New South Wales Supreme Court CITATION : FD v State of New South Wales [2006] NSWSC 1407 HEARING DATE(S) : 28-29/9/05, 28/2/06, 12/04/06, 4-5/10/06, 1/12/06 JUDGMENT DATE : 18 December 2006 JUDGMENT OF : Smart AJ at 1 DECISION : See para 153 CATCHWORDS : Extremely difficult plaintiff's case - despite mistakes circumstances not warranting costs orders against solicitor personally - Order that the State pay the Centre's costs of defending plaintiff's claim not warranted Civil Procedure Act 2005 (CPA) LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 NSW Limitation Act 1969 NSW Supreme Court Act 1970 Bullock v London General Omnibus Co 1907 1 KB 262 Doonan v Beacham (1953) 87 CLR 346 Goldsworthy v Bricknell 1987 1 Ch 378 Gould v Vaggelas (1983-1985) 157 CLR 215 CASES CITED : Hong v A & R Brown Ltd 1948 1 KB 515 James Hardie & Coy Limited v Seltsam Pty Limited (1998) 196 CLR 53 Johnsons Tyre Foundry Pty Ltd v Maffa Corporation (1978) 77 CLR 544 Mummery v Irvings Pty Limited (1956) 96 CLR 99 Sanderson v Blyth Theatre Company 1903 2 KB 533 PARTIES : FD v State of New South Wales & Armidale District Women's Centre Incorporated FILE NUMBER(S) : SC 20584/02 Mr D Jordan for The Centre COUNSEL : P Menzies QC & Mr G Young for the State M Williams SC & Mr T Hickey for Ms Waters (solicitor for FD) Kennedys for The Centre SOLICITORS : I V Knight, State Crown Solicitor for the State Abbott Pardy & Jenkins for Ms Waters IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SMART AJ Monday, 18 December 2006 20584/02: FD V STATE OF NEW SOUTH WALES (the State) & ARMIDALE DISTRICT WOMEN'S CENTRE INCORPORATED (The Centre) JUDGMENT 1 The Centre seeks an order that Penelope Waters, FD's former solicitor pay the Centre's costs (or alternatively indemnify FD for the Centre's costs) thrown away due to the vacation of the hearing date of 4 April 2005 and/or by the adjournment of the hearing of the Notice of Motion relating to the adjournment of the Centre's application on 29 September 2005 pursuant to SCR Pt 52A, r 43 and/or section 99 of the Civil Procedure Act 2005 (CPA). 2 The Centre also seeks an order that the State pay the Centre's costs of the proceedings save for those mentioned above. 3 The parties took the view that despite the different wording of the provisions there was no relevant distinction for the purpose of these proceedings. SCR Pt 52A r 43(1) provides that where costs are incurred improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default and it appears to the Court that a solicitor is responsible (whether personally or through a servant or agent) the Court may direct the solicitor to indemnify any party other than the client against costs payable by the party indemnified. Rule 43(2) sets out examples of default. See also s 76C of the Supreme Court Act 1970. 4 Section 99 of CPA applies if it appears to the Court that costs have been incurred by the serious neglect, serious incompetence or serious misconduct of a legal practitioner or improperly or without reasonable cause in circumstances for which a legal practitioner is responsible. The Court may by order, direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party. The History 5 FD was born on 24 June 1976. She maintains that she was sexually abused between 1978 and 1990, that is between the ages of 2 and 14 by her father. On 27 August 1990 she made a complaint to her school counsellor. That day her father was interviewed by personnel from the Department of Community Services (DOCS) and made some limited admissions. By November 1990 DOCS had closed its file. However, FD did not leave the family home until 26 October 1993. During the period from September 1990 to late 1993 relatively little happened. In the circumstances which prevailed, including the attitude of FD and her parents, DOCS felt that there was little that the Department could and should do. In late 1993 after she had left home and was living with another family she claimed that the male of that family had sexually assaulted her. 6 About late 1993/1994 DOCS referred FD to The Centre for treatment, including expert counselling. 7 FD received counselling from Ms Kim Kilpatrick of The Centre from February 1994 and from Ms S Roseveare of The Centre from 26 September 1995. The counselling was intense and it is doubtful if it did any good based on the notes of the counsellors, the Centre's records and the medical reports. Dr R Milton in a report prepared for the State thought that the counselling given was harmful and based on the counsellors' agenda rather than a careful analysis of FD's needs. 8 On 17 August 1998 a large porencephalic cyst was found in FD's brain. She was admitted to various hospitals and psychiatric units on many occasions. She expressed suicidal thoughts. Her care and management were far from easy. 9 The plaintiff came under the care of Dr M Williamson who diagnosed FD as suffering from Dissociative Identity Disorder (DID). Dr Milton disagreed with this diagnosis. Later in May 1998 FD complained to DOCS about their lack of intervention. On 27 July 1998 FD received a letter of apology from DOCS. 10 In December 1999 FD sued the State alleging negligence by DOCS in her management and treatment consequent upon taking over from her local school counsellor a case of alleged physical and sexual abuse. She alleged that DOCS closed her case prematurely without having properly investigated her allegations. 11 In January 2002 consequent upon the earlier receipt of Dr R Milton's detailed report of September 2000 the State sought to cross-claim against The Centre. The State's case was based on Dr Milton's detailed report. As might be expected FD sought to add The Centre as a defendant relying upon the contents of the report of Dr Milton. 12 By its cross-claim of 5 March 2002 the State joined The Centre as a cross-defendant alleging that The Centre had a duty to give professional beneficial and therapeutic assistance through the counselling provided to FD and failed to do so and thus was negligent in the provision of services to FD. 13 On 7 March 2002 the plaintiff filed an Amended Statement of Claim joining The Centre. As against the State FD pleaded that the State via DOCS owed a duty of care to FD to ensure that she did not suffer any physical or emotional harm or mental or physical injury or the exacerbation of mental or physical injury at the time of and subsequent to the making of the complaint of ill-treatment by the plaintiff to DOCS and that the State was in breach of that duty and was negligent and/or in breach of its statutory duty to FD in the investigation of FD's complaint of abuse and ill-treatment. The particulars supplied allege that DOCS took no adequate or suitable action to protect FD, failed to properly investigate FD's allegations and failed to ensure that FD received appropriate counselling. In all some twenty particulars of neglect and default were supplied. In combination they allege a failure to manage and ensure that FD was adequately managed and treated after being sexually abused. It was alleged as against The Centre that it failed in its duty to give professional, beneficial and therapeutic assistance and so was negligent in the provision of services to FD. Detailed particulars were given. Amongst other matters, FD alleged that The Centre failed to ensure that she was counselled by a psychologist or a psychiatrist and instead provided long term counselling by a person who was neither. Further, she alleged that The Centre provided counselling in a setting which failed to respect her wishes and was intrusive and suggestive. 14 FD alleged that she developed a psychiatric illness in the form of Dissociative Identity Disorder (DID). This was her case against the State. 15 FD also alleged that there was introduction in the counselling by The Centre of the concept and subsequent leading of FD to the belief that she suffered from DID with consequent suffering, treatment, and hospitalisations. Allied with this was the introduction in the counselling by The Centre of the concept and subsequent leading of FD to the belief that she was sexually abused by her family of origin and the consequent loss of their support. This was FD's case against The Centre. It was based upon the detailed report of Dr R Milton. This was also the case of the State against The Centre. 16 There was a conflict in the psychiatric evidence. Dr M Williamson, a psychiatrist, treated FD from 1998 to 2001 and again from January 2004. (He had been seriously ill for a substantial period and did not see FD in 2002 and 2003). Dr Williamson stated that she suffered from DID and maintained that was the correct diagnosis. He rejected Dr Milton's views. In his report of 4 May 2005 Dr Williamson described FD as, "the most difficult and the most damaged person I have ever seen or dealt with over twenty years of psychiatric practice" and the most extreme example of DID he had ever seen. 17 Dr Williamson explained that FD has one identity with some dissociated or split off parts. Each of these parts is not a personality nor a person, but is part of the psyche. He continued: "The identity of the person remains the same no matter what the person may call himself or herself and no matter what alter appears with her respective name [eg. Sarah, Katrina, Mary]. The nature of this disorder, which is in almost all cases shown by research to be caused by very severe, early, repeated, invasive traumata, is that the alters have been split off from consciousness by overwhelmingly terrifying experiences. So that part of the psyche is 'frozen' at the developmental stage, with those specific memories." 18 Dr R Milton concluded that FD did not suffer from DID but there was evidence that she had a congenital condition. Dr Milton thought that FD had been subjected to inappropriate counselling for many years; accepting counselling because she was vulnerable. In the process she began to frequently feel suicidal, required many hospital admissions and came to believe and act as though possessed by separate entities. Dr Milton thought that it was the incorrect counselling which caused her behaviour. Dr Milton undertook a detailed review of the counselling notes and the various medical and psychiatric reports. Dr Milton placed emphasis upon: (a) the large brain cyst (b) FD telling her therapist at a sexual abuse centre that from an early age she suffered auditory hallucinations. 19 Dr Milton noted that during her stays in hospital FD sometimes showed signs of psychosis and was treated with antipsychotic drugs, sometimes with effect, sometimes not. Sometimes she manifested delusions. She continued to complain of auditory hallucinations. Dr Milton thought that there might be an organic background to FD's symptoms but added "her therapist and various psychiatrists, compelled by a need to interpret issues in terms of sexual abuse, regarded these as part of [DID]". 20 Dr Milton thought it was necessary to pay careful attention to the documents because it was difficult to obtain a coherent history from FD. She "claims from time to time to be inhabited by a different entity from the one just speaking. The new identity claims not to know what was said by the previous one." This limits the information which can be obtained. Dr Milton noted: "Dr Williamson's letter of 9 June 1999 referred to allegations of sexual abuse on 27 August 1990 and 15 August 1991, which [FD] refused to confirm. The first two were when she was aged 14 and 15 years and related to alleged abuse by family members. Another incident was in 1993 and occurred after she left home and was accommodated with a family …" 21 The Director of Public Prosecutions, after evaluating her complaint decided not to proceed. Dr Milton wrote that it was unclear when FD first began therapy with the women's sexual assault clinic but it appeared to be in late 1993 or early 1994 22 After reviewing the counselling notes and noting that they did not deal with FD's work, current relationships, hobbies, residential problems and her activities, Dr Milton commented that the constant focus was the need to recover memories and express feelings in relation to past sexual abuse and that the therapists tried to superimpose the concept of DID, doing so by suggestions of a covert or overt kind leading FD to feel it was essential to discover other personalities within herself. Dr Milton stated that the counselling notes were incomplete and not in date order. Some of the letters written by FD were revealing. 23 Dr Milton further wrote: "I believe she was subtly and perhaps unwittingly educated into the way she should behave in order to manifest [DID] and I believe she complied with those implicit requests and is now thoroughly convinced that she is afflicted with this condition and behaves accordingly. I do not believe that to be in her interest. The most likely explanation for [FD's] current unusual behaviour is that it is a direct result of inappropriate counselling." 24 After undertaking a detailed study of the available records and referring to parts of them, Dr Milton was critical of the counselling provided by Ms K Kilpatrick and by Ms S Roseveare, Dr Milton thought it had led to a deterioration in FD's condition and a disastrous situation. 25 Dr Milton thought that Dr M Williamson's initial report of 9 May 1998 appeared to be based on limited or even incorrect information combined with the history given by FD which was much influenced by Ms S Roseveare's views (which Dr Milton thought were incorrect). Dr Milton was also critical of the later report of Dr Williamson of 19 October 1999. 26 In his review of the available records Dr Milton wrote that the material from the hospital was generally well organised and dated but that from the women's sexual assault clinic (The Centre) was disorganised and not always dated. 27 FD told Dr Milton on 20 July 2000 at the start of the consultation, "I've been diagnosed with [DID]. At times I don't believe I have this disorder. If I have this disorder the others would be parts of me, and I don't believe that's the case." She explained that "others" meant "those who have been abused". She was referring specifically to her other entities. She told Dr Milton that she started counselling in 1994, that she (they) did not know anything about multiple personalities until 1996 when Ms S Roseveare said, "How's it feel to have multiple personalities" and that they "didn't really know till we saw Dr Williamson in 1998." FD used various entities when she spoke to Dr Milton. She told Dr Milton that she saw Ms Kilpatrick for 18 months but did not achieve anything.. 28 FD told Dr Milton her plans for the future were "to get better" and "not to be in pain any more". After referring to various aspects of FD's mental state examination Dr Milton wrote: "Her abstract thinking ability was somewhat limited, not consistent with her vocabulary and other indications of basic good intelligence. She presented as a bespectacled, rather impassive, slim, brown-haired young woman, reserved in what she said. She assumed different identities but these did not seem very different, if at all, from one another. There was no obvious formal thought disorder. There was no evidence of depression or elation or hallucinations or delusions. She seemed literal and was often very guarded." 29 Dr Milton thought that it would be impossible to obtain reliable information as to the alleged sexual interference with FD as a child. He attributed this to the nature of the counselling which he detailed. Dr Milton wrote: "Current knowledge of illicit activity is limited to her father admitting an impropriety when visited by representatives of Department of Community Services following complaints made by [FD] when she was aged 14 years. It seems significant that both parents raised no objection to DOCS making visits to the home and that they eventually asked DOCS to take their daughter into care. Given various aspects of unusual mental phenomena in [FD], it is possible that there was a continuing abnormal mental condition which made management difficult. Much of the information in regard to sexual abuse seems improbable. I found it difficult to accept that [FD's] mother cleaned out her vagina with a toothbrush three or four times a week to prepare her for sexual abuse by her father. The accounts of various ceremonial forms of abuse are difficult to accept. [FD] currently acts in such a fashion as to suggest she would not be capable of giving evidence acceptable in court. In particular, that cross-examination would not be possible because, if faced with questions she did not want to answer, [FD] is likely to manifest another of her entitles." 30 Dr Milton wrote that most psychiatrists "do not reject the notion of multiple personality but consider it to be rare", that they "do not reject the concept of major forms of dissociation outright but are cautious about making the diagnosis, particularly in a global fashion, (as in [DID])", and that the active promotion of the diagnosis of DID has caused harm generally. He believed that that applied in this instance. 31 After an extensive discussion of the problem and the expression of his reasons, Dr Milton concluded: "I do not believe the diagnosis of [DID] to be justified." Dr Milton, a very experienced psychiatrist, reiterated that the counselling [FD] was given had serious adverse effects. Dr Milton wrote: "My concern is that a person who almost certainly does not have such a disorder [DID] was induced to think she had it and to act accordingly. She is now in the process of reinforcing that belief by attending clinics where doctors believe in the condition and interpret their patients' behaviour accordingly. The process seems likely to continue interminably and with poor results for [FD] and "I believe inappropriate counselling impeded [FD's] education and her ability to obtain a position in accord with her ability. Despite her belief that she is possessed by a variety of entities, she is nonetheless capable of working. I think it probable there is an underlying mild chronic schizophrenic illness which accounts for her feelings of emotional distress. Unhappiness in her family could be a contributing factor, but accurate details in that regard are difficult to define, given what happened in regard to counselling and the various accusations and claims for compensation." 32 This is perhaps an unduly long summary of Dr Milton's report, but a study of that report reveals that it is based on the counselling notes, the hospital notes and an analysis of the medical reports and is closely argued. Prima facie it points to a case of negligent counselling by The Centre. It may be wrong. However, it formed the basis of the State's cross-claim and the basis of [FD's] case against The Centre. I have not overlooked Dr Williamson's detailed reply to Dr R Milton nor Dr Phillips' rejection of Dr Milton's criticisms and opinions. 33 Dr Williamson expressed the view that in all probability FD's DID was caused by the early sexual assaults upon her, not by the behaviour of the State. Mr Freckleton, the counsel who had been retained on behalf of FD and who had seen her over the years and who eventually gave advice on the merits, thought that Dr Williamson's opinion undermined FD's case against both defendants. 34 I agree with counsel that Dr Williamson's opinion made it difficult for FD to succeed against the State. As to her case against The Centre, much depends on how much weight is attached to the allegedly faulty and inadequate counselling FD received if it be found that she probably does not have DID. That would need to be enlarged upon at the hearing. FD was a very damaged person. Was part or possibly the whole of the damage sustained due to the counselling received at The Centre and was that counselling inadequate or faulty? A possible outcome was the Court holding she had been assaulted as she alleged but the damage suffered by her was partly due to inadequate and faulty counselling. There is material to support the view that FD had a stronger case against The Centre than DOCS. One feature of the case against The Centre was the substantial support that could be gained from The Centre's counselling notes and records. 35 The claim against The Centre was not as vulnerable to a limitation defence given the period of the continuing counselling. 36 This brief outline indicates that this was going to be a difficult case to conduct and maintain on behalf of FD. Her solicitors were hamstrung by a lack of money with which to conduct the case. There was no money to pay for detailed medical reports, for example, reviewing all the relevant records. I doubt if counsel for the plaintiff at the hearing would have wanted to take Dr Williamson through the records of The Centre but counsel for the State would have wished to cross-examine Dr Williamson upon them. 37 Before recounting more of the history I propose to diverge and deal with an argument of The Centre based on the particulars supplied by FD's solicitors. 38 In her amended statement of claim of 7 March 2002 FD firstly set out her case against the State in negligence and breach of its statutory duty and then set out her case against The Centre. Paragraph 15 of the amended statement of claim reads: "As a result of the negligence and/or breach of duty by the First and/or Second defendant the plaintiff suffered personal injury loss and damage. Particulars of Injury (a) The plaintiff developed a psychiatric illness in the form of a Dissociative Identity Disorder. (b) Introduction of concept and subsequent leading of the plaintiff to the belief that she suffered from Dissociative Identity Disorder with the consequent suffering treatment and hospitalisations. (c) Introduction of concept and subsequent leading of the plaintiff to the belief that she was sexually and physically abused by her family of origin and the consequent loss of their support, love and affection." 39 The plaintiff supplied the same particulars under the heading "Particulars of Disabilities and Impairments". It is apparent from the amended statement of claim that the plaintiff is endeavouring to set up two cases, one against the State and one against The Centre. In substance they are alternative cases. Particular (a) relates to the case against the State and particulars (b) and (c) relate to the case against The Centre. 40 The Centre attached importance to the reply of 14 July 2003 of FD's solicitors to the request of 1 October 2002. As to para 7 of the amended statement of claim which alleges that in the course of the further enquiries undertaken by the officers of DOCS it became known that the plaintiff had been physically and sexually abused by her father and other family members, the request asks: "8. Was the plaintiff physically and sexually abused by her father and other family members?" The reply states: "8. Yes." 41 As to para 15 of the amended statement of claim of 7 March 2002 the request asked: "21. Does the plaintiff allege that she has Dissociative Identity Disorder (DID)? 22. From when it is alleged she has suffered from DID" The reply states: "21. Yes. 22. The plaintiff relies on the expert opinion of her treating specialists and contained in the medical reports provided in relation to the diagnosis, nature and extent of the condition including onset, prognosis and future therapy treatment and or medication." 42 The request for particulars does not address to the case being made against The Centre in sub-paras (b) and (c) of the Particulars of Injury. In answering the request for particulars as to para 13 of the amended statement of claim, namely, that The Centre failed to give therapeutic assistance through the counselling provided to FD and so was negligent in the provision of services to FD, her solicitors referred generally to the report of Dr Milton including a reference to intrusive counselling and leading questions being inappropriate. 43 In answering the request for particulars as to para 14 of the amended statement of claim alleging that The Centre was negligent, FD's solicitors referred generally to the report of Dr R Milton and to particular parts where Dr Milton refers to particular instances of counselling which were inappropriate. 44 The replies given in the letter of FD's solicitors do not suggest any abandonment of FD's claim that the counselling provided by the Centre was negligent and her case against The Centre. 45 FD's case against The Centre had two bases as specified in the amended Statement of Claim. As four Justices of the High Court observed in Mummery v Irvings Pty Limited (1956) 96 CLR 99 at 110 as to the function of particulars: "Their function is to limit the issue of fact to be investigated and in doing this they do not modify or alter the cause of action sued upon." See also Doonan v Beacham (1953) 87 CLR 346 at 351 (per Williams ACJ) and 352 (per Kitto J). 46 I would reject the submission that in the present case the particulars supplied prevented FD pursuing her case against The Centre. There may have been some tactical manoeuvring between the plaintiff and the State as to who was going to call Dr Milton, but that was something to be resolved during the hearing as the evidence emerged. Much would have depended on the assessment by counsel of the evidence led against the State. 47 The plaintiff could well have been asked to deaI with what is recorded in DOCS records and The Centre's counselling notes. I anticipate that the plaintiff would have sought to tender certain of the records of the State and perhaps some of The Centre. That may have been unavoidable and led to the hearing progressing slowly as FD was not receiving legal aid and a medical practitioner could not be expected, without remuneration, to prepare a report dealing with the records. That may have resulted in an adjournment of the proceedings. I anticipate that at the hearing the State would have cross-examined Dr Williamson at length on the counselling notes of The Centre as well as having him enlarge upon his view that the prime cause of FD's DID were the alleged sexual assaults rather than DOCS' failure to provide adequate care, management and counselling for FD. An interesting and difficult situation would arise if the Court did not regard the evidence of sexual assaults as satisfactory and of sufficient gravity to give rise to DID. 48 I return to the history. 49 From early August 2004, and ultimately on 10 September 2004, FD's legal representatives told the Court (an Assistant Registrar and a judge) that the matter was ready for a hearing date to be fixed. The judge fixed a hearing date of 28 February 2005 with an estimated hearing time of eight weeks plus. FD was to give oral evidence. No statements or affidavits from her were required. On 14 October 2004 the hearing date was varied by the list judge on the application of the solicitors for The Centre to 4 April 2005. 50 Mr C J Cross was admitted as a solicitor on 10 October 1997. In that year he commenced employment with Abbott Pardy & Jenkins (APJ), Solicitors, Armidale, working in their Glen Innes office. He became a partner in APJ on 1 July 2001 and remained a partner until 30 June 2004. From 1 July 2004 to 23 December 2004 he remained as an employed solicitor with APJ. He retained the responsibility for all the files he held as at the time he left the partnership. He neither required nor requested supervision from the continuing partners. Mr Cross began working on the file in March 2001 and assumed carriage of the matter. At that stage the State was the sole defendant. Mr Cross signed the Amended Statement of Claim joining The Centre. Early in 2002 he made efforts to locate counsel who would be prepared to take on a Legal Aid brief, where the documentation was voluminous and time consuming and the fees allowed by Legal Aid were minimal. In February 2002 he briefed Mr Freckleton from the Victorian Bar with the approval of Legal Aid. Legal Aid had not been revoked at that time. Mr Cross believed that he sought advice from Mr Freckleton and was advised that he should join The Centre. By this time Mr Cross would have been aware of Dr Milton's views. 51 Mr Cross said that to his recollection Legal Aid required counsel's advice on the merits of the case. The increased amended offer of Legal Aid of a fee of $500 was unrealistic as no counsel could be found prepared to undertake the very considerable amount of work in just reading the briefed material for so meagre a figure. As time went by FD's income varied from time to time eventually leading to the revocation of the grant. At times FD could appear to be normal and during these periods could earn a satisfactory income. 52 Mr Cross said that thereafter Mr Freckleton agreed to provide an advice for the fixed fee of $3000 to be paid by APJ out of the partnership's own funds. Mr Cross said that FD was regularly in contact with him seeking updates as to the progress of the matter and to inform him continually of her see-sawing mental condition, including admissions to hospital when she became suicidal. Further, her treating specialist became seriously ill with cancer. 53 On 14 July 2004 Mr Cross received notification from Legal Aid that FD's appeal against the termination of Legal Aid had failed. 54 In September 2004 Mr Cross regarded the matter as being as ready as it ever would be and thought that the matter required resolution. In his opinion there was no further expert liability or medical evidence to be obtained other than updates from Dr Williamson. Although Mr Cross did not say so, Dr Milton's report highlighted many of the documents held by The Centre to which recourse would have to be had during the hearing. 55 Mr Cross considered FD's case was grounded in the records produced on subpoena including the extensive counselling records and that the expert interpretation and assessment of the counselling records would determine whether FD's case succeeded. He thought that the costs of FD's case were going to be considerable and without legal aid had to be reined in. APJ decided to continue to act for FD on a contingency basis. She was impecunious. Further, such costs as had to be incurred ought to be delayed as long as practicable. The subpoenaed records were contained in 13 folders and required a considerable number of professional hours to organise and collate to enable the experts to assess and comment upon them. At the time the Court was advised that the plaintiff's case was ready Mr Cross did not consider it necessary for Dr Wiliamson to provide a written report on the subpoenaed material as Mr Cross thought that his oral evidence would deal with the voluminous documentation produced on subpoena. There were obviously some acute problems. While it would be much preferable to have a written report on the subpoenaed material from Dr Williamson the provision of such a report would be costly if it was to be comprehensive. Going through 13 folders of documents and making comments is time consuming. APJ had no funds with which to pay for such a report. Dealing with such material orally is time consuming for both the Court and the Centre and costly for The Centre. Dr Williamson's attention would probably have been directed to the records of DOCS and Dr Milton's attention to those and The Centre's records. 56 A judge is naturally reluctant to effectively shut out a plaintiff with major psychiatric problems from the State's Courts by requiring the delivery of written reports which the person cannot afford. There was the possibility that there may have to be an adjournment to enable The Centre to meet the oral evidence. As the Court had decided not to require FD to give a written statement but to allow her to give oral evidence, this meant that there could have been extensive oral evidence from the witnesses called on behalf of the State and The Centre. 57 Mr Cross said that by 20 August 2004 he had briefed counsel to advise and appear and requested available dates. Mr Cross said that about this time he discussed with Mr Freckleton that this was going to be a difficult case. It was not possible to be sure what FD would say at any given time. Would she be in one of her better periods or one of her poor periods? Mr Cross and Mr Freckleton agreed that the case was not going to become any better with the passage of time, that they should bite the bullet and obtain a hearing date and that the case may well turn on the cross-examination of the psychiatrists. After the Court fixed the hearing date Mr Cross advised Mr Freckleton. Mr Cross said that on 28 September 2004 he contacted Mr Freckleton who stated that he would provide his advice "asap". 58 If Dr Milton was correct in his opinion that FD had embraced the concept that she was suffering from DID and that this was as a result of the faulty counselling of the officers of The Centre, what was going to be her reaction to suing The Centre? What evidence was she likely to give as to the counselling she received? How much weight could be placed on her evidence? What was her reaction going to be about Dr Williamson being cross-examined by The State about the correctness of his diagnosis in the light of the material in Dr Milton's report? Would she be prepared to adopt the views in Dr Milton's report? Counsel who came into the matter subsequently thought that FD may have had a case based on Dr Milton's report. 59 Mr Cross stated that he had the carriage of this matter from 1 July 2004 to his departure, a thorough knowledge of the files and significant and regular contact with FD up to his departure. She often tried to contact him outside of office hours on his mobile telephone and often left text messages. She tried to contact him when he was overseas. Mr Cross cared about FD and established good relations with her. 60 Mr Cross said that he was experienced in conducting large and complex personal injury claims including a number of larger medical negligence actions. He had undertaken the conduct of civil and criminal matters and was experienced in the larger and more complex litigious matters handled by the firm. 61 Mr Cross stated that the client needed finality. A mediation had failed in disturbing circumstances which had a noticeable adverse effect on FD's emotional state. The mediation took place before the hearing date was set. 62 Mr Cross said that from about October 2004 onwards he attempted to contact Mr Freckleton on a number of occasions without success. Mr Cross recalled that at some time between October 2004 and the end of December 2004 he spoke to Mr Freckleton's clerk by telephone and was advised that Mr Freckleton was "on to it". Mr Cross said: "The main reason for the advice per se, was the reassurance it would give that the client had counsel who was available and prepared. Another consideration as I recall it was the possibility of using the advice for reinstatement of a grant of Legal Aid, FD's employment patterns having been erratic to the stage where she might at the time the trial was approaching qualify or at least be no longer disqualified for a grant on the ground of 'means'." 63 Mr Cross had formed the view that the evidence and conduct of Ms S Roseveare, the principal counsellor of the Centre, if called, would assist FD's case. A Christmas card and a letter from Mrs Roseveare to FD were produced by Mr Cross. These were friendly and encouraging. One aspect was the reference to "dear Fiona, The Others and all the others" (on the card) and the statement in the letter bearing date 17.3.2000 "So I send my love to you and the others to let you know how much I think of you and that I love you and miss you all". These remarks are unusual. The card and the letter may have provided some support for Dr Milton's views. 64 Mr Cross agreed that the conduct of FD's case required experienced competent counsel. Mr Cross wanted counsel to advise on liability, on the further evidence required to advance FD's case and on prospects. Mr Freckleton's advice stated that he had been asked to advise on prospects, quantum and likely orders. 65 Mr Cross agreed that as at August/September 2004 he formed the view that no further expert liability or medical evidence was necessary other than an update from Dr Williamson. Mr Cross thought that FD and Ms S Roseveare were both very complicated persons. He believed that FD was going to give evidence for some weeks and be cross-examined at length as the various issues were explored and counsel tried to pin down FD on the various issues, multiple personalities and "alter egos" and the counselling FD received from Ms Roseveare. Nobody could probably accurately assess what was likely to happen so far as FD was concerned. No doubt there would be references to and the tender of various file and counselling notes. Mr Cross also anticipated that Mrs S Roseveare, one of the counsellors used by The Centre would also be examined and cross-examined at length. Mr Cross anticipated that Drs Williamson and Milton would have to prepare further reports after FD and Mrs Roseveare had given evidence. Mr Cross did not tell the Court of this as this is not unusual in the running of a case. 66 Mr Cross accepted that FD maintained that she had been sexually assaulted. However, he saw the medical issues thus: Dr Williamson thought that FD had DID and that she had been sexually assaulted whereas Dr Milton did not think that FD had been sexually assaulted but thought that because of the way FD had been treated FD, for all purposes, believed she had DID and was being treated as if she in fact had DID. Mr Cross asked rhetorically, what is the effective difference. 67 Mr Cross said that he had many discussions with counsel (Freckleton) but he could not say whether he had ever obtained counsel's opinion that FD's case was grounded on the records produced under subpoena. Mr Cross could not say whether he had sent the subpoenaed material to Dr Williamson and whether he had asked for a report on it. Mr Cross agreed that Dr Williamson had not provided a report on that material. 68 Mr Cross expected Mr Freckleton to give his advice and then he (Cross) would patch up any holes. He had six months to do so. Mr Cross thought that the relevant parts of the subpoenaed material would have been more likely to have been adduced in evidence through Dr Milton. 69 Mr Cross said that counsel told him dates when the advice would be provided but it did not arrive and that this happened a few times. Mr Cross agreed that counsel stated that his advice would be with APJ by 17 December 2004. Mr Cross said that as soon as it was received he would have commenced implementing it. However, the advice did not arrive. 70 Mr Cross did not conduct a formal handover of the file to Ms Waters. He handed it over to Mr B Mockler, a consultant to the firm. Mr Cross prepared a written handover note about 20 January 2005. This recorded that although counsel had promised the advice by 17 December 2004 it had not been received despite several telephone messages. The note recorded that on receipt of a favourable advice a further application should be made for Legal Aid, that if Legal Aid were not granted the case should be run anyway on counsel's advice and that it may be necessary to brief alternate counsel on a contingency basis. The note states: "Concurrently outstanding is preparing the entire matter for hearing which should include an updated Medico Legal from Dr Williamson … … … There is significant prospects of getting serious money … there is an offer been made of $50,000 already. This is not close to the mark but a commercial settlement given that the matter is expected to run for two to three months could be in the region of $200,000 to $300,000." 71 Mr Cross said that he told Mr Mockler that if he did not hear back from counsel with the next week or two, "you have to brief another counsel. You have to get on with it." 72 On 21 January 2005 APJ requested Senior Counsel at the NSW Bar to review the existing brief and advise if he was available to accept the brief. The brief comprised a great deal of material. About 15 February 2005 Senior Counsel advised that he would accept the brief and arrangements were made for a conference in Sydney with FD on 23 February 2005. At that conference Senior Counsel advised FD orally that the matter was not ready as she required an updated psychiatric report and a medico-legal psychiatric report and an expert liability report. By FAX letter dated 24 February 2005 The Centre's solicitors advised the matter was listed for pre-trial directions on 3 March 2005. By FAX letter dated 1 March 2005 The Centre's solicitors advised that they had made arrangements for FD to attend a medico-legal appointment with Dr J Phillips on 31 March 2005 at 5pm. 73 On 2 March 2005 FD's solicitors received Senior Counsel's written advice. This recorded: (a) He had not been briefed with DOCS' field notes etc. They should be obtained and briefed; (b) as FD's case stood there was no evidence upon which to found a case against DOCS; (c) without an expert's report FD's case against DOCS will fail; (d) while the case against The Centre was stronger it was by no means watertight and much needed to be done; (e) he had told Senior Counsel for the State and Counsel for The Centre that the case could not proceed to hearing on 4 April 2005; (f) the matter should be removed from the list and mentioned in six to twelve months. Psychologically this may not be in FD's best interests but it was not in her interest to proceed and fail; and (g) FD should be urgently assessed and a decision made whether a tutor should be appointed. 74 Ms Waters stated that advice to this effect was communicated to FD in the conference with Senior Counsel and that she received instructions to continue the claim against The Centre. 75 In the meantime on 11 February 2005 Ms Waters spoke with Mr Freckleton to discuss whether he should provide an advice. As he said that he had done some preparation and confirmed, after some further communications, that the advice would be available late February 2005, she agreed to him completing it. This advice, dated 6 March 2005, was received on 8 March 2005. The advice contains a useful review of the materials, particularly the medical reports. Mr Freckleton thought that the plaintiff was unlikely to succeed against either defendant. He thought that a judge would have difficulty in accepting FD's evidence. 76 By facsimile letter dated 2 March 2005 the State and The Centre were served with a Notice of Motion and Ms Waters' affidavit in support seeking to vacate the hearing date of 4 April 2005. On 2 March 2005 The Centre's solicitor having the day to day conduct of the matter (V E Jenkins) swore an affidavit opposing the adjournment and stating that it had incurred significant costs in preparing for the hearing and that these would be thrown away. The Centre stated that if the Court was minded to grant the adjournment then The Centre sought an order that the parties be ordered to put on evidence in affidavit form and costs orders. The Centre sought to improve its litigious position and overcome the orders of Master Harrison and Dowd J declining to order statements and permitting FD to give her evidence orally. On 3 March 2005 the List Judge vacated the hearing date and stood the matter over for mention on 28 April 2005, ordered FD to pay the costs thrown away and reserved the rights of The Centre to seek an order for costs against FD's solicitor. On 28 April 2005 various preparatory matters were noted and the matter was stood over to 12 May 2005 by consent. 77 On 9 May 2005 FD's solicitor received a report from Dr Williamson as to FD's capacity. FD gave her solicitor instructions to accept the State's settlement offer. On 12 May 2005 before the List Judge counsel for the State attempted to hand up Terms of Settlement resolving proceedings as between FD and the State. The Centre opposed the proposed course. The judge did not give effect to the Terms of Settlement and stood the matter over to 19 May 2005, then to 21 June 2005 when all outstanding Notices of Motion were set down for hearing for three days from 28 September 2005, with a mention on 22 September 2005 78 By the outstanding Notices of Motion FD's legal advisers understood that the motion of 4 July 2005 of FD seeking entry of judgment in accordance with the Terms of Settlement and that of 5 July 2005 seeking leave to file a further amended ordinary statement of claim would be heard. Counsel for The Centre understood that only its amended notice of motion of 23 June 2005 was to be dealt with. That amended motion sought that FD's amended statement of claim "be stayed or dismissed generally pursuant to SCR Pt 13 r 5" or "be struck out pursuant to SCR Pt 15, r 26" or "be stayed or dismissed pursuant to SCR Pt 33 r 6(2) and that The Centre be granted leave to file a cross-claim against the State. Consequential costs orders and other relief were also sought. The Centre's application for FD's solicitor to pay the costs of The Centre thrown away by the adjournment was not listed. 79 During the directions hearing before the List Judge on 21 July 2005 Senior Counsel then appearing for FD said that it appeared as though she needed to put on another notice of motion seeking an extension of time in which to bring her action against The Centre, that FD had been in hospital for a week, had been released, was in a very buoyant state at the moment, but the fluctuations were difficult. In its defence The Centre had, in addition to denying FD's claims of negligence and asserting that prior to any counselling FD had developed a psychiatric illness in the form of DID, pleaded that FD's cause of action against The Centre, if any, which was denied, was barred by reason of the Limitation Act 1969 NSW. Order 3 of the Short Minutes of 21 July 2005 provided, "The plaintiff to file and serve Notice of Motion and affidavits in support to extend time on or before 30 August." 80 There was a change in the Senior Counsel representing FD. The new Senior Counsel advised the solicitor for FD that all limitation questions should be left until the hearing of the action, when all the facts would be fully deployed; this was not an appropriate case to try and determine the limitation issues in the absence of all the facts. Accordingly, no motion was filed on behalf of FD seeking an extension of time, nor were any affidavits and The Centre's solicitors advised that none would be filed. 81 On 28 September 2005 I commenced hearing FD's motion to give effect to the Terms of Settlement signed by the legal representatives of FD and the State in May 2005 whereby there was to be a verdict for the State as against FD and the State was to pay FD's costs as against the State agreed at $100,000. The Centre objected to the entry of judgment in FD's action against the State on the basis that if that occurred The Centre would not, if FD succeeded against it, be able to sue the State for contribution because the entry of judgment in favour of the State established that the State was not liable to the plaintiff: see s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 NSW and James Hardie & Coy Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53. 82 FD pointed out that The Centre had not filed a cross-claim against the State and that the time for The Centre to do so had long passed. FD contended that any application by The Centre to file a cross-claim would fail. 83 The Court heard submissions from the State that the Court should allow the terms to be filed and given effect to and from The Centre to the contrary. I will not rehearse these. The Centre pointed out that FD was seeking to amend and broaden her claim against The Centre and that this was a good reason to permit The Centre to file a cross-claim against the State. 84 At the commencement of the resumption of proceedings on 29 September 2005 Senior Counsel for the State stated: "The orders that we seek are; one, that the judgment be entered; two, the cross-claim that we brought be discontinued; three, that there be an order for costs in favour of the cross-defendant … We accept that if we discontinue or have the cross-claim dismissed that the second defendant would have to have its costs on the cross-claim." 85 Pursuant to its amended motion of 23 June 2005 counsel for The Centre embarked upon an argument that on the medical reports relied upon by FD it was plain that she was not under a disability between 1994 and 1998. The Centre pointed out that FD attained the age of 18 on 24 June 1994. It submitted that to avoid the provisions of the Limitation Act she had to institute proceedings by 24 June 1997 and that thus FD's action was barred by the Limitation Act 1969. Counsel for FD complained that this point had not been specifically raised in the Notice of Motion, that the view had been taken that all limitation points should be dealt with at the trial and he was not prepared to meet it. 86 I adjourned the hearing until 27 October 2005 for mention on that day, having indicated that The Centre was entitled to raise the limitation point and seek a ruling at this point if the available evidence led to the conclusion for which it contended. This was subject to the Court deciding when it examined the materials that the matter should be resolved at that stage rather than at the hearing of the action. 87 On the afternoon of 29 September 2005 FD terminated the instructions of counsel and her solicitor. The matter was mentioned on 27 October and stood over to 25 November 2005. Despite notification FD did not appear. Counsel for The Centre stated that it was seeking costs orders against the former solicitors for FD for allowing the matter to be set down for hearing and its subsequent cancellation and for the costs of the adjournment. 88 Because of the condition of FD I was not prepared to make any order and, after discussion with counsel, the Court caused a letter to be prepared addressed to FD explaining the position and the State arranged for it to be delivered to her. Omitting the intermediate steps FD advised the Court by letter of 13 December 2005 that she did not wish to continue her Court action against The Centre. She referred to the effect that the matter was having upon her. This made it unnecessary to consider some of the issues which had been debated. 89 On 28 February 2006 FD again did not appear although notified that the matter would be further dealt with. On that day the Court ordered that the amended ordinary statement of claim as against The Centre be dismissed, that there be a verdict for the State against FD and that the State pay the costs of FD agreed at $100,000. The Amended Statement of Cross-Claim by the State against The Centre was dismissed and the State was ordered to pay the costs of The Centre of the State's amended cross-claim (including the cross-claim itself). The costs argument was adjourned for hearing on 12 April 2006. Some directions were given. 90 On 12 April 2006 I commenced hearing The Centre's application for costs orders against FD's solicitors In my judgment of 13 April 2006 I traced what had occurred on 12 April 2006. On that day The Centre supplied particulars of the conduct and omissions of APJ upon which The Centre relied and amended its claim from one against APJ to one against Ms Waters. 91 In her affidavit of 7 February 2006 Ms Waters set out why she thought that the plaintiff had an arguable case against the State: (a) In his report of 9 June 1999 Dr Williamson states: "I believe it (referral to a specialist clinical psychologist or psychiatrist) should have been used for [FD's] first investigation." (b) He expressed the view that if [FD] had been removed from her environment [in 1990] her condition would probably not be as bad as it is today. He acknowledged that this was hard to say. (c) Despite investigation of FD's complaint of sexual abuse no action or adequate action was taken by the State (DOCS) to ensure that FD was protected and/or removed from her position of peril. (d) The State did not ensure that its officers were adequately trained to deal with allegations of ill treatment and the sexual abuse of FD and her consequent need for specialist medical and psychiatrist treatment. 92 These are points that needed to be substantiated and developed. 93 Dr Williamson in his report of 9 May 1998 records what he found on 7 and 8 May 1998, her past psychiatric history including counselling as related by FD. Dr Williamson records FD stating that she had received counselling in 1995 and 1996 with Kim Kilpatrick and since September 1995 had been seeing S Roseveare, a sexual assault counsellor at Armidale. FD said that she found this hard and "I actually feel we're getting worse, not better." 94 Dr Williamson sets out the family history FD supplied. She described both her father and her mother as "scary, cruel, evil" and gave examples of their alleged conduct. She said that the family experienced chronic sexual and physical abuse with sexual abuse starting when they (she) were two years of age. She claimed that her parents told the family (her brothers and herself) that they were going to keep trying to get a girl for the purpose of sexual abuse. When Dr Williamson asked FD to specify sexual acts she said she could not and that she did not want to. Dr Williamson recorded, "It is of note that [FD] never admitted to being sexually abused. She always said that the others were abused, but she was not." She said that she knew that sexual abuse of children was illegal but she could not charge her parents with sexual abuse because her father had guns [and might use them]. Dr Williamson also conducted a mental state examination. She completed a number of tests. Dr Williamson concluded: "Overall, she presents a history and examination which is clinically consistent in detail with the very typical presentation of severe [DID]." 95 The differential diagnosis was actually simulated DID but Dr Williamson regarded this as implausible. Dr Williamson thought that FD's management "requires psychotherapy by a therapist trained and experienced with [DID]". Dr Williamson forwarded a copy of his report to "Ms Susan Roseveare, Sexual Assault Counsellor, Armidale." 96 It does not appear that DOCS arranged for FD to be seen by a person having the requisite training and experience with DID. It does not appear whether Ms Kilpatrick or Ms Roseveare had that training or experience. The materials suggest that they had not had that training and experience but the materials are not conclusive. 97 In his report of 9 June 1999 Dr Williamson records that at an interview with FD 's father on the day (27 August 1990) FD made her complaint her father agreed he had used "tormenting behaviour" which he did not intend to have any sexual meaning, that her parents assured the Department's officers that FD would be safe in their care and invited the officers to visit the home at a later date. 98 On 9 October 1990 the two district officers returned to the home for further interviews and review. On this occasion FD told the officers she was feeling safe at home and that she wished she had never said anything about the abuse and wished nothing more to be done. Dr Williamson observed (p4 of 1999 report) that from the case notes and documentation it appeared that the officers investigating FD's complaint of sexual abuse, in 1990, attempted to continue their investigations despite FD recanting. Dr Williamson drew attention to the statement of about 20 September 1990 of Caroline Forrest of Inverell Police, with whom FD stayed for a weekend. That contained details of FD's behaviour. Ms Forrest indicated that FD may need some type of counselling because "[FD's] personality had changed from a nice little girl to an evil little girl." FD appeared to be "a very lonely child." Dr Williamson wrote that to a clinical psychologist or psychiatrist the behaviour described in Ms Forrest's report rang alarm bells and the need for a full psychiatric or psychological assessment. Specialist assessment was required both of the child and her parents. Dr Williamson (p5) thought that there were very strong grounds for ordering a special medical examination (physical and psychiatric). However, Dr Williamson wrote: (pp5-6) "It appears to me that the officers concerned, while doing their best and actually following the Department's protocols had not had the opportunity to be made aware of the constellation of risk factors and other features that actually indicate a serious problem, especially when the parents are apparently plausible and the child recants. … the research findings on abuse clearly indicate that there is a significant proportion of unsubstantiated and suspected abuse. … it is my opinion that:: 1. There needs to be a further protocol in the Instructions [of the State] which involves responding to the common case of the child recanting 2. Recognizing a significant risk profile 3. Indicating a method of investigation that is appropriate to dealing with suspected abuse and clever concealment. Most commonly, this should include indicators for referral to specialist clinical psychologists or for psychiatric assessment of potential sexual abuse. It is unlikely that a school counsellor will be adequately skilled in this work." 99 Dr Williamson refers to the need for a full psychiatric assessment of the child and specialist assessment of the parents. 100 It is apparent from Dr Williamson's report that the School Counsellor and the officers of DOCS were confronted with a complex and difficult case. The statement of Ms Forrest noted in the report of Ms L Sheather was an indication that something was amiss and that more investigative steps and well directed treatment were probably required. 101 This overlong review suggests that there were the seeds of a case against the State, but it needed considerable evidentiary development. Nor could it be overlooked that Associate Professor Scott in a carefully reasoned report concluded that Dr Williamson's criticisms of the alleged shortcomings of DOCS were without foundation. Mr Freckleton thought that Associate Professor Scott's views would probably be preferred by a Court. 102 Ms Waters held the view that substantial support for the plaintiff's alternative case was to be found in the report of Dr R Milton, namely, that FD's psychiatric condition was caused (or exacerbated) by lengthy periods of inappropriate and inadequate counselling by The Centre. Ms Waters thought that if the Court rejected Dr Williamson's opinion FD continued to have a strong and arguable case against The Centre. After the hearing date was vacated by the List Judge FD sought to further amend her amended statement of claim by adding more specific allegations of negligence – see sub-paras 14(g) to (o), each of which, it was submitted, was supported by statements in Dr Milton's reports. (see para 8 of Ms Water's affidavit). 103 If the action had proceeded to a hearing both FD and Dr Milton would have been taken to the counselling notes in detail. That would have taken days. 104 Dr Jonathan Phillips, an experienced psychiatrist, prepared reports at the request of The Centre. He interviewed FD, S Roseveare and K Kilpatrick. Dr Phillips thought: "… [FD] more likely than not developed de novo [DID] rather than an artificially induced DID as a consequence of her therapy. (p6 of his report of 24 March 2003 as amended)." He expressed these opinions: "[FD] almost certainly suffered severe psychological trauma as a consequence of being repeatedly assaulted sexually within the family system and as a result of being assaulted sexually by a prominent person within her church. Almost certainly [FD] had experienced serious problems in her personality development/maturation as a consequence of her early adverse experiences. I cannot rule out a genetic contribution to her difficulties as well. She probably developed dissociative symptoms from as early as 1995. Amongst other matters a number of alters appeared at that time. She probably has a dissociative identity (DID). This is an extremely rare disorder and should not be confused with the current epidemic of pseudo-DID. Her therapy was inevitably going to prove difficult as a result of problems in her personality development, lack of trust in others and the presence of dissociative phenomena. She was correctly referred for therapy by DOCS during 1995." 105 Dr Phillips rejected the allegation that either K Kilpatrick or S Roseveare had been negligent. Dr Phillips explained that treating DID is uncommonly difficult and that very few therapists have special expertise in this area and that such expertise was not and is not available in the Armidale-Tamworth-Inverell area. Both K Kilpatrick and S Roseveare gave FD the best possible care they could. They could not decline to support her and not provide therapy. Both acted professionally and appropriately. 106 There was obviously going to be a major contest at the hearing between Dr Williamson and Dr Milton and Dr Phillips and Dr Milton. Much would depend on their reports and their cross-examination. The evidence FD gave as to the nature and extent of the alleged sexual assaults upon her would have been important. Depending upon what, if any, of her evidence was accepted this may have raised questions as to the validity of the premises of some of the reports. 107 The Centre was proposing to call K Kilpatrick, S Roseveare and Dr J Phillips. The State was proposing to call some 13 witnesses including Drs Milton, Bell and Roldan. Some of the witnesses appear to be officers of DOCS. Details of the position of each do not appear from the materials. They would be giving oral evidence. It could be expected that the State would use the notes of Ms Kilpatrick and Ms Roseveare to elicit material from FD in cross-examination. 108 This is a case where all doctors and expert witnesses may have had to re-cast part of their reports in the light of the evidence given by FD and cover various alternative situations in the light of the various alternative findings of fact open to the Court. The hearing would have been fluid, non-conventional and taxed the patience of all. There was also the possibility of FD having no case against either defendant after having completed her evidence. Depending on the way the case ran the hearing may have had to be adjourned. 109 In support of its application for a costs order against Ms Waters The Centre submitted: (a) A Registrar and the List Judge were informed by the legal representatives of FD that the case was ready for a hearing but it was not ready in that, inter alia: (i) Mr Cross had not commissioned a report on the counselling material or on the other material, intending to adduce evidence in chief through Dr Williamson. Such a report had not been provided at any stage. (ii) Mr Cross had not sought the opinion of counsel as to this or informed the Court. He opposed the early provision of witness statements. (iii) Mr Cross had formed the view as at August/September 2004 that no further expert liability or medical evidence was necessary other than an update from Dr Williamson. His latest report was delivered in 2001. (iv) Counsel's advice was to the effect that there was no (or perhaps little) liability evidence grounding the case against the State; Mr Cross, in effect, conceded as much. (v) there was no evidence that all the records had been given to FD's doctors. (b) the pleadings were not in order - there was a later application to further amend the amended statement of claim; (c) the particulars were not in order; the report of Dr Williamson relevant to quantum had not been updated, for example, particulars as to non-economic loss/general damages, economic loss, care, past, present and future out-of-pocket expenses and perhaps management charges. There was confusion about the basis on which the case was being brought; (d) when counsel was asked to advise he was not asked to advise on what further evidence should be sought, especially as to liability. (this was of considerable importance s to the case of FD against the State in view of Assoc. Professor Scott's report). Mr Cross said he wanted advice on "what needs to be prepared for the hearing. (e) When counsel did not provide the advice required within three months of it being sought there was undue delay in seeking the advice of alternate counsel, despite advice being sought in August 2004 and the hearing date having originally been fixed in September 2004. It was not until about 23 January 2005 that advice was sought from alternate counsel. This did not allow for the case to be adequately prepared for a hearing on 4 April 2005. (f) Ms Waters reviewed the particulars supplied in late January/February 2005. She required counsel's advice whether they were adequate. She also noted that Dr Williamson's latest report had been furnished in 2001. Further particulars were not supplied nor was an updated report from Dr Williamson sought (or obtained). (g) Ms Waters did not ensure that there was a proper handover of this complex piece of litigation and did not make it her business to ascertain the state of preparation or lack of preparation and what remained to be done. By the time she turned her mind to these matters, it was too late. Ms Waters agreed (T49 of 4/10/06) that on her examination of the file apart from seeking Mr Freckleton's advice and reminding him that it was required not much had been done by way of preparation for the hearing. 110 The Centre submitted that it was irrelevant to consider how the solicitor was to be paid and that the Court cannot grant a greater "licence" to practitioners acting on a contingent fee basis. While the solicitors may have been prepared to act on a contingency basis they could not be expected to pay for Dr Williamson to provide a report on the State's notes, the Centre's counselling records and an updated medical report. There was the further difficulty, depending on the evidence given by FD and the facts open to be found by the Court that Dr Williamson and the other doctors may have had to proceed on different assumptions or premises from those in their reports. The solicitors for FD cannot be criticised for thinking it was preferable for FD to give oral evidence rather than making a statement. This was not the sort of case where statements would be useful. A trial judge would wish to assess what FD was telling the Court and to hear her story and her complaints in her own words. The nuances could be important; she may start to recount what happened via Sarah, one of her alters. She resented intrusive questioning so her responses may be interesting especially if she insisted that the questioner ask one of her alters or the reply came from one of her alters. 111 Difficult questions were going to arise in ensuring that the State and The Centre were given adequate opportunity to meet the case being made against each of them and not imposing procedural limitations having the effect of shutting FD out from pursuing her claims when it was tolerably clear that she was, or had become, a badly damaged person. 112 My assessment of the position is that as at August-September 2004 there was sufficient in the likely evidence of FD, as best as it could be anticipated, but accepting that it could turn out to vary, and the evidence of Dr Williamson to raise an arguable case against the State. However, it was desirable to obtain further evidence, if possible, to support FD's case. That would not have been easy. It was also desirable to undermine the anticipated evidence of Associate Professor Scott. Her report appeared to be cogent and obtaining evidence in rebuttal would not have been easy and may not have been possible. It is not apparent how this could have been done by FD's solicitor's without funds. 113 There is sufficient in the report of Dr Milton, taken in conjunction with the counselling notes of The Centre to establish an arguable case by FD against The Centre. This is despite FD's belief that she had DID. While it was prudent for FD's advisers to seek to further amend the amended statement of claim as against The Centre, two points should be made. Both the State's cross-claim and FD's amended statement of claim, which followed the cross-claim, contained the essential allegations. The additional matters in the proposed further amended statement of claim, (para 14(g) to (o)) were taken from Dr Milton's report, a copy of which The Centre had had for some years. Dr Phillips disagreed with the views propounded by Dr Milton as to the counselling provided by officers of The Centre. 114 On Mr Cross' approach to how FD's case would be conducted, namely, that it would depend on FD's oral evidence and the evidence of the psychiatrists including their cross-examination and the notes made by the officers of The State and the officers of the State and the officers of The Centre, he could have taken the view in August/September 2004 that the matter was substantially ready for a hearing date to be fixed subject to filling in any gaps and the updating of the medical reports. He had sought the advice of counsel on merits, quantum and likely orders. With a hearing date so far in advance there was time to obtain updated medical reports and any additional evidence which may be available. Mr Cross was waiting on Mr Freckleton's advice on merits. If favourable, this would have grounded a further application for legal aid, although even if favourable it was doubtful if legal aid would be forthcoming for a long trial (over 8 weeks) and which could be lost. The advice would also have served to assist APJ in deciding how much to invest in the case. 115 Mr Freckleton had over the years had substantial contact with FD and was thus well placed to make an assessment of her and her case. Other counsel would not have had his advantages. This helps to explain the reluctance of APJ to go to other counsel. 116 The delay by counsel in furnishing his advice put AP7J in a difficult position. They had undertaken to pay counsel $3000 out of their own pockets for the advice. There was a large volume of material (13 volumes) to study and digest. This would take some time. However, with a hearing date fixed for 4 April 2005 the matter could not be allowed to drift. 117 When Mr Freckleton's advice was not received as promised, by 17 December 2004, it would have been prudent to seek other advice but this did not occur until 23 January 2005. Obtaining other advice on a contingency basis during Vacation tends to be difficult. There was a lot of copying to be done to deliver further briefs; this would have taken some 3 to 4 days and been expensive. The primary problem in the present case apart from the strengths of the cases of the defendants lay with the delays in Mr Freckleton providing his advice. This compromised APJ. There was a need for a prompt hearing given FD's condition and it was a little optimistic for the Court to be told by FD's legal representatives that the matter was ready for hearing, but there was ample time between September 2004 and 4 April 2005 to plug such gaps as they could in the evidence to be led in FD's case and arrange updated medical examinations. 118 This was an extremely difficult case to manage and prepare. The facts were unusual, if not unique, and involved complex psychiatric evidence where widely different views were strongly held and the evidence available to the defendants indicated defences of considerable substance. The actual evidence which this badly damaged plaintiff would give and when she would revert to her alters speaking could not be accurately predicted. Mr Cross and Ms Waters were conscientious and probably did their best but mistakes were made. The preparation and conduct of the case, with the shortage of funding, would have taxed the most gifted and experienced solicitors. 119 The alternate counsel engaged on behalf of FD seemed to approach the conduct of her case a little differently from Mr Cross, as he indicated to the List Judge on 3 March 2005. The alternate counsel had serious reservations about FD's case against the State. They thought FD had a stronger case against The Centre based on Dr Milton's report and the counselling notes. That was not an unreasonable view. The Centre became aware in late February that FD was seeking to vacate the hearing date of 4 April 2005. That occurred on a directions hearing arranged by The Centre on 3 March 2005. The vacation of the hearing date took place promptly after alternate counsel had advised that the matter was not ready to proceed. A substantial period of notice was given, sufficient to allow witnesses and the legal representatives to undertake and engage in other work. 120 In all the circumstances I am persuaded that it would not be fair or just to make an order that Ms Waters pay the costs of The Centre thrown away by the vacation of the hearing date of 4 April 2005. 121 The Centre's application that Ms Waters pay the costs personally of the costs thrown away by the adjournment of the proceedings on 29 September 2006 was primarily based on what occurred in Court on the hearing before the List Judge on 21 July 2005. 122 The transcript of proceedings of that day reveals that the List Judge was told that The Centre had filed an amended notice of motion (that of 23 June 2002) but no supporting affidavit. In lieu of the latter The Centre had served a schedule of documents on which it intended to rely as to all notices of motion filed by FD and The Centre. The transcript also records that Senior Counsel for FD stated that it appeared that she needed to put on another notice of motion seeking an extension of time in which to bring the action against The Centre. Senior Counsel stated that he envisaged affidavits having to come from Ms Waters and FD. 123 Thereafter there was a change in Senior and Junior Counsel representing FD. The new Senior Counsel advised Ms Waters that no application should be made at that stage by FD for an extension of time within which to sue The Centre and that the Limitation Defence raised by The Centre should be dealt with at the hearing. The materials before the Court suggest that FD and her advisers did not become aware of Dr Milton's report of 29 September 2000 until late 2001-early 2002. The Centre had begun counselling FD by early 1994, if not before, and that counselling continued until 1998 and possibly longer. 124 By her letter of 14 September 2005 Ms Waters indicated that a notice of motion seeking an extension of time would not be filed nor proceed to a hearing on 28 September 2005. I can well understand the new Senior Counsel taking the view that the limitation point should be resolved at the hearing of the action and the problems which could arise if FD proceeded on other than oral evidence from her. 125 The new Senior Counsel and new junior counsel for FD appeared to proceed on the assumption that because FD was not litigating the question of an extension of time within which to sue The Centre, its application to strike out FD's claim would not raise a limitation point. The new counsel complained that the amended Notice of Motion should have expressly stated that the basis of the claim of The Centre to have the statement of claim stayed or dismissed generally. The Centre's counsel responded that there was no obligation to state in the Notice of Motion the basis of the claim to stay or dismiss generally the statement of claim. Further, The Centre contended that the former Senior Counsel appreciated what was afoot when he stated that FD would need to file a Motion seeking an extension of time. The Centre's defence expressly raised the limitation point. Counsel for The Centre contended that FD's solicitor should not have accepted the new Senior Counsel's advice but fully explained what had transpired on 21 July 2005 and, I gather, insisted that they be prepared to meet a limitation argument and/or obtain an extension of time in which to sue The Centre. The Centre submitted that it should have been obvious to her in the context of what took place in Court on 21 July 2005 that The Centre, by its Motion, was raising a limitation point, that FD would have to meet this, that this was one of the matters to be resolved during the hearing on 28-30 September 2005 and that she should have instructed counsel that they had to be prepared to meet the limitation point on the defendant's Motion. 126 The defendant on its amended motion was going to rely on the contention that FD was not under a disability from 1994 to 1998 and refer to the reports of Dr Williamson. From the history appearing in the reports there were periods when FD was in employment and when she did not appear to be under a disability, but there were periods when she appeared to be affected by her condition and ill-health. Under s 50F(1) of the Limitation Act 1969 where a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the period of the disability. Under s 50(2)(b) a person is under a disability while the person is incapacitated for a continuous period of 28 days or more. 127 Under s 50(4) "incapacitated person means a person who is incapable of, or substantially impeded in the management … of her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: a) any disease or any impairment of his or her physical or mental condition, or b) restraint,. of … her person, lawful or unlawful, including detention or custody under the Mental Health Act 1990 ." 128 There is a reference to FD being scheduled under the Mental Health Act and to her being in the Banksia Unit at Tamworth, which is described as a secure unit. She was transferred from Armidale to the Banksia Unit. The counselling notes to which Dr Milton refers and his opinions suggest a person who is substantially impeded in the management of her affairs in relation to the cause of action against The Centre. On one view FD seemed to embrace the suggestions of DID. This is a case where the issues of incapacity and disability and during what periods, will not be determined on the views of the psychiatrist but on the whole of the medical and counselling evidence. That would best be done at the hearing of the action with access to all the hospital and medical records and the records of the State and The Centre. 129 Senior Counsel for FD at the hearing before the List Judge on 21 July 2005 advised of her recent hospitalisation and the difficulties caused by the fluctuation in her condition. It was not stated under what section the extension would be sought. The possibilities include s 60C, s 60G, probably the latter, with it being contended on FD's behalf that she was unaware until the service of Dr Milton's report of the nature or extent of personal injury suffered or was unaware of the connection between the personal injury and The Centre's act or omission at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted. 130 An application for an extension of time would have been unnecessary if it were held that in total the periods of suspension of the limitation period running were sufficient to prevent the limitation period operating and barring FD's claim. There was one further factor to be considered, namely, if FD succeeded against the State it could sue The Centre. A judge hearing The Centre's Motion may have decided to adjourn that Motion to the hearing of the action and hear it concurrently with the action. 131 On reflection, the new Senior Counsel had to consider a very complex situation. Amongst other matters, in the light of the Court determining that the action proceed with FD giving oral evidence in chief, the new Senior Counsel would have to consider the desirability of FD being asked to swear an affidavit sufficiently comprehensive to ground an application for an extension of time and being cross-examined. The new Senior Counsel was able to read the transcript of 21 July 2005. There were many factors to be taken into account. In the circumstances I do not think that the solicitor can be blamed for acting on the considered advice of her new Senior Counsel. The circumstances do not justify making a costs order against the solicitor. 132 The Centre was perhaps fortunate that FD found the proceedings and the delay so onerous that she decided not to proceed against The Centre. Her letter of 13 December 2005 to the Court makes the point that the proceedings were having an adverse effect upon her. One curious result of the cancellation of the hearing date of 4 April 2005 a month before the hearing was due to start and the adjournment of the proceedings on 29 September 2005 was those events led to FD not proceeding against The Centre and The Centre thereby not incurring the costs of a difficult trial expected to last over 8 weeks. Even if The Centre had succeeded it was doubtful whether, in fact, it would have been able to recover any of its costs from FD. Sanderson Order 133 Subject to the exception mentioned earlier The Centre was anxious to obtain an order that the State pay all The Centre's costs of the proceedings in view of FD's impecuniosity. The Centre did not submit that a Bullock order should be made. It contended that principles should be developed to give The Centre its costs against the State by analogy from those specified in Sanderson v Blyth Theatre Company 1903 2 KB 533 and Bullock v London General Omnibus Co 1907 1 KB 262. 134 The starting point of The Centre's argument was that the Court had full power over the costs of all parties to an action involving two defendants where relief is sought in the alternative. 135 In Gould v Vaggelas (1983-1985) 157 CLR 215 at 229 and 230 Gibbs CJ said that the ground on which a Bullock order may be made was "that the costs which the plaintiff had been ordered to pay to the defendant who succeeded and which the plaintiff recovers from the defendant who has failed 'are ordered to be paid by the unsuccessful defendant on the ground that … those costs have been reasonably and properly incurred by the plaintiff as between him and the unsuccessful defendant'." Gibbs CJ also said at 230: "… the true position was clearly stated by Blackburn CJ in Steppke v National Capital Development Commission (1978) 39 LGRA at 100 'there is a condition for the making of a Bullock order, in addition to the question whether the suing of the unsuccessful defendant was reasonable, namely, that the conduct of the unsuccessful defendant had been such as to make it fair to impose some liability on it for the costs of the successful defendant'." At 229 Gibbs CJ remarked: "… if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff's error or overcaution." 136 At p247 Wilson J held that a Bullock order may be made where the costs in question have been reasonably and properly incurred by the plaintiff as between him and the unsuccessful defendant. He did not refer to the condition which Blackburn CJ formulated. Wilson J added that the making of a Bullock order was within the discretion of the trial judge. Murphy J agreed with Wilson J about the granting of a Bullock order. Brennan J, at 260, stated the principle in similar terms. He expressly held that the conduct of the respondents made it reasonable and proper for a Bullock order to be made. Dawson J did not discuss the making of a Bullock order. 137 In Johnsons Tyre Foundry Pty Ltd v Maffa Corporation (1948) 77 CLR 544 the plaintiff joined the Shire Engineer as a defendant because the Shire disowned the transaction. In those circumstances it was held that it was reasonable to join the Shire Engineer. He was successful. In view of the conduct of the Corporation a Bullock order was made that it pay the plaintiff's costs including those of the Shire Engineer which the plaintiff was liable to pay. 138 In Hong v A & R Brown Ltd 1948 1 KB 515 at 522-533 Lord Greene MR adopted the well-established proposition that there was no rule but each case must turn upon its own circumstances. Lord Greene MR rejected the proposition that because it was reasonable for the plaintiff to join two defendants, the plaintiff was entitled as a matter of right to a Bullock order. Asquith and Evershed LJJ agreed. Everything depends on the particular facts. 139 In Goldsworthy v Bricknell 1987 1 Ch 378 at 418 the Court of Appeal emphasised that the authority of the Court over costs is very wide. That observation applies in New South Wales. While the majority of the cases have dealt with the Bullock orders and the principles which apply, the authority of the Court is not limited to orders in those terms. As long ago as 1903 Romer LJ in Sanderson 1903 2 KB 533 at 539 said: "The modern practice, in order to avoid circuity has been in many cases where there has been no jury to order the unsuccessful defendant to pay directly to the successful defendant his costs." 140 The particular facts are of importance in the present case. The Centre will recover its costs of the State's cross-claim against The Centre. That would entitle it to its costs of repelling the case based on Dr Milton's report. The State has not engaged in any misconduct. It sought an expert report from an experienced psychiatrist as to the causes of FD's condition and the allegations made against the State. Dr Milton in a detailed report referring to much of the material in The Centre's records, expressed firm views. The State made a cross-claim based on Dr Milton's report. Eventually a copy of that report was served on FD's solicitors. It became a matter for FD and her advisers whether they sued The Centre based on that report which did not adopt the same approach as Dr M Williamson. Dr Williamson disagreed with Dr Milton. Nevertheless, it was reasonable for FD to seek to add The Centre as a party, especially when dealing with such a difficult case, Ultimately, it remained FD's decision whether to add The Centre as a defendant. 141 The State was not an unsuccessful defendant. It has not been held to be liable to FD. A verdict has been entered in the State's favour. There was no separate deed by which FD received compensation. The State had paid, or was liable to pay a substantial sum on account of costs, namely $100,000 for FD's costs against the State and the costs of The Centre in resisting the cross-claim. The latter would involve extensive preparatory costs. The State made a business decision and thereby avoided the costs of a lengthy trial. It was proposing to call a substantial number of witnesses as well as three psychiatrists. This freed a substantial number of people to go about their business. The costs to be paid by the State would be relatively minor when compared with those of a lengthy trial, even assuming that the State succeeded as against FD. She could not pay the costs. 142 The Centre seized upon the payment of $100,000 for FD's costs and submitted that it was the only wholly successful defendant. That was not the result of achieving success at a hearing on the merits of the action but because FD decided that because of the effect of the proceedings on her, she did not wish to continue. The Centre was saved the costs of a lengthy difficult trial in which there would be many contested issues. 143 In the whole of the circumstances it would be neither fair nor just to order the State to pay The Centre's costs of resisting FD's claim against it. 144 The State relied upon a further point on the issue whether it should be ordered to pay The Centre's costs of resisting FD's claim, namely, The Centre's `decision not to cross-claim against the State. I have not taken this further point into consideration in reaching the conclusion mentioned in the preceding paragraph but as it may bear upon the costs of the various motions before the Court I shall deal with it. 145 After being served with the cross-claim and the amended statement of claim in March 2002 The Centre did not file a cross-claim. It only indicated an intention to do so on 12 May 2005 when FD and the State attempted to file Terms of Settlement in Court. By then The Centre was more than three years out of time to file any cross-claim. 146 The matter was frequently before the Court during 2003 and 2004 as the Court file shows. The Centre did not dispute that it gave no indication prior to 12 May 2005 that it intended to file a cross-claim against the State. The State submitted that in these circumstances, it was entitled to proceed on the basis prior to 12 May 2005 that The Centre did not wish to proceed against the State. Thus FD and the State were entitled to settle the proceedings between them. 147 By not cross-claiming against the State, The Centre must have proceeded on the basis either that FD would fail against both the State and The Centre or that FD and the State would fail against The Centre. The Centre may have been wary of the defendants attacking each other and thereby helping to establish FD's case against one or both of the State and The Centre. The Centre may also have considered that if FD succeeded against it and the State, The Centre would then have been able to cross-claim against the State as "a person who is, or would if sued have been liable in respect of the same damage. The Centre may have considered the possibility that the State might succeed against FD, thereby depriving itself of the opportunity to successfully cross-claim, but decided to adopt the course that it took.. 148 The State submitted that The Centre had adopted a high risk strategy, that it should not now be permitted to retrospectively protect itself when it could have done do by simply cross-claiming against the State and that had it done so the State would not have been able to successfully settle with FD without also settling with The Centre. 149 The State further submitted that the filing of a cross-claim by The Centre at the first appropriate opportunity gives expression to the policy of having all the issues between the parties resolved at the one time including costs and achieving the object of facilitating the just, quick and cheap resolution of the real issues in the proceedings – s 56 of CPA. 150 I decline to order that the State pay The Centre's costs of resisting (defending) FD's claim against the State. As between the State and The Centre each should bear its own costs of defending FD's claim against it. FD must bear The Centre's costs of the proceedings between them. As to the costs of the plaintiff's motion of 4 Jul 2005 seeking to have the Terms of Settlement as between FD and the State filed and orders made in accordance with such Terms, FD has not appeared since 29 September 2005 and sought any order as to costs. In the end, because FD did not wish to proceed with her claim against The Centre and that could be dismissed before dealing with the Terms of Settlement, it became unnecessary to resolve what should be done having regard to the fact that no cross-claim had been foreshadowed prior to 12 May 2005. In the circumstances I propose to make no order as to the costs of any party of the motion as to the Terms of Settlement. 151 As to the costs of FD's motion to file a further amended Ordinary Statement of Claim, FD must bear the costs of The Centre of that motion. The amendment was not made and no costs would be thrown away by the amendment. While the State was a party to that motion, it was not adversely affected by it, and the amendments sought being as against The Centre based on Dr Milton's report, no order should be made as to the costs of the State of that motion. 152 As to the costs of The Centre's application that Penelope Waters pay The Centre's costs thrown away due to the vacation of the hearing date of 4 April 2005 and to the adjournment of the hearing of The Centre's amended motion of 23 July 2005 on 29 September 2005, The Centre must pay the costs of Ms Waters of that application including the reserved costs on the ordinary (party/party) basis. FD must pay The Centre's costs so thrown away. Those costs should be modest when FD's claim against The Centre did not proceed and the claim of FD against the State was settled. As to the costs of The Centre's application that the State pay The Centre's costs of defending FD's claim against it, The Centre must pay the State's costs of that application. 153 The formal orders of the Court are: 1. Application by The Centre that the State pay The Centre's costs of resisting (defending) FDs claim against it dismissed. 2. As between the State and The Centre, each respectively bear its own costs of defending FD's claim again each; no order as to such costs. 3. FD pay The Centre's costs of the proceedings between them. 4. FD, the State and The Centre each bear her or its costs respectively of the application by FD to file the Terms of Settlement and have orders made in accordance with such Terms; no order as to such costs. 5. FD pay the costs of The Centre of FD's application to file a further ordinary amended statement of claim. No order as to the costs of the State of that application. 6. The Centre pay the costs (including the reserved costs) of its application that Penelope Waters pay The Centre's costs thrown away due to the vacation of the hearing date of 4 April 2005 and to the adjournment of the hearing of The Centre's amended motion of 23 July 2005 on 29 September; such costs to be payable on the ordinary (party/party) basis. 7. FD pay The Centre's costs thrown away due to the vacation of the hearing date of 4 April 2005 and to the adjournment of The Centre's amended motion of 23 July 2005 on 29 September 2005. (The first part of this Order repeats the Order made by the list judge on 3 March 2005). 8. The Centre pay the State's costs of The Centre's application that the State pay The Centre's costs of resisting (defending) FD's claim against it. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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