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:- (i) A cause of action in negligence arising from breaches by the University of a duty to provide the plaintiff with a safe place of study and to provide the plaintiff with a course of study permitting the plaintiff to complete the requirements necessary for the award of the degree of Bachelor of Social Work. (ii) A cause of action in contract arising from breaches by the University of a contract between the plaintiff and the University, under which the University was bound to provide the plaintiff with a safe place of study and to provide the plaintiff with a course of study permitting the plaintiff to complete the requirements necessary for the award of the degree of Bachelor of Social Work. (iii) A cause of action in defamation based on the publication of the email written by Gaha on or about 26 August 1999. 15 The University has not yet pleaded to the amended Statement of Claim. 16 After the University was served with the amended Statement of Claim, an application was made by the University for an order that the plaintiff's proceedings be summarily dismissed or, alternatively, for an order that the amended Statement of Claim be struck out. The University's application came before Harrison AsJ. In a judgment delivered on 22 June 2005 Harrison AsJ declined to make either of the orders sought by the University. However, on the basis that by the time the original Statement of Claim was filed on 18 October 2004, the causes of action in negligence and breach of contract for damages for personal injury would have become statute-barred, unless on some ground the running of the limitation periods fixed by the Limitation Act 1969 had been suspended, Harrison AsJ directed that the plaintiff file and serve any application for an "extension of time" under the Limitation Act. An application for an order under s 52 of the Limitation Act was filed by the plaintiff on 21 November 2005 and this is the Limitation Act application to be determined by me. 17 It is convenient at this stage to refer to certain provisions of the Limitation Act which are applicable to the causes of action pleaded by the plaintiff in the amended Statement of Claim. 18 Under s 18A of the Limitation Act a cause of action founded on breach of duty for damages for personal injury is not maintainable, if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrued to the plaintiff. 19 It may be that the causes of action in negligence and for breach of contract first accrued to the plaintiff on 26 August 1998. On any view, the causes of action had accrued by the time the plaintiff ceased to be a student at the University in the year 2000. Accordingly, it is clear that the causes of action in negligence and for breach of contract, having been first brought by the filing of the original Statement of Claim on 18 October 2004, well after the expiration of the limitation period of 3 years running from the date on which the causes of action first accrued to the plaintiff, would be statute-barred, unless on some ground the running of the limitation periods was postponed. 20 It was accepted by counsel for the University that the plaintiff's cause of action in defamation, to which a 6 year limitation period applies, is not statute-barred. 21 In the Limitation Act application Mrs. Simundic relied on s 52 of the Limitation Act, which, so far as is relevant, provides:- "(1) ……… where: (a) a person has a cause of action, (b) the limitation period fixed by this Act for the cause of action has commenced to run, and (c) the person is under a disability In that case: (d) the running of the limitation period is suspended for the duration of the disability …… …." 22 In s 11(3) of the Act it is provided that::- "for the purposes of this Act a person is under a disability: ………………………………………………………………… (b) while the person is, for a continuous period of 28 days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (i) any disease or any impairment of his or her …mental condition." 23 The plaintiff's case on the Limitation Act application is that for much, if not all, of the period between 26 August 1998 and 18 October 2004 she was substantially impeded in the management of her affairs in relation to the causes of action in negligence and breach of contract by reason of an impairment of her mental condition. 24 The evidence on the Limitation Act application was voluminous, much of it of only marginal, or no, relevance to the application. 25 The application was supported by a lengthy affidavit by the plaintiff and the plaintiff was cross-examined by counsel for the University. Many documents were tendered by both parties. Most of the documents tendered by the defendant were contained in a volume described as the defendant's tender bundle. 26 I do not propose to attempt in this judgment to summarise all of the evidence admitted on the hearing of the applications. It is, however, useful to set out some of the facts which are clearly established by the documentary evidence and some of the allegations made by the plaintiff, including when the allegations were made. 27 On 26 August 1998 and again on 28 August 1998 Ms Flynn allegedly spoke critically and abusively about the plaintiff in the presence of the plaintiff and others. 28 On 30 October 1998 the plaintiff sent an email to Ms Gaha, which contained a detailed description of what the plaintiff alleged Ms Flynn had done and said on 26 August and 28 August. The plaintiff requested that her "placement liaison person" (Ms Flynn) be changed. 29 In paragraph 2 of section 1 of her affidavit of 21 November 2005 the plaintiff said that:- "half year later on my second placement (that is, half a year after late 1998) the full impact of what Ms Flynn did to me emerged and my placement at Centre Link was terminated. Dep. of (Social Work) realised that the interaction with Ms Flynn had serious impact on me." 30 On 4 August 1999 the plaintiff had a meeting with Professor English, the Deputy Vice-Chancellor of the University. The plaintiff told Professor English that the abuses she had experienced from Ms Flynn had had a great impact on the plaintiff's health. Professor English suggested that the plaintiff undergo counselling and referred the plaintiff to Ms Bryant, the Director of the University's Counselling Services. The plaintiff was interviewed by Ms Bryant and Ms Bryant diagnosed the plaintiff as having post traumatic stress disorder. 31 In a letter dated 8 September 1999 the plaintiff requested Ms Bryant to provide "regular and on-going weekly counselling to overcome the verbal and emotional abuse I experienced with Ms Lianne Flynn last year". 32 On 13 September 1999 the plaintiff wrote a letter to the University Grievance Officer of the University of Newcastle, lodging two formal grievances against the Head of the Department of Social Work, complaining that she had been failed in her field work course without receiving procedural fairness and that her failure in the subject was itself unreasonable. In her letter the plaintiff supplied detailed reasons for her complaints. 33 In November 1999 the plaintiff sent an email to the Dean of Students at the University of Newcastle saying:- "I want to report emotional and verbal abuse I went (through) in social work department which resulted in TRAUMA and affected my performance on placement to SOMEONE in this University who will give me LEGAL advice. Is there any LEGAL OFFICER for students – someone who can give legal advice and support student in the court. I've decided to take social work department to the court." 34 On 11 January 2000 the plaintiff wrote a letter to Ms Gaha, enclosing documents. In her letter the plaintiff said that "the documents which I have enclosed show clearly that I experienced trauma as a result of the interaction with Ms Flynn in September 1998". 35 On 16 January 2000 the University's Grievance Committee delivered a report of its investigation of the plaintiff's grievances against the Department of Social Work, dismissing the first complaint but upholding the second complaint. 36 On 16 May 2000 the plaintiff wrote a letter to the Dean of Students. In her letter the plaintiff said:- "I'm concerned if I turn up (to class) that Jo Gaha will humiliate me in front of everyone and I will again go through trauma. Last year she verbally abused the student 'till the point of trauma in front of all third year. I am really concerned for myself." It would seem that "the student" referred to is the plaintiff herself. 37 On 19 July 2000 the plaintiff wrote again to the University's Grievance Committee, complaining against the decision to fail the plaintiff on a field study placement at Gosford and giving reasons for her complaint. 38 On 6 August 2000 the plaintiff wrote a letter "to whom it may concern", complaining about the University of Newcastle and the Social Work Department. In her letter she said:- "From 1998 until now, I was subject of emotional, verbal and educational abuse. The individuals who are responsible for these are my lecturers/tutors from Social Work Department. I was emotionally and verbally abused until point of trauma in the office of Ms Flynn in '98 ……….. ." 39 On 18 August 2000 the plaintiff wrote a letter to the University Secretary and Registrar, setting out her complaints. 40 On 7 November 2000 the Anti-Discrimination Board received a formal complaint from the plaintiff, which was dated 13 September 2000. 41 In this complaint the plaintiff said that discrimination against her had occurred on 26 August 1998 and a few days afterwards, when she had been abused in the office of Lianne Flynn. The plaintiff complained that Ms Flynn had abused her "till the point of trauma". The plaintiff also complained that Ms Gaha had made defamatory statements about the plaintiff "to everyone". 42 In answer to a question on the printed complaint form asking "did these things happen more than 6 months ago?" the plaintiff wrote "1. FIRST ABUSE - 1998. - Did not complain – except to social work dep. and DVC (Deputy Vice-Chancellor) Prof. English. My priority was to finish degree – not to go to court. 2. EFFECT OF ABUSE – The trauma affected my life & study. I expected Social Work to take responsibility – in return they abused me further. I complain to grievance. 3. After disclosing that I went through trauma to SWRK (Social Work) Dep. I expected their help. The abuse I went through in Gosford made me realise that I deal with criminals. I took Legal Aid." 43 In answer to a question on the printed complaint form "have you done anything else to try to sort out this complaint?" the plaintiff wrote: "I contacted solicitor Ms Kim McFayden – she works for McDonald Johnson – Newcastle. She was the only one who did not want to charge me. I do not have money!! Kim told me that is unacceptable what is happened to me and that I need $15,000 for Legal Expenses. She think that I should take them to court. I DO NOT HAVE MONEY!" 44 It is apparent from documents in evidence on the hearing of the applications that in the year 2001 the plaintiff made inquiries of a large number of persons or bodies, seeking assistance in pursuing her claims and grievances against the University, including the New South Wales Ombudsman, the New South Wales District Court, the Legal Services Commissioner, the Chairman of the Inquiry into Public Education in New South Wales, the Law Society of New South Wales, the Commonwealth Ombudsman, the Commonwealth Department of Education, Training and Youth Affairs and the Supreme Court of New South Wales. Most of these persons and bodies replied to the plaintiff that her claims did not fall within their jurisdiction. 45 On 23 October 2001 the Community Assistance Solicitor for the Law Society of New South Wales wrote to the plaintiff saying that the plaintiff might consider instructing one of three solicitors firms which had been randomly selected from the Law Society's data base. In the letter it was noted that "you have addressed your concerns with a number of Newcastle University departments including the Deputy Vice-Chancellor and the former head of the Social Work Department, the National Union of Students Association, the Anti-Discrimination Board, the Belmont Police Station and a number of legal firms". 46 On 8 November 2001 the Policy and Research Officer of the Supreme Court of New South Wales sent an email to the plaintiff, which included the following paragraphs:- "I refer to your email to Mrs Nerida Johnston requesting advice in relation to difficulties you are experiencing in the course of your social work studies at Newcastle University. Mrs. Johnston has asked me to reply to you. I regret that neither Mrs Johnston nor other officers of the Registry can provide you with legal advice. I note that you have sought advice from a solicitor already. If, however, you wish to seek further legal advice or information from other sources you might wish to consider the following options …………. ." The email then set out various options, including another private legal practitioner, a Local Court Chamber Magistrate, the Legal Aid Commission of New South Wales, the New South Wales Law Society, the New South Wales Bar Association, a Community Legal Aid Centre, a Legal Information Access Centre and a Deputy Registrar of the Supreme Court. 47 I have already noted that the plaintiff's complaint to the Anti-Discrimination Board included allegations about matters occurring more than six months before the date on which the complaint was lodged and the plaintiff was asked to provide a further explanation of why she had not lodged her complaint within time. In a document dated 24 September 2002 the plaintiff supplied a detailed explanation, including the following:- "I was abused by Miss Flynn 1998 'till point of TRAUMA. I've sent you documents of what the trauma is, how it affects victims and what the consequences are. If not treated immediately, professionally it leads to mental illness. It took me whole year until DVC English decided to investigate my behaviour and I was told "you are trauma victim". It took me another year to accept that the social workers denied abuse and instead of helping me I was abused further in an effort to make me leave. Finally – accepted the truth that there is no help whatsoever I took the matter to ADB ………… ." 48 In about March or April 2003 a legal practitioner, Mr Keeley, commenced acting for the plaintiff on her complaint to the Anti-Discrimination Board. 49 In about August 2003 the plaintiff's complaint was referred from the Anti-Discrimination Board to the Administrative Decisions Tribunal. On 29 August 2003 the plaintiff swore a long affidavit with many annexures, which was filed in the Administrative Decisions Tribunal. The affidavit was witnessed by Mr. Keeley and was obviously prepared with legal assistance. 50 In February 2004 a two day hearing of the plaintiff's case took place in the Administrative Decisions Tribunal. For at least part of the hearing the plaintiff was represented by Mr. Keeley. 51 On 21 September 2004, after reserving its decision for 7 months, the Administrative Decisions Tribunal handed down a decision, dismissing the plaintiff's complaints that she had been discriminated against by the University of Newcastle. 52 In the year 2002 the plaintiff's husband instituted divorce proceedings under the Family Law Act. In the proceedings the plaintiff's husband sought custody of the couple's younger daughter. 53 The plaintiff was legally represented in the Family Court proceedings by Mr. John McFadden. On 17 February 2003 the plaintiff made a long affidavit of 170 paragraphs in the Family Court proceedings. 54 On 11 March 2003 the plaintiff's general medical practitioner, Dr. Ferguson, made an affidavit in the Family Court proceedings. In his affidavit Dr. Ferguson said that he had treated the plaintiff from time to time since 1989. In paragraphs 6, 7 and 8 of his affidavit Dr. Ferguson said:- "6. In my opinion, the respondent wife does not suffer from any mental illness or personality disorder. She has never described any psychotic episode to me and there has been no evidence exhibited to me that she suffers or has suffered any psychosis. 7. The respondent wife has suffered from a post traumatic stress disorder arising from an episode in her life when as a child she was sexually abused. She reported to me that when she told her father who the perpetrator was and the circumstances of the abuse, he did nothing about the allegations. She had described to me at various times how she has been depressed. 8. Her depression is consistent with the history she gave me. It is reasonable that she should suffer recurring symptoms from time to time but these symptoms are not such as would interfere with her ability to care for her children." 55 The only reference in Dr. Ferguson's affidavit to the plaintiff's dispute with the University of Newcastle is in paragraph 16 which stated:- "16. I became aware in the course of treating the respondent wife that she was experiencing difficulties with Newcastle University staff and she reported to me that she was not receiving any emotional support from the applicant husband who was an employee of the University." 56 On 21 March 2003 Dr. Ferguson referred the plaintiff to a psychiatrist Dr. Bruce Chenoweth. Dr. Chenoweth saw the plaintiff on 24 March and 28 March and furnished a report to Mr McFadden dated 31 March 2003, in which he said:- "I confirm that within the time that I saw Mrs. Simundic that she did not suffer from a mental illness nor a disorder, had not suffered from any form of "nervous breakdown", was not violent nor abusive in my knowing of her nor in the history that she relayed concerning her relationship with her husband and was not clinically disturbed in any meaningful way. She was not diagnosable in psychiatric terms but wanted psychotherapy to assist her understanding of events and to continue a healing process, which she perceived began with her migration to Australia …………. ." 57 In a report of 20 August 2003 Dr. Chenoweth expressed the opinion that the plaintiff had suffered a post-traumatic stress disorder as a result of being "abused verbally and pressured ………… by her supervisor who controlled whether she passed or failed". Dr. Chenoweth considered that the plaintiff displayed a number of symptoms of post-traumatic stress disorder, including being agitated and emotionally labile when she described the events giving rise to the disorder. 58 The issue I have to determine is whether the plaintiff was, for some period at least between 26 August 1998 and 18 October 1994, substantially impeded in the management of her affairs in relation to the causes of action in negligence and breach of contract pleaded in the amended Statement of Claim, by reason of an impairment of her mental condition. It could not be suggested that during any part of that period the plaintiff was actually incapable of the management of her affairs in relation to those causes of action. 59 The plaintiff submitted that between 26 August 1998 and 18 October 2004 she suffered from a post-traumatic stress disorder, from which she continues to suffer, and by reason of her post-traumatic stress disorder she was substantially impeded in the management of her affairs in relation to the causes of action. In a document headed "Application for an Extension of Time", an annexure to her affidavit of 21 November 2005, the plaintiff asserted that because of her post-traumatic stress disorder she became unable to manage simple tasks and was in such a psychological state that she could not think clearly or take any effective action. 60 For the purposes of this application I am prepared to accept, on the basis of certain evidence of the plaintiff, Dr. Ferguson and Dr. Chenoweth, that the plaintiff may have suffered a post-traumatic stress disorder, caused, at least partly, by the conduct of members of the staff of the Department of Social Work at the University of Newcastle and that the symptoms of that disorder included symptoms described by Dr. Chenoweth in his report of 20 August 2003, including agitation, emotional lability, sleep disturbance, flash-backs and intrusive memories. 61 However, I am not persuaded that the plaintiff was for any part of the period between 26 August 1998 and 18 October 2004 substantially impeded in the relevant sense by reason of the post-traumatic stress disorder or any other mental condition to which she was subject or, alternatively, I consider that the plaintiff ceased to be so substantially impeded no later than some time in the year 2000. 62 In his affidavit of 11 March 2003 sworn in the Family Court proceedings Dr. Ferguson stated that, in his opinion, the plaintiff did not then suffer from any mental illness or personality disorder, that the plaintiff had not described any psychotic episode to Dr. Ferguson and that the plaintiff had not exhibited any evidence of psychosis. 63 In his report of 31 March 2003 to the plaintiff's solicitor in the Family Court proceedings Dr Chenoweth confirmed that the plaintiff did not suffer from any mental illness or disorder, had not suffered any form of nervous breakdown and was not clinically disturbed in any meaningful way. 64 It is apparent from a number of documents of which the plaintiff was the author that she had, from a quite early stage or at least from some time in the year 2000, a clear appreciation of what she asserts was the wrongful conduct towards her of members of the University staff and of what she asserts was the impact of that wrongful conduct on her. For example, she described in detail what she alleges had been Ms Flynn's conduct towards her in her email of 30 October 1998 to Ms Gaha. 65 By August 1999 the plaintiff knew that she had been diagnosed by the counsellor Ms Bryant as having a post-traumatic stress disorder and by that time, according to paragraph 2 of section 1 of her affidavit of 21 November 2005 she appreciated "the full impact of what Ms Flynn did to me". 66 In the year 2001 the plaintiff contacted many individuals or bodies, seeking assistance in pursuing or vindicating her claims against the University. These persons or bodies included the New South Wales Ombudsman, the Commonwealth Ombudsman, the New South Wales District Court, the Legal Services Commissioner, the Chairman of the Inquiry into Public Education in New South Wales, the New South Wales Law Society, the New South Wales Supreme Court and the Commonwealth Department of Education, Training and Youth Affairs. The plaintiff's conduct in contacting these individuals or bodies demonstrates that she then had a capacity to manage her affairs in relation to her claims against the University. 67 In particular, the plaintiff made the complaint to the Anti-Discrimination Board, dated 13 September 2000 and received by the Board on 7 November 2000. In her complaint she alleged that she had been discriminated against and abused by, among others, Ms Flynn and Ms Gaha, causing her trauma. 68 In the document dated 24 September 2002 the plaintiff offered an explanation of why she had not lodged her complaint within 6 months of the matters complained of occurring. The plaintiff asserted that a year had elapsed before the Deputy Vice-Chancellor of the University had acted and because of the trauma she had suffered it had taken the plaintiff another year to accept that the Department of Social Work staff denied having abused her and were abusing her further. The implication of what the plaintiff said in the document of 24 September 2002 is that, by the time the plaintiff lodged her complaint dated 13 September 2000, if not earlier, the plaintiff was cognisant of what she alleged had been misconduct by the University staff and of the effect of that misconduct on her and she was prepared and able to take steps to vindicate herself against the University and its staff. 69 The plaintiff instructed a lawyer to act for her in connection with her complaint of discrimination, she made an affidavit in the proceedings in the Administrative Decisions Tribunal and she attended at the hearing in the Administrative Decisions Tribunal. 70 In 2002 and 2003 the plaintiff contested the divorce proceedings brought against her by her husband, she instructed a legal practitioner to act for her in those proceedings and she made a long affidavit. 71 The plaintiff asserted at the hearing that she had deferred commencing proceedings in the Supreme Court, because she had been told (semble by a Court officer) that she should be patient and wait until her case in the Anti-Discrimination Board had finished, before she commenced proceedings in the Supreme Court. There is no documentary evidence to support this assertion. I have already referred to the email from the Policy and Research Officer of the Court of 8 November 2001, which merely informed the plaintiff that Court officers could not provide the plaintiff with legal advice and notified the plaintiff of possible sources of legal advice. In the circumstances, I am not prepared to accept that any such advice as is alleged, was given by any officer of the Court. In any event, even if such advice was given, it would not be relevant to the issue I have to decide, of whether the plaintiff was substantially impeded by reason of an impairment of her mental condition. That the plaintiff may have been deterred from commencing legal proceedings by a lack of money with which to pay lawyers, while regrettable, is also not relevant to the issue I have to decide. 72 I dismiss the plaintiff's Limitation Act application. 73 The plaintiff's jury application can be readily determined. I have dismissed the plaintiff's Limitation Act application, with the consequence that, at least as matters stand, the plaintiff's causes of action in negligence and breach of contract are statute-barred. 74 The plaintiff's cause of action in defamation is not statute-barred but, as the publication of the allegedly defamatory matter took place before the commencement of the Defamation Act 2005, the law of defamation to be applied is that contained in the Defamation Act 1974 (see Defamation Act 2005, Sch 4). Section 7A of the Defamation Act 1974 prescribes what functions are to be performed by the judge and what functions are to be performed by a jury in proceedings for defamation to which the 1974 Act applies and leaves no scope for an application of the kind brought by the plaintiff. I dismiss the plaintiff's application for a jury. 75 I dismiss both of the plaintiff's applications and make an order that the plaintiff pay the defendant's costs of both applications. ********** 23/06/2006 - Date of judgment omitted - Paragraph(s) Not applicable 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.