New South Wales Supreme Court CITATION : Al-Shennag v Statewide Roads Ltd & Anor [2006] NSWSC 1226 HEARING DATE(S) : 13 September 2006 JUDGMENT DATE : 17 November 2006 JUDGMENT OF : Simpson J DECISION : Notice of motion dismissed CATCHWORDS : defamation - proposal to add four defendants - expiration of limitation period - application to extend limitation period - disability - impairment of mental or physical condition LEGISLATION CITED : Limitation Act 1969 s11(3), s14, s14B, s52, s56A Uniform Civil Procedure Rules 2005 r5.3, r28.2 Abdullah Al-Shennag v Bankstown City Council Civic Services Group [2002] NSWIRComm 150 CASES CITED : Kotulski v Attard (1981) 1 NSWLR 115 Olive & Anor v Johnstone [2006] NSWCA 21 State of NSW v Bennie [2005] NSWCA 172 Abdullah Al-Shennag - Plaintiff PARTIES : Statewide Roads Ltd - 1st Defendant Bill Woodcock - 2nd Defendant FILE NUMBER(S) : SC 20208/05 COUNSEL : MS White - 1st & 2nd Defendants SOLICITORS : Plaintiff in person Ebsworth & Ebsworth - 1st & 2nd Defendants IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST SIMPSON J Friday 17 November 2006 20208/05 Abdullah Al-Shennag v Statewide Roads Ltd & Anor JUDGMENT: Limitation Act 1969, s52 1 HER HONOUR: By statement of claim filed on 28 June 2005 the plaintiff, Abdullah Al-Shennag, claims damages in defamation against two named defendants. Those defendants are Statewide Roads Ltd and Mr Bill Woodcock. For the purposes of the present judgment I will assume the accuracy of relevant facts asserted in the statement of claim. That should not be taken to represent any finding of fact; it merely means that the issues for present determination may be dealt with on that basis. 2 The plaintiff appeared in this court unrepresented. It is apparent that he has not, for the purposes of these proceedings, ever had legal representation, and has prepared his own documentation. 3 The proceedings arise out of the publication, on 9 July 1999, of a report entitled: "INDEPENDENT ASSESSMENT OF ENGINEERING CONDITIONS PLACED ON VARIOUS PROPERTIES WITHIN THE BANKSTOWN CITY COUNCIL AREA" On the front page of the report appears a logo, containing the following letters: "SWRTM" Underneath that appears: "Statewide Roads Technical Management Limited" with an ACN identification number. 4 Also on the front page of the report, authorship is attributed to Mr Bill Woodcock. Accompanying the report (as pleaded) is a letter, again bearing the logo "SWRTM" and signed by Mr Woodcock. 5 In paragraph 9 of the statement of claim the plaintiff claims that the report, in its natural and ordinary meaning, conveyed three imputations that defamed him. It is not presently in issue that the report is capable of conveying the imputations pleaded: nor, for the purposes of the present application, that the two named defendants were involved in its publication. 6 In paragraph 4 the plaintiff sets out particulars of his training, professional qualifications and membership of professional institutes. These suggest that he has civil engineering and other advanced professional qualifications. 7 On 5 September 2006 the plaintiff filed a notice of motion, seeking an order that he expressed in the following way: "An application made by the plaintiff to the Supreme Court, pursuant to sections 56A(1 and 2), 50F, 52, of the Limitation Act 1969 , for an order to extend the limitation period of the plaintiff's action for defamation up to 9.07.09 by means of including the period of his suffering from disability over the previous years which prevented him from commencing his legal action against all the defendants within the limitation period (six years since the publication on 9.7.1999) stipulated by the Act including the Defamation Act 1974. " That notice of motion is the subject of the present judgment. 8 The true substance of his present claim does not emerge with clarity from the manner in which the order he seeks is framed. The substance of what he seeks is leave to file an amended statement of claim (with a copy of which I was provided) naming an additional four defendants. They are: · Statewide Roads Technical Management Limited (proposed third defendant) · William John Widin (proposed fourth defendant) · Nicholas Reed Young (proposed fifth defendant) · Allan John Livingstone (proposed sixth defendant) 9 It is common ground that, by reason of s14 of the Limitation Act 1969 as then applicable, a six-year limitation period applied to the plaintiff's cause of action. The time for bringing proceedings thus expired on 9 July 2005. It was in recognition of that circumstance that the plaintiff filed the notice of motion of 5 September 2006. 10 It appears that, at the time that the original proceedings were commenced, the company Statewide Roads Technical Management Limited ("SRTML") was in liquidation (or had been voluntarily de-registered). The plaintiff has since taken steps to have it restored to the register and he provided evidence to show that such an order was made on 10 August 2006. The individuals proposed to be named as fourth to sixth defendants were, at all relevant times, directors of both the existing first defendant and the proposed third defendant. 11 The plaintiff supported his notice of motion by affidavit evidence. In that affidavit, as in the notice of motion, he identified the basis of his application as: "disability: … that prevented me from commencing my legal action against all the defendants within the limitation period …" 12 Again, the plaintiff specified the legislative provisions under which he made his claim for extension of time as ss56A(1 and 2), 50F, 52 of the Limitation Act. 13 S56A of the Limitation Act applies to causes of action in defamation. It provides for an extension of the limitation period that, by s14B, applies to actions in defamation. That limitation period is one year from the date of the alleged publication. S56A obliges a court, where it is satisfied that it was not reasonable, in the circumstances, for the plaintiff to have commenced an action within the otherwise prescribed one year, to extend the period to three years from the date of publication. Subs(3) prohibits extension of the limitation period for a cause of action in defamation other than in the circumstances specified in subs(2). 14 The publication of which the plaintiff complains was, as stated above, made on 9 July 1999. Thus, even if s56A otherwise applied, it would not avail the plaintiff. The three year period expired in July 2002. 15 Further, the section plainly applies only to defamatory publications that take place on or after 1 January 2006. For this reason, also, the plaintiff is unable to rely on s56A. 16 S50F appears in that Part of the Limitation Act that applies to actions in which the plaintiff claims damages for personal injury. It also has a commencement date of 1 January 2006. This section has no application to actions in defamation. The plaintiff is unable to rely on this provision. (In written submissions filed after the conclusion of argument, the plaintiff acknowledged that neither s50F nor s56A is available to him.) 17 That leaves s52. That section relevantly provides: "52 Disability (1) Subject to subsections (2) and (3) and subject to section 53, 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, and (e) if, but for this paragraph, the limitation period would expire before the lapse of three years after: (i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or (ii) the date of the person's death, (which ever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates." 18 "Disability" is relevantly defined in s11(3) as: "(3) For the purposes of this Act a person is under a disability: (a) … (b) while the person is, for a continuous period of twenty-eight 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 physical or mental condition, ..." 19 The proper construction of s11(3) was considered by Slattery J in Kotulski v Attard (1981) 1 NSWLR 115. His Honour relevantly said: "According to the Shorter Oxford Dictionary to 'impede' means to obstruct in progress or action; to hinder or to stand in the way of. 'Substantially', in my view, does not mean trivial or minimal, neither does it mean total ... 'Mental condition' which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings. It seems to me that the expression 'mental condition' is meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment." 20 His Honour further held that: " …it is a relevant matter, in the consideration of the question raised … to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action." This approach was endorsed by the Court of Appeal in State of NSW v Bennie [2005] NSWCA 172 and in Olive & Anor v Johnstone [2006] NSWCA 21. 21 In Bennie the plaintiff, who was legally represented, had issued a statement of claim out of time. The statement of claim was met by a notice of motion filed by the defendant to strike out the statement of claim as statute barred. That prompted the plaintiff to file a notice of motion seeking an extension of time to commence proceedings. 22 The Court of Appeal observed that, under s52, no question of discretionary extension of time by leave arises; if the s52 criteria are met, then the running of the limitation period is, by reason of the section, suspended. 23 The proceedings at first instance in Bennie, and the documentation prepared in respect of the appeal, failed to recognise that. The Court of Appeal held that, in circumstances such as existed in Bennie, and are relevantly apposite to the present case, the appropriate way for the issues to be determined is for a statement of claim to be filed, for the defendant to plead the statute of limitations, the plaintiff to reply relying upon s52, and for the s52 issues to be determined as a separate question, pursuant (under the current legislative regime) to UCPR 28.2. That course has not been followed in the present case. 24 Although I was referred to Bennie, the procedural issues were not raised. Whether this was out of an appropriate recognition of the plaintiff's unrepresented status, or for some other reason, does not matter. It could, however, raise some complications. The running of the limitation period is suspended only for the period of the disability and for three years thereafter. If the plaintiff were to be successful on the s52 questions the proceedings could be formalised, in accordance with Bennie, by the filing of the statement of claim, the filing of a defence pleading the limitation period, and the rejection of that defence. That, however, is unnecessarily cumbersome, and likely to generate unnecessary costs. An alternative, simpler, procedure would be to make a declaration as to the plaintiff's disability, and its extent and duration. 25 I propose to deal with the substantive issues. Should there be any need for procedural regularisation, that can be achieved after delivery of these reasons. 26 The plaintiff's affidavit evidence concerning his asserted disability was to the following effect. He began by making some general assertions about the effect upon his credibility, character and reputation of the publication of the report. This extended, he deposed, to his work relationship with his employer. 27 He went on to depose that between July 1999 and the date of termination of his employment (which he said was on 12 May 2000) he developed or had aggravated many health problems and disability symptoms. He said that between 12 May 2000 and 26 June 2001 these problems and disability symptoms continued to increase and be aggravated due to his continuous recollections of his treatment by his employer. He said as a result of the disability symptoms and health problems doctors, including those of Centrelink, granted him a disability support pension. He annexed to his affidavit an "income statement" from Centrelink confirming that he is in receipt of such a pension. 28 He said that he had had many medical examinations, including ultrasound and angiogram medical examinations of his heart in July 2000, which did not indicate heart disease. He said that in the opinion of his treating doctors, his health problems and disability symptoms were aggravated and complicated by his work related distress, which, he said, resulted from and was aggravated by the defendants' "defamatory actions" including the treatment he received at the hands of his employer. He said that by 14 April 2002 he had developed additional symptoms, including deep depression. Again, he said that he suffered from these symptoms due to continuous recollections about what had occurred. His symptoms included depression, very bad shortness of breath, drowsiness, poor vision, severe lack of energy, lack of concentration, high blood pressure, nausea, and chest pains. He said that in the early morning of 14 April 2002 he was taken by ambulance to a hospital and remained there for a few days suffering very badly from these symptoms. He underwent medical examination of his ears but this disclosed no infection. 29 He said that by May 2003 he had developed aggravated heart disease of a rare kind. By November 2003 his symptoms were exacerbated and he was vomiting blood when distressed or depressed, particularly when he remembered and "pondered over" the treatment he had received. 30 At the beginning of 2004, suffering severe deterioration of his health, he travelled to Germany for "life saving treatment". He said he there spent several months, undergoing heart surgery on two occasions, one of which failed, and one of which was successful. 31 On his return to Australia in about June 2004, still suffering from symptoms, he underwent open-heart surgery (on 1 October 2004). He said that, at the date of swearing his affidavit (5 September 2006), he was still recovering from this surgery and still suffering from the symptoms described. He deposed: "11 Due to my above mentioned health and disability symptoms over the past several years and due to my difficult circumstances including financially after losing my job and my failure in my continuous attempts to find employment with other employers appropriate to my skills qualifications, and health due the injury to my reputation and employability as professional engineer by the said defendants' defamatory actions against me, therefore during the previous years I was unable to commence my legal action for defamation against the defendants and I have been unable to afford the costs of a legal representative who might assist me to commence such legal action within the time limit." He said that despite his condition and symptoms he was able to prepare and file the statement of claim. He did this just before the end of the statutory time limit. He said that he could not include SRTML or its directors because he could not discover the directors' identities and details within the time available to him. During the preparation of his statement of claim he discovered that SWRTML had been deregistered. 32 The plaintiff annexed a number of medical reports to his affidavit. I will outline these in chronological order. 33 The first is a report Dr Kenneth Horvison, an ear, nose, throat and allergy specialist. Dr Horvison could find no "labyrinthine" cause for dizziness and considered stress was largely involved in the production of the plaintiff's symptoms. 34 A certificate of a general practitioner, dated 6 April 2002, diagnosed the plaintiff as suffering from: "peripheral labryinthitis (sic), of which stress is a contributing factor". 35 The general practitioner certified the plaintiff as unfit for work for 14 days from 14 April 2002 to 28 April 2002. 36 The next report was that of a Dr Lothar Faber, a German cardiologist. Dr Faber certified that the plaintiff had been treated as an outpatient in his institution on 29 January 2004, and an inpatient from 2 February to 5 February. He confirmed that a surgical attempt that was made on 3 February was not completed and identified surgical myectomy as the only feasible alternative. 37 On 7 April 2004 Professor Horst Kuhn, also of Germany, certified that the plaintiff suffers from a severe cardiac disease (very advanced stage of hypertrophic obstructive cardiomyopathy). 38 There is one page of a report from the Royal Melbourne Hospital dated 1 October 2004, which shows that the plaintiff underwent what appears to have been routine bypass surgery. This report appears to be an internal document factually recording the diagnosis, indications for surgery, operative findings, and operative procedure. 39 There is a report from Dr Richard Dunn, a consultant cardiologist, dated 22 August 2006. Dr Dunn diagnosed: "1. chest pain 7/00, positive stress test, normal coronary arteries 2. hypertrophic cardiomyopathy 5/03 … 3. hypertension. 4. major depression. 5. alcohol septal ablation 4/04, Professor Kuhn, Germany. 6. post ablation 7/04, severe asymmetric septal hypertrophy … 7. surgical myectomy of left ventricular outflow tract, 10/04. Mr Skillington, Melbourne." Dr Dunn said that he had reassured the plaintiff that his cardiomyopathy was stable, with no progression in the preceding six months. He said that he continued to be depressed about his condition and related this to his previous work problems. 40 Finally, there are two reports of a psychiatrist, Dr Jean Lennane. The first is dated 15 November 2005 and is a letter directed to the Workers' Compensation Commission of NSW. Dr Lennane said she had been treating the plaintiff for a work related psychological disability (major depression) since November 1999. She said: "As a result of this disability, his current memory, concentration and ability to speak clearly are likely to be impaired if he becomes intensely anxious." 41 Obviously anticipating a hearing in the Workers' Compensation Commission, Dr Lennane asked for allowances to be made for the plaintiff in the event of his becoming distressed. Dr Lennane also provided a hand written report, addressed to: "To Whom It May Concern" dated 25 July 2006. Dr Lennane again said that she had been treating the plaintiff since 1999 for depression and post-traumatic stress disorder. She said his difficulties had been exacerbated since 2003 by the development of a serious heart condition but that his cardiac symptoms had slowly improved since the surgery. She said that that condition greatly complicated the treatment of his depression as most antidepressant medication cannot be used in people with heart problems. Dr Lennane then said: "All these problems have meant that he has been unable to undertake legal action during the last several years; and because he has had no income, he has been unable to pay for legal help." 42 The plaintiff gave oral evidence in the proceedings before me. He was cross examined, principally about his participation over the years in various legal proceedings, and his other educational activities. 43 While it would not be surprising to learn that, following heart surgery, the plaintiff suffered some period of convalescence, impairing his capacity to live his ordinary life and go about his ordinary business, there is, in all of the evidentiary material, only one sentence which would suggest that the plaintiff was under a disability as defined in s11(3) of the Limitation Act. (I distinguish the material principally classified as evidentiary from assertions of fact contained in written submissions proved by the plaintiff.) That one sentence is the sentence in Dr Lennane's report which I have extracted in paragraph 43 above. It is, however, belied by the objective evidence. Most particularly, the plaintiff was able to bring the existing proceedings against the existing two defendants. His explanation for not naming the proposed individual defendants in the original statement of claim was that he could not identify the directors; and his explanation for not naming the proposed corporate defendant in the original proceedings was that he discovered that it had been deregistered. In addition to the present proceedings, he brought unfair dismissal proceedings in the Industrial Relations Commission of NSW; he sought an extension of time to appeal against the adverse result of those proceedings, and was successful in this; he then sought leave to appeal and conducted his own appeal over a period of four days in 2002. The judgment in those proceedings (Abdullah Al-Shennag v Bankstown City Council Civic Services Group [2002] NSWIRComm 150) was in evidence. I have read it. It does not suggest that the plaintiff was in any way impeded in the conduct of that application for leave to appeal. 44 I appreciate that, under the weight of this litigation and unrepresented, the plaintiff may have felt overburdened, and even under pressure. But that is not the same thing as being (to adopt the lower of the two tests posed by s11(3)) substantially impeded in the management of his affairs in relation to the cause of action by reason of decrease or impairment of his physical or mental condition. 45 Moreover, as the plaintiff has set out in the statement of claim, in 1999 he completed a Postgraduate Diploma of Building, Applied Science at the University of Western Sydney, and in 2000 he completed a Master of Applied Science, Construction Management, with credit, from the University of Western Sydney. The plaintiff said, in cross examination, that he commenced that degree in July 1998, and that the University had given him special consideration and allowed him additional time to complete it. 46 In these proceedings, on 7 June 2006, the plaintiff filed a notice of motion seeking preliminary discovery pursuant to UCPR 5.3. To this he appended under the heading "Orders/ Directions Sought" a considerable volume of information and argumentative material evidencing substantial research and preparation. 47 On the evidence I am unable to find that, for a continuous period of 28 days or more the plaintiff was incapable of, or substantially impeded in, the management of his affairs in relation to the present cause of action by reason of any disease or any impairment of his mental or physical condition. 48 At the conclusion of the submissions of counsel for the defendant, the plaintiff expressed a wish to put his reply in writing. He wished to have the opportunity to read the transcript of counsel's address. He was given leave to file his submissions in reply in writing and he did so. 49 Not surprisingly, much of what was contained in the written submissions went to factual matters (much of it restatement of what had previously been said) rather than argument on the basis of the evidence already adduced. 50 Even so, there is nothing in that material that alters the view I have expressed above. 51 There is, however, one matter of concern. Included in the material provided by the plaintiff was a further report of Dr Lennane dated 21 September 2006. The plaintiff did not seek, and was not given, leave to supplement the evidence before the court. To take this report into account would be to do an injustice to the defendant. I note, however, that Dr Lennane repeated the paragraph I have already extracted. For reasons I have already given, I cannot accept that statement as accurately reflecting the reality. 52 Accordingly the notice of motion must be dismissed. ********** 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.