Yang v New South Wales Land and Housing Corporation

1. [1]

   HIS HONOUR: By an amended notice of motion filed on 17 December 2020, the defendant sought a determination pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), in advance of the substantive hearing of the plaintiff’s further amended statement of claim (FASOC), of whether the plaintiff was under a disability within the meaning of ss 11(3) and 52(1)(c) of the Limitation Act 1969 (NSW) in one or more of three periods of time. This determination was relevant to overcome what would otherwise be a dismissal of the FASOC, on the basis that it was filed outside the relevant limitation period, contrary to s 14(1)(b) of the Limitation Act.

2. [2]

   Pursuant to orders made on 23 December 2020 by Cavanagh J, this is the separate determination of that question: Yang v New South Wales Land and Housing Corporation [2020] NSWSC 1925.

3. [3]

   The applicable limitation period for the plaintiff’s cause of action is six years, which is set by s 14(1)(b) of the Limitation Act:

4. [4]

   Section 52 of the Limitation Act provides that the limitation period may be suspended for periods when the plaintiff was under a disability:

5. [5]

   As to the meaning of the term “disability”, s 11(3) of the Limitation Act relevantly provides:

6. [6]

   This matter first came before me, sitting as the Common Law Duty Judge, in late 2022 as a subpoena issue concerning the production of certain documents: Yang v New South Wales Land and Housing Corporation [2023] NSWSC 84 (the subpoena judgment). The plaintiff’s filings in the case have included numerous missteps in the asserted facts and periods of disability.

7. [7]

   On 13 August 2019, the plaintiff filed a statement of claim seeking damages from the defendant in tort for breach of a duty of care as the owner of the premises, and voluntary bailment, and/or conversion, in respect of certain antiques, which he claimed had an “estimated value” at the time of $1,051,586 (the goods). He was represented by AJB Stevens Lawyers (AJB) at the time.

8. [8]

   The plaintiff pleaded that “in or about 2000”, he entered into a residential tenancy agreement (the lease) with the defendant to occupy an apartment in Kingswood (the premises), which he did until December 2012. In about that month, he travelled to the People’s Republic of China (the PRC) for a holiday, intending to be there for a period of 35 days. However, in January 2013, while still in the PRC, he was arrested and “incarcerated” until about June 2013.

9. [9]

   He further pleaded that on about 16 January 2013, he informed the defendant in a telephone call that he had been incarcerated in the PRC. On about 13 February 2013, the defendant entered the premises and removed the goods, without the plaintiff’s knowledge or consent. On 19 February 2013, [1] the defendant auctioned the goods, for which it received a sum of $1,421.13. The plaintiff returned to Australia in about June 2013. On about 14 August 2013, he discovered that the defendant had removed and sold the goods.

10. [10]

    The plaintiff pleaded that the defendant, as the owner of the premises, had a duty “to use reasonable care to avoid foreseeable risk of harm to the lessee having regard to all of the circumstances of the case”. Further or alternatively, that on taking possession of the goods, the defendant became a voluntary bailee of them. The plaintiff sought damages in negligence for the defendant’s breaches of duty as the owner of the premises and as the bailee of the goods and/or in conversion, in the sum of the difference between the auction price and their value.

11. [11]

    On 2 March 2020, the plaintiff filed an amended statement of claim, the only amendment being of a technical nature, concerning the defendant’s Australian Business Number (ABN).

12. [12]

    On 18 March 2020, the defendant filed a defence to the amended statement of claim. It pleaded that the plaintiff and defendant entered into the lease in respect of the premises, which commenced on 11 February 2002. From about April 2012, the defendant was aware that the plaintiff was not paying rent and was not occupying the premises. His whereabouts were unknown to the defendant until about December 2012. The defendant sent the plaintiff a letter dated 15 January 2013 in accordance with Pt 6, Div 2 of the Residential Tenancies Act 2010 (NSW) (since repealed). The defendant admitted the occurrence of a phone conversation with the plaintiff the following day, in which they “discussed the issue of the goods left at the premises and the plaintiff told the defendant that there was nothing of value at the premises”. On 7 February 2013, the defendant sent an email to the plaintiff advising him that his tenancy had been terminated by an order made by the Consumer Trader and Tenancy Tribunal on 24 January 2013.

13. [13]

    The defendant arranged for John Swanton of Combined Valuers to remove and auction the goods at a public auction. To that end, on 4 and 13 February 2013, Mr Swanton visited the premises to inspect and value the goods. On 19 February 2013, Mr Swanton attended the premises to remove the goods for auction and discovered that since his visit on 13 February, many goods present at the premises had been stolen “by an unknown person or … persons”. Mr Swanton removed “certain goods remaining at the premises” and auctioned them on 9 March 2013. The defendant received $1,421.13 from the proceeds of the remaining goods at the auction, which partly offset a debt of back rent owed by the plaintiff.

14. [14]

    The defendant asserted that the plaintiff’s causes of action, if any, had accrued by no later than 9 March 2013, being the actual date of the auction, which was more than six years before the plaintiff commenced the proceedings, and therefore his claim was statute-barred by s 14(1) of the Limitation Act.

15. [15]

    The following day, the defendant filed a notice of motion seeking that the proceedings be summarily dismissed or struck out, one of the bases being that the proceedings had been brought out of time.

16. [16]

    On 4 June 2020, AJB wrote to the defendant’s solicitors advising that, whilst drafting the plaintiff’s response to the notice of motion, it became aware of a conflict of interest that obliged it to cease to act in the matter.

17. [17]

    The plaintiff engaged new legal representatives, Ayoub Lawyers (Ayoub). On 23 June 2020, Ayoub wrote to the defendant’s solicitors, stating that:

18. [18]

    On 7 September 2020, the plaintiff filed the FASOC, amending the pleadings and particulars in relation to the breach of duty of care as owner and bailee, amending some of the dates of relevant events, and adding pleadings and particulars with respect to the nature and value of goods that the plaintiff had on the premises which were lost or otherwise dealt with in his absence. He pleaded that he departed for the PRC in “early 2012” rather than in December 2012 and that he was prevented from returning to Australia until “about July 2013”, returning in about that month. The plaintiff pleaded that he first became aware of the defendant having removed and auctioned the goods in “about mid September 2013”.

19. [19]

    The plaintiff added four more items to the list of antiques that were in the apartment and adjusted their value, as at 4 February 2013, to $3,642,586. He pleaded that “most of the goods that were of substantial value were stolen from the premises” and that the goods removed by the defendant after the theft and auctioned by a third party on behalf of the defendant had a total value of approximately $1,300,000.

20. [20]

    On 23 October 2020, the defendant filed a defence to the FASOC pleading various defences and maintaining that, in any event, the plaintiff’s claim was not actionable because it was brought outside the limitation period.

21. [21]

    On 10 November 2020, the plaintiff filed a reply to the FASOC in which he alleged being under a disability:

22. [22]

    The plaintiff pleaded that the earliest date that the limitation period could have commenced was the week that some of his goods were stolen from his premises, which was the week of 13 to 19 February 2013 and thus the action was not statute-barred, since:

23. [23]

    By letter dated 13 November 2020, that is, two days after the plaintiff filed his reply to the defence to the FASOC, the defendant wrote to the plaintiff, pointing out that on the basis of the dates pleaded, the maximum period of disability would have expired by 6 July 2019, which was one month and one week before the statement of claim was filed.

24. [24]

    The plaintiff responded with a request for time to provide an amended reply “which will include further aspects of disability which were not included in the version filed and served”.

25. [25]

    On 15 December 2020, the plaintiff filed an amended reply to the defence to the FASOC (the amended reply) in which he maintained the first period of disability and added a second period, pursuant to ss 11(3) and 52(1)(c) of the Act:

26. [26]

    As noted, on 23 December 2020, Cavanagh J ordered that the question of whether the plaintiff was a person under a disability within the meaning of the Limitation Act, and whether the FASOC is statute-barred, be determined separately pursuant to the r 28.2 of the UCPR. His Honour set a timetable for the service of any “lay and expert evidence” by the parties. The plaintiff was to file such evidence by 26 February 2021. The potential periods of disability, within the meaning of ss 11(3) and 52(1)(c) of the Limitation Act, were identified in the orders as follows:

27. [27]

    The plaintiff did not comply with that timetable and ultimately served an expert report by Dr Oldtree Clark, a consultant psychiatrist, that it subsequently did not rely upon, for reasons that are unnecessary to canvass for the purposes of this application, and which were addressed by Dhanji J in Yang v New South Wales Land and Housing Corporation (No 2) [2021] NSWSC 1647. The plaintiff was permitted to rely upon a report obtained subsequently, by Dr Aman Suman, forensic psychiatrist.

28. [28]

    Dr Suman’s opinion in his report dated 8 November 2021 did not support the plaintiff’s pleading in his amended reply as to the dates of the second period of disability. By way of a second further amended reply to the defence to the FASOC filed on 15 December 2021, the plaintiff varied those dates to align with the period of disability identified by Dr Suman, which was between January 2014 and March 2017. The plaintiff submitted that the limitation period was suspended between 13 February 2013 to 6 July 2013 (a period of four months and 23 days) due to his incarceration in China and between January 2014 and March 2017 (a period of three years and three months) due to Dr Suman’s diagnosis of the plaintiff having a major depressive disorder in that period. Thus, the total period of disability was three years, seven months and 23 days.

29. [29]

    The evidence relied upon by the plaintiff comprised an affidavit sworn by him that was read at the hearing, together with his oral evidence, and the opinion of Dr Suman in three reports dated 9 November 2021, 21 March 2022 and 30 July 2023.

30. [30]

    The defendant relied upon the opinion of Dr Patricia Jungfer, psychiatrist, in three reports dated 7 September 2021, 6 December 2021 [2] and 22 June 2023. All six expert reports were tendered on the basis that the histories provided by the plaintiff were not admitted as to their truth, with the exception of admissions against his interest. In their third reports, each expert considered the legal correspondence which became available following the subpoena judgment. Both psychiatrists were required for cross-examination.

31. [31]

    The parties tendered a joint expert report that was filed on 11 October 2023. The experts agreed that there was at least one occasion between 13 February 2013 and 28 March 2019 [3] when the plaintiff was:

32. [32]

    Dr Suman was of the opinion that the plaintiff had a major depressive disorder that “caused substantial impairment in his ability to manage his personal affairs including dealing with complex legal matters from Jan 2014 to Mar 2017”, whereas Dr Jungfer’s opinion was that the only period of substantial impairment in managing his affairs was the week of 17 and 23 November 2016, when he was an involuntary patient in St Vincent’s Hospital.

33. [33]

    The parties also tendered a joint chronology which set out their respective positions regarding the key dates relevant to this determination.

34. [34]

    Correspondence between the plaintiff and his solicitors that was disclosed to the defendant pursuant to the subpoena judgment, and some medical records, were also tendered.

35. [35]

    The legal correspondence between the HPLS and the plaintiff included the following:

    1. (1)

       A letter from the HPLS dated 6 June 2014 that referred to steps they have taken on behalf of the plaintiff “in accordance with instructions provided during our meeting” on 29 May 2014;

    2. (2)

       A letter from the HPLS dated 8 July 2014 that contained information and advice, and sought his instructions to further investigate the responsibilities of the defendant in the context of the issue;

    3. (3)

       A letter from the HPLS dated 14 July 2014 that referred to meetings with the plaintiff on 29 May, 19 June and 26 June 2014 and phone calls on 25 June and 2 July 2014. The letter summarised the plaintiff’s instructions as to his understanding of the fate of the goods and provided advice. The letter concluded with a request that he consider an enclosed draft letter to the defendant and “provide us with your instructions as soon as possible”.

36. [36]

    Correspondence between the HPLS and the plaintiff continued through the balance of 2014, 2015 and until November 2016. On 9 August 2016, the plaintiff forwarded a statement by him in Mandarin to the HPLS by email. On 29 August 2016, the HPLS sent him a translation of the statement. In his statement, he referred to specific items that had been auctioned and provided some information as to when he obtained the item and his understanding of its market value. In respect of each item, there is an observation in identical terms, that appears to have been copied and repeatedly pasted, in which he states that he disagrees with the valuation by Mr Swanton and that he requires the courts to “arrange for a fair appraisal of the value of my collection of Chinese artifacts”.

37. [37]

    An email addressed to the plaintiff from a solicitor at AJB (the plaintiff’s AJB solicitor), dated 12 September 2016, informed him: “I have spoken to a barrister about your matter. We are prepared to take your matter on. Can you come to my office this Wednesday at 9.30am”. The plaintiff replied approximately two hours later, stating: “Thank you for that kindly arrangements. I will be come to you on time”. Later that day, the plaintiff’s AJB solicitor wrote again to him, requesting that he bring with him various relevant documents.

38. [38]

    A letter from the plaintiff’s AJB solicitor addressed to the HPLS, dated 28 September 2016, requested the transfer of his file.

39. [39]

    A letter from the HPLS to the plaintiff dated 13 October 2016, referring to a phone call with him on 7 October 2016, enclosed a copy of his AJB solicitor’s letter to the HPLS dated 28 September 2016. The author stated:

40. [40]

    On 17 November 2016, which I note was the date that the plaintiff was involuntarily admitted to St Vincent’s Hospital with mental health issues, the HPLS forwarded to him a seven-page detailed advice on his prospects (the prospects advice), which advised that he make an offer to the defendant to settle for an amount of $15,300. The opening paragraph of the advice refers to multiple recent conferences:

41. [41]

    Paragraph 6 of the advice is in the following terms:

42. [42]

    The advice included a comprehensive review of correspondence and conferences with the plaintiff between 18 September 2014 and 9 August 2016.

43. [43]

    The plaintiff stated that he was born in China and that his native language is Mandarin, English being a second language. When he travelled to the PRC in about January 2012, he left in the premises a collection of antiques that he had “collected over many years, or inherited from my parents”, including 11 pieces that had a combined estimated value of $3,100,000. He had intended to return to Australia and to the premises in about five weeks.

44. [44]

    On about 8 February 2012, while still in the PRC, he was arrested for what he believed to be political reasons, on a charge of smuggling sandalwood. He was held in prison until about 15 March 2012, when he was granted bail. His passport was not returned to him. He said:

45. [45]

    The plaintiff said that in about December 2012, he phoned the defendant’s office and told a staff member: “I am in China. I’ve been jailed. They’ve taken my passport”. He said he did not know when he would be back. The staff member told him: “You need to pay your rent.” He told the staff member that Centrelink normally paid his rent, but he thought they had stopped payments because he was overseas. The plaintiff said to the staff member: “Please give me your bank details and I will organise payment”. The staff member asked: “When will you be back?” The plaintiff said he did not know, and the staff member hung up, without giving any bank details.

46. [46]

    When the plaintiff returned to Australia in July 2013, his keys did not operate the lock on his unit. He visited the defendant’s office the same day and thereafter repeatedly to speak to someone about the premises, without success, and was homeless. While the plaintiff was residing in Edward Eagar Lodge in August 2013, which I note is an accommodation service for homeless people operated by Wesley Mission, a social worker wrote to the defendant on the plaintiff’s behalf inquiring where his possessions were. A copy of the letter, dated 14 August 2013, was annexed to his affidavit. He received a reply in September 2013, which included the following passages:

47. [47]

    The plaintiff stated that in about July or August 2016 he was advised by “someone at Wesley Mission” that they could not help him further with that issue and he needed to “get your own lawyer”. He instructed his AJB solicitor in about August 2016, who had acted for him “many years ago”. He stated that at some point, he was admitted to St Vincent’s Hospital and, after his discharge, he was treated as an outpatient, “by numerous psychiatrists, psychologists, social workers, psychiatric nurses and other professionals”. In about July 2017, he was transferred to Ryde Hospital’s psychiatric department for ongoing treatment, including by Grace Sham, psychologist.

48. [48]

    On about 30 June 2020, the plaintiff met Norman Ayoub, his current solicitor, for the first time.

49. [49]

    In oral evidence, through the assistance of an interpreter in the Mandarin language, the plaintiff said that while on bail in the PRC, he was subjected to periods of what he termed “collective detention” or “forced study sessions” during which he did not have access to electronic communication. It was after these sessions had finished that he phoned the defendant in either December 2012 or January 2013. In re-examination, he contradicted this evidence, stating that the sessions did not finish until “April or May 2013”.

50. [50]

    The plaintiff agreed in cross-examination that he instructed the HPLS to assist him in relation to the goods, which they did between May 2014 and August 2016. He agreed he was able to provide the HPLS with instructions and they would provide advice “via returning messages”. He agreed that they advised him to obtain written evidence of the value of the goods, and he acted upon that advice.

51. [51]

    In relation to the exchange of emails with his AJB solicitor on 12 September 2016, the plaintiff agreed that he understood that the solicitor required him to bring certain documents to their forthcoming meeting. He said that when he was released from St Vincent’s Hospital, he “took the proper medication and as soon [as] I was discharged, immediately resumed my arranged meetings with said barrister on this case”.

52. [52]

    The plaintiff was asked:

53. [53]

    In relation to the prospects advice, the plaintiff agreed that he understood at the time that he received it that there was a deadline to bring a claim “up until 2019”. He was also taken to a note made by Ms Sham, dated 16 November 2018:

54. [54]

    The plaintiff was asked if the reason that the statement of claim was not filed in time was because his lawyer “simply made a mistake” and replied:

55. [55]

    In his first report, Dr Suman stated that he took a history from the plaintiff and reviewed hospital records, clinical notes from Ms Sham and reports of Dr Clark. It is regrettable that he was provided with the reports of Dr Clark, a non-treating psychiatrist who was not called, although it would appear from the terms of Dr Suman’s report that his opinion was not influenced by them. He was also provided with a report by Dr Jungfer, dated 7 September 2021.

56. [56]

    Dr Suman assessed the plaintiff by way of an audio-visual link (AVL). The history that Dr Suman took from the plaintiff was to the effect that he was imprisoned in the PRC for about three months. Upon his release, he was required to remain in the PRC and was closely monitored for nine months, during which he was angry and became increasingly distressed. Dr Suman eliminated a diagnosis of post-traumatic stress disorder (PTSD) but assessed the plaintiff as having had “an adjustment disorder with mixed anxiety and depressed mood” during his detention in the PRC.

57. [57]

    The plaintiff told Dr Suman that, on his return to Australia in about July 2013, he continued to struggle with “a mix of anxiety and depressive symptoms”, although “he was able to manage his activities of daily living and household chores although he struggled with his energy levels”. Dr Suman said:

58. [58]

    As to the documentation he received from the plaintiff’s solicitors, Dr Suman said:

59. [59]

    I note, however, that Dr Suman did not refer to any medical records that were created in the period between the plaintiff’s return to Australia from the PRC in July 2013 and his admission to hospital as an involuntary patient on 17 November 2016.

60. [60]

    Dr Suman formally diagnosed the plaintiff as having suffered a “major depressive disorder” from January 2014 until the date of his report on 9 November 2021. He concluded:

61. [61]

    Dr Suman had been provided with a copy of Dr Junger’s first report, dated 7 September 2021. Dr Suman noted that Dr Jungfer’s opinion was based exclusively on the documentation. Although their diagnoses of a major depressive disorder coincided, he disagreed with her opinion that it did not render the plaintiff incapable or substantially impeded in the management of his affairs in relation to his legal matter.

62. [62]

    In his second report, dated 21 March 2022, Dr Suman stated he had read Dr Jungfer’s second report, dated 6 December 2021. Dr Suman stated: “Instead of commenting on [Dr Jungfer’s] assessment and findings, I would like to discuss my clinical findings and impression”. He noted that: “I do not have any significant clinical assessment or records for [the plaintiff] from 2012 till Nov 2016”. Dr Suman said:

63. [63]

    In his third report, Dr Suman considered correspondence between the plaintiff and his legal representatives. He said:

64. [64]

    In cross examination, Dr Suman said that persons with a major depressive disorder would need to be assessed on a case-by-case basis to determine whether they were “substantially impeded” in the management of their affairs in relation to a cause of action. Relevant factors are the severity of the disorder, any drug and alcohol issues, physical ailments and/or any underlying cognitive impairment. In the case of the plaintiff, a psychological stressor was his lack of accommodation. Dr Suman said:

65. [65]

    As to documentary material corroborating his opinion that the plaintiff suffered a gradual worsening of his depressive symptoms between January 2014 and November 2016, Dr Suman said there was no clinical documentation, but there was a legal conference note dated 14 September 2016, in which there is an entry of medication, which includes an antipsychotic medication, Lanzek Zydis. He said that the plaintiff had told him he received medication from his general practitioner between 2014 and 2016, but when he did not recognise the names of commonly used psychotropic medications, he assumed the plaintiff was mistaken and recorded in his reports that he had not been diagnosed or treated.

66. [66]

    Dr Suman was referred to the letter from the Wesley Mission to the defendant dated 14 August 2013 and agreed that it did not support a view that the plaintiff was substantially impeded in managing his affairs. Dr Suman was asked why in his report he had not mentioned that the plaintiff instructed two sets of lawyers throughout the period May 2014 to November 2016. Dr Suman responded that the plaintiff did tell him that he was referred to a legal team but “I did not go into details about him … what kind of interaction was it, how much instruction he was providing the legal team, I wasn’t sure”. He said:

67. [67]

    As to whether the plaintiff could have been without disability during the first period, Dr Suman said:

68. [68]

    In re-examination, Dr Suman said he was concerned by a poor result that was obtained by the plaintiff on a cognitive assessment test, the Montreal Cognitive Assessment (the MoCA) that was administered the day after he was admitted to St Vincent’s Hospital in November 2016, which suggested to him that the plaintiff “has been struggling with cognitive impairment, secondary to a mental illness for a very long period, from a clinical point of view”.

69. [69]

    Dr Suman said he asked the plaintiff’s solicitors for the notes of the general practitioners that the plaintiff saw before his admission to hospital, but he understood they had difficulties obtaining them.

70. [70]

    Dr Jungfer’s first report, dated 7 September 2021, was based exclusively on documentary material as to the plaintiff’s health care. She noted that the records in respect of his involuntary admission to hospital November 2016 refer to his mental health deteriorating consequent to an offer from the defendant to settle the matter for the sum of $1,400 and expressions by him of a desire to cause mortal harm to a particular officer of the defendant.

71. [71]

    Dr Jungfer referred to a hospital note dated 22 November 2016, that was tendered at the hearing:

72. [72]

    Dr Jungfer stated that she was shown a redacted copy of the hospital note. She did not refer to the emphasised portion of the quote above, that was in the tendered unredacted copy. She also referred to another hospital note, dated 22 November 2016, concerning a phone call made by a resident medical officer, Dr Begy, to Mr Ngo of Allens Linklaters, on behalf of HPLS. Mr Ngo was recorded as saying he had not met the plaintiff but that he had received legal assistance from HPLS.

73. [73]

    A note dated 25 November 2016, made at a seven-day follow up assessment after the plaintiff’s discharge from the hospital, recorded that he “has been feeling well since discharge” and was “collaborating evidence for his court case”. A note made on 28 March 2017 was to the effect that he had relapsed, complaining of depression and sleep impairment, that he was only leaving his residence, at Edward Eagar Lodge, “to attend appointments”. Dr Suman stated:

74. [74]

    Based on the documentation she reviewed, Dr Jungfer diagnosed the plaintiff as suffering from a depressive disorder and, between 17 and 23 November 2016, from a major depressive disorder. She said:

75. [75]

    Later in her report, Dr Jungfer said:

76. [76]

    Dr Jungfer assessed the plaintiff by AVL on 6 December 2021 with the assistance of an interpreter, who was with Dr Jungfer. She found the plaintiff to be, on occasion, unresponsive to questions she asked, in a way that was inconsistent with the impact of a mood disorder. He was unable to provide information that he had provided to Dr Suman. Dr Jungfer said:

77. [77]

    Dr Jungfer found it difficult to read the plaintiff’s body language, because he constantly complained that he could not hear and bent his head in such a way that she could often only see the top of his head.

78. [78]

    In relation to Dr Suman’s first report, dated 9 November 2021, Dr Jungfer said:

79. [79]

    Dr Jungfer reported that the plaintiff told her that he saw a psychiatrist and a psychologist for treatment “commencing around 2013, 2014 when he lost his home (no medical records to support this history have been provided)”.

80. [80]

    Dr Jungfer said:

81. [81]

    In her third report, dated 22 June 2023, Dr Jungfer referred to the legal correspondence, which she thought “were not very helpful in some respects”. Nevertheless, she said that they did not cause her to alter her opinions expressed in the earlier reports:

82. [82]

    In cross-examination, Dr Jungfer was asked about the MoCA. She said it was only a screening test and, in any event, not an appropriate test for the plaintiff, because English was his second language. The appropriate test for that purpose for a person who did not have English as their first language was a RUDAS COG. She said that administering the test to the plaintiff the day after his admission to hospital, when he was acutely mentally ill, was also inappropriate.

83. [83]

    Dr Jungfer said that a difficulty in preparing her reports was that there was an “absence of records because I’m not able to get a contemporaneous history of treatment”. However, the medical records she did have suggested that the plaintiff responded, “reasonably well” to treatment, although “one of the problems was that he wouldn't stick with the treatment”.

84. [84]

    Dr Jungfer was of the opinion that the medical documentation concerning the plaintiff’s presentation on 28 March 2017 was an insufficient basis for concluding that he was “significantly impaired” at that time. She was asked:

85. [85]

    Dr Jungfer was asked whether an apparent delay in the commencement of legal proceedings could be explained by the fact that the plaintiff was “incompetent at getting” evidence of his loss. Dr Jungfer agreed and said she had asked the plaintiff about the delay:

86. [86]

    As noted, following the orders made by Cavanagh J, the plaintiff amended his case in his second further amended reply to the defence to the FASOC to align the second period of alleged disability with the expert opinion of Dr Suman. As to the first alleged period, the parties accepted at the hearing that the cause of action accrued no earlier than the last possible date of the theft of some of the goods (19 February 2013) and, for the remaining goods, the date of the auction (9 March 2013), which fixes the beginning of the first period of disability as no later than 9 March 2013. Neither party has suggested that the expert evidence supports the proposition that the plaintiff was under a disability earlier than those two dates.

87. [87]

    The plaintiff’s closing written submissions appeared to advance the proposition that he was under a disability between 31 March 2017 and the filing of the statement of claim, but in oral submissions, counsel for the plaintiff clarified that the only relevance of any evidence as to that period was to demonstrate how the plaintiff presented when he was not under a disability. Accordingly, it was agreed between the parties that there are only two periods for consideration as to whether the plaintiff was under a disability, which are as follows:

    1. (1)

       between 9 March 2013 and 6 July 2013 (the first alleged period); and/or

    2. (2)

       between 1 January 2014 and 31 March 2017 (the second alleged period).

88. [88]

    The plaintiff bears the onus of proof of establishing that he was under a disability in one or both of those periods: In Binetter v Binetter (2022) 409 ALR 1; [2022] NSWCA 169, Basten AJA (White and Mitchelmore JJA agreeing) referred to the onus being on the person alleging the disability at [98], although the issue was not in dispute.

89. [89]

    The plaintiff alleges he was under a disability pursuant to s 11(3)(b)(ii) of the Act during the first period because of the “restraint of his person, lawful or unlawful”. The plaintiff’s evidence is that following his release from prison in March 2012, he was unable to leave the PRC for the next 14 months because the authorities retained possession of his passport and for the remainder of his time in China he had only intermittent access to electronic communication, due to further constraints by the authorities in the form of periods of what he termed “collective detention”.

90. [90]

    The only communication the plaintiff had with the defendant in that period was a telephone call he made to the defendant in either December 2012 or January 2013. He became aware in the phone call that Centrelink was not paying his rent, presumably because of his extended overseas stay, and that there were no arrangements in place for him to pay it directly. His evidence is that the employee of the defendant hung up when he asked for bank account details so that he could forward the rent directly.

91. [91]

    Although the plaintiff had been advised that no rent had been received by the defendant for the premises for nine months, he did not initiate any further communication with the defendant, or organise for any rent to be paid, in the following six or seven months before his return to Australia. Although the lease had been terminated effective from 25 January 2013, he said that he did not discover that fact until after he returned to Australia and did not find out that the defendant did not have the goods until he was so advised by a letter from the defendant that he received in September 2013.

92. [92]

    The plaintiff’s submission, as I understand it, is that during the first alleged period of disability, he was unaware that his cause of action had accrued from 9 March 2013; because of the constraints imposed on him by the PRC authorities. His submission appears to presume that the limitation period is suspended if a plaintiff is prevented from discovering that they have a cause of action.

93. [93]

    In my view, the terms of s 11(3)(b) of the Limitation Act are to the effect that, in order for the disability to qualify as one that suspends the limitation period, it must be the reason that the plaintiff was rendered “incapable of, or substantially impeded in, the management of his … affairs in relation to the cause of action”. As a matter of statutory construction, lack of knowledge of the cause of action cannot be a relevant substantial impediment in the case where the limitation period is provided for by s 14(1) of the Limitation Act, which states that the limitation period runs “from the date on which the cause of action accrues”. This is because the accrual of a cause of action does not import questions of actual or imputed knowledge of the cause of action as are found elsewhere in the Limitation Act in relation to the concept of “discoverability” in personal injury actions: s 50D of the Limitation Act.

94. [94]

    For the sake of completeness, to the extent that the restrictions that the authorities of the PRC placed on the plaintiff impeded his ability to contact a legal representative in Australia to commence an action, the plaintiff does not suggest that there was a blanket ban on him communicating with persons or agencies in Australia throughout the period in question. Although he phoned the defendant in December 2012 or January 2013, he does not suggest that he tried subsequently to contact the defendant again or, for that matter, an Australian lawyer who would be able to commence an action against the defendant, even though the periods of “collective detention” were periodic rather than constant.

95. [95]

    In Karaagac v GRE Insurance Limited [1989] NSWCA 116 Meagher JA (Clarke and Hope JJA agreeing) considered an application of ss 11(3)(b)(ii) and 52(1)(c) of the Limitation Act (which, other than gender-neutralising some pronouns, have not been amended since) where the appellant submitted that he was under a disability by virtue of his imprisonment on two separate occasions, particularly the second occasion, during the limitation period. Meagher JA (Clarke JA agreeing) said:

96. [96]

    Clarke JA, referring to s 11(3)(b), said:

97. [97]

    Applying the same reasoning to the plaintiff’s predicament, in my view, he has failed to establish that he was “restrained” from contacting an Australian lawyer to commence the cause of action in the sense that term is used at s 11(3)(b)(ii) of the Limitation Act.

98. [98]

    Accordingly, I am not satisfied that the plaintiff was under a disability for any part of the first period.

99. [99]

    For the second alleged period of disability, the plaintiff relied upon s 11(3)(b)(i) of the Limitation Act. The principles to be applied in determining an issue on that basis were stated in Binetter v Binetter by Basten AJA (White and Mitchelmore JJA agreeing):

100. [100]

     As to the first element, Dr Suman’s opinion was that the plaintiff had a major depressive disorder throughout the second alleged period of disability whereas Dr Jungfer diagnosed him as having a recurrent major depressive disorder from the time of his involuntary admission to St Vincent’s Hospital on 17 November 2016 that responded well to treatment, and was only acute in the week of his admission. Dr Jungfer did not provide an opinion as to the plaintiff’s mental condition before that date (that is, the pre-admission period), in the absence of contemporaneous medical notes.

101. [101]

     Although there were references in the documentation generated by the plaintiff’s legal representatives to him receiving medical treatment and professional counselling in the pre-admission period, the plaintiff did not produce evidence in any form concerning those services or provide an explanation for their absence.

102. [102]

     As to the second and third elements, Dr Suman was of the opinion that the plaintiff’s major depressive disorder had “substantially impeded his ability (between Jan 2014 till Mar 2017) in the management of his personal affairs including legal matters related to the legal claim against the housing commission”, whereas Dr Jungfer considered that he was substantially impeded in the sense contemplated in the Limitation Act only for the week of his admission to St George’s Hospital.

103. [103]

     The observations of Campbell JA at [159]-[160] in Guthrie v Spence (2009) 78 NSWLR 225: [2009] NSWCA 369 and which were approved by Basten AJA in Binetter v Binetter, throw into sharp focus the evidence of the legal correspondence in the second alleged period of disability as to whether, at a practical level, in spite of any depressive disorder, the plaintiff was able to attend to the necessary tasks for the action to be brought in time. The correspondence demonstrates that the plaintiff attended legal conferences and communicated by telephone and email with his legal representatives. His legal representatives acknowledged his instructions and provided him with written and oral advice. Occasional references to him not responding to requests from his legal representatives were not at a level that would suggest a substantial impediment in the progression of the case.

104. [104]

     It appears that his primary task by way of preparation for commencing an action against the defendant was to assist in obtaining evidence of the purchase of the goods and their value. I note that emails generated in February 2017 between the plaintiff and his solicitor demonstrate that the plaintiff was engaged in gathering evidence of his loss, including arranging a conference with him to discuss material that he had obtained.

105. [105]

     The legal correspondence suggests that, whatever the plaintiff’s degree of depressive disorder in the second alleged period of disability, he was not substantially impeded in managing his affairs and taking the necessary steps to commence the action by filing the statement of claim, except for the period of his involuntary admission to St George’s Hospital, which is below the threshold of a continuous period of at least 28 days required by s 11(3) of the Limitation Act. In my view, the plaintiff has not displaced the effect of that evidence and thus has not established that he was under a disability in the sense required in s 11(3)(b) of the Limitation Act in the second alleged period of disability.

106. [106]

     Accordingly, the plaintiff is statute barred from bring his action by s 14(1)(b) of the Limitation Act.

107. [107]

     It is appropriate that an order for costs should follow the outcome.

Orders

1. [108]

   I make the following orders:

   1. (1)

      The plaintiff was not under a disability for the purposes of s 52 of the Limitation Act 1969 (NSW) between 9 March 2013 and 13 August 2019 for a period of at least 28 days;

   2. (2)

      Noting that the plaintiff’s statement of claim was filed on 13 August 2019, the plaintiff’s further amended statement of claim, filed on 7 September 2020, is statute-barred pursuant to s 14 of the Limitation Act 1969 (NSW) and the proceedings are dismissed;

   3. (3)

      The plaintiff is to pay the costs of the defendant.