Simundic v University of Newcastle [2006] NSWSC 563

New South Wales Supreme Court

CITATION : Simundic v University of Newcastle [2006] NSWSC 563 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 12/05/06

JUDGMENT DATE : 22 June 2006

JUDGMENT OF : James J at 1

DECISION : Both of the plaintiff's applications dismissed and an order that the plaintiff pay the defendant's costs of both applications.

CATCHWORDS : Applications by Notice of Motion - psychological injury including post-traumatic stress disorder – negligence – contract – defamation - limitation periods - management of affairs – duty of care between university and student

s 52, 18A and 11(3) Limitation Act 1969 LEGISLATION CITED : Family Law Act Defamation Act 2005 7A Defamation Act 1974

PARTIES : Vesna Simundic v University of Newcastle

FILE NUMBER(S) : SC 20372/04

COUNSEL : In Person - Plaintiff R Glasson - Defendant

SOLICITORS : In person - Plaintiff Phillips Fox - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

22 June 2006

20372/04 Vesna SIMUNDIC v UNIVERSITY OF NEWCASTLE

JUDGMENT

1 HIS HONOUR: The plaintiff in these proceedings Mrs Vesna Simundic has made two applications by Notice of Motion, an application filed on 25 May 2005 that the trial of the proceedings be with a jury ("the jury application") and an application filed on 21 November 2005 for an order under s 52 of the Limitation Act ("the Limitation Act application"). Mrs Simundic appeared in person on the hearing of the applications and has acted for herself during most of the principal proceedings. 2 The principal proceedings were commenced by the filing of a Statement of Claim on 18 October 2004. The original Statement of Claim was defective, as was at least one amended Statement of Claim. On 7 April 2005 a further amended Statement of Claim was filed, which I was informed at the hearing of the applications is the last Statement of Claim to have been filed. I will refer to this further amended Statement of Claim of 7 April 2005 as "the amended Statement of Claim". 3 It is necessary to summarise some of the main allegations made in the amended Statement of Claim. 4 In the amended Statement of Claim it is alleged that the defendant, the University of Newcastle, was the employer of a number of individuals, including, in particular, Ms Lianne Flynn, who was a lecturer in the Department of Social Work at the University (her first name is spelt in various ways in the documents which were before me on the hearing of the applications) and Ms Jo Gaha, who was the head of the Department of Social Work in the University. 5 In about 1996 the plaintiff became enrolled as a student in a degree course in the Department of Social Work. 6 In August 1998, as part of her social work course, the plaintiff undertook a field study placement at the Royal Newcastle Hospital, her supervisor being Ms Flynn. 7 It is alleged in the statement of claim that on 26 August 1998 Ms Flynn, in the presence of the plaintiff and the plaintiff's field study educator, spoke critically about the plaintiff. It is further alleged that subsequently in late August 1998 the plaintiff had a further meeting with Ms Flynn, in which Ms Flynn was "emotionally and verbally abusive towards the plaintiff". 8 The plaintiff was distressed by Ms Flynn's conduct and made complaints about it to representatives of the University. In mid 1999 a University counsellor, Ms Bryant, diagnosed the plaintiff as having a post-traumatic stress disorder. 9 On or about 26 August 1999 Ms Gaha wrote an email, which the plaintiff alleges "contained material critical of, offensive to and materially false in respect of the plaintiff". Ms Gaha or the University caused the email to be published to a number of employees of the University. 10 On or about 1 September 1999, at a meeting attended by the plaintiff, Ms Gaha and other employees of the University, an employee of the University named Ramsland accused the plaintiff of "behaving in a violent and intimidatory manner" towards an employee of the University. 11 On 17 August 2000 there was a further meeting, at which the plaintiff, Ms Gaha and other students of the University were present, during which Ms Gaha was "abusive and accusing" of the plaintiff. 12 The plaintiff ceased to be a student of the University in the year 2000, without having obtained a degree in Social Work. 13 The plaintiff alleges in the amended Statement of Claim that she suffered various kinds of psychological injury including post-traumatic stress disorder, "as a consequence of trauma suffered by the plaintiff in her dealings with the University, Flynn, Gaha and Ramsland". 14 In the amended Statement of Claim the plaintiff claims that the conduct in which she alleges the University and its employees engaged gave rise to three causes of action, namely:-