New South Wales Supreme Court CITATION : Hoare v Fernando & Ors [2004] NSWSC 239 HEARING DATE(S) : 23 March 2004 JUDGMENT DATE : 31 March 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The relevant limitation period for the plaintiff's claims is extended up to and including 21 December 2001. I order that the plaintiff pay the costs of the Notice of Motion. The Exhibits may be returned. CATCHWORDS : Extension of limitation period - viable cause of action - delay and explanation for delay - prejudice and fair trial. LEGISLATION CITED : Limitation Act 1969, s 60C, s 60E. CASES CITED : Annetts v Australian Stations Pty Ltd 76 ALJR 1348. McLean v Sydney Water Corporation [2001] NSWCA 122. Pauline Jean Hoare (Plaintiff) v PARTIES : Vester Fernando (First Defendant) Far West Area Health Service (Second Defendant) Parole Board of New South Wales (formerly known as The Offenders Review Board) (Third Defendant) State of New South Wales (Fourth Defendant) FILE NUMBER(S) : SC 21019 of 2001 Mr G R Graham (Plaintiff) COUNSEL : N/A (First Defendant) Mr DG Nock SC (Second Defendant) N/A (Third & Fourth Defendants) T D Kelly & Co (Plaintiff) SOLICITORS : N/A (First Defendant) Hunt & Hunt (Second Defendant)\ N/A (Third & Fourth Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Wednesday 31 March 2004 21019 of 2001 Pauline Jean Hoare v Vester Fernando & Ors JUDGMENT 1 MASTER: The plaintiff is a widow. Her late daughter (Sandra) was abducted, assaulted, raped and murdered by Vester Fernando and Brendan Fernando on 9 December 1994. At the time, she was a qualified nurse working on night shift at Walgett Hospital. 2 Subsequently, the plaintiff sought treatment. She was a patient of Dr Shaw both before and after the murder. She had been treated by Dr Shaw for a period of about 8 years. Later, after Dr Shaw had retired in about 1995, Dr Yaxley became her general practitioner. It seems that he first saw her on 22 November 1990. A personal relationship has continued with Dr Shaw. 3 The Director of Public Prosecutions referred her to a consultant psychiatrist (Dr Skinner). She was seen on 4 July 1997 for the purpose of preparing a Victim Impact Statement. A report dated 10 July 1997 was prepared. A copy of it was in evidence. She was also referred by her employer (Centrelink) to Dr Allen. She was seen on 8 April 1998. A report dated 14 April 1998 was prepared and is in evidence. 4 More recently, she has been seen by Dr Phillips (on 14 October 2002). A report dated 11 February 2003 has been prepared and a copy of it is in evidence. 5 There was a committal in about September 1995. The trial took place in about August 1997. Both offenders were sentenced to life imprisonment. Subsequently, Vester murdered Brendan when both were in prison. Vester was sentenced for that further murder. 6 She saw a solicitor (Mr O'Neill) towards the end of 1996. He was consulted as Sandra did not have a will. He was also asked whether or not the plaintiff could make any claim. He told her that he did not want to pursue the matter. She was told nothing about time limits. She then proceeded on the basis that there was no action available to her. It seems that some time before 20 September 1997 a lady on a train gave her the name of a solicitor and suggested that he be consulted. The solicitor was Mr Kelly (the plaintiff's present solicitor). 7 After attending at the Supreme Court with her friend (Margaret Dowson), she came to see Mr Kelly for the first time. This was in April 2001. The proceedings were commenced in 2001. On 11 November 2003, the plaintiff filed a Notice of Motion seeking an extension of the relevant limitation period. The application was heard on 23 March 2004. 8 Although four defendants were named, the plaintiff now only proceeds against the second defendant. 9 In support of the application, the plaintiff has sworn two affidavits. She has relied on an affidavit sworn by Mrs Dowson. The second defendant opposed the application and relied on an affidavit sworn by Kate Dobbie. No deponent was cross-examined. 10 Principally, relief is sought pursuant to s 60C of the Limitation Act 1969 (the Act). The relevant limitation period expired in about December 1997 11 Under s 60C of the Act, the court may, if it decides that it is just and reasonable to do so, order that the limitation period be extended. Section 60E of the Act provides that in exercising the powers conferred by s 60C, a court is to have regard to all of the circumstances of the case (including to the extent that they are relevant, the circumstances enumerated therein). 12 There is no dispute between the parties that the plaintiff has a viable cause of action. 13 There is no dispute that the circumstances relating to the murder were horrific. The plaintiff had been notified that her daughter was missing. When her body was subsequently found, she was not allowed to see it. The full extent of the horror of her death emerged over time. 14 There is medical evidence that she suffered most severe stress in December 1994. The committal hearing was found to be extremely traumatic. The trial was found to be even more traumatic and there is evidence that it exacerbated her illness. 15 The opposition to the application is founded on delay, lack of satisfactory explanation for delay and prejudice. 16 The second defendant only complains of delay between 1994 and 2001. Even so, the delay is significant. Her claim did not come to be prosecuted for about 7 years. 17 The second defendant says that this delay has been left unexplained. In my view, that is not so. Whilst one may see shortcomings in what is offered, there is explanation. She had come to the view from her discussions with Mr O'Neill that she had no action. Further, there is medical evidence that her problems interfered with her ability to cope with living. 18 The major thrust of the second defendant's opposition is to be found in what is said to be the prejudice that flows from the delay and its contention that a fair trial cannot now take place. 19 The second defendant had not been able to serve a subpoena for production on Dr Shaw. A copy report dated 15 March 2004 from Dr Shaw (Exhibit A) shows that Dr Shaw remains available. The second defendant stresses that the generality of her reports makes it to be of importance that her clinical notes be available. The actual position concerning the availability of these notes remains somewhat uncertain. Counsel for the plaintiff has informed the court that they presently can't be found. 20 The second defendant complains of the lack of material concerning her condition immediately following the murder and for relevant periods involving inter alia the committal and the trial. The medical material suggests that her condition has been exacerbated by subsequent events (including the committal and the trial). It is said that there will be difficulty unscrambling the respective effects of the various incidents. The apparent force of these submissions loses impact in the light of the later authorities (including Annetts v Australian Stations Pty Ltd 76 ALJR 1348). 21 There will be presumed prejudice. There may be some actual prejudice. An assessment of the extent of prejudice can be a difficult task. The authorities show that fairness is a matter of degree and the concept of a fair trial is a relative one (McLean v Sydney Water Corporation [2001] NSWCA 122. After having considered the relevant circumstances I remain unsatisfied that a fair trial is unlikely. 22 The plaintiff bears the onus of satisfying the court that an extension should be granted. In my view, in the circumstances of this particular case, that onus has been discharged. 23 I am satisfied that it is just and reasonable to make an order and that an order should be made. The relevant limitation period for the plaintiff's claims is extended up to and including 21 December 2001. 24 The plaintiff claims costs. In my view, the second defendant was entitled to defend the proceedings. In my view, it is not a case in which the court should make an otherwise order. Accordingly, I order that the plaintiff pay the costs of the Notice of Motion. 25 The Exhibits may be returned. ********** Last Modified: 04/05/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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