jones’ Notice of Motion filed on 9 August 2021, I make the following orders:

   1. (1)

      The plaintiff’s proceedings are dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs of the Notice of Motion filed 9 August 2021 and the costs of the proceedings.