"A" bht "S" v State of NSW [2011] NSWDC 54

Catchwords: PRACTICE AND PROCEDURE - applications by defendant in each of two proceedings brought by plaintiff seeking damages for breach of duty of care - defendant seeking to either dismiss or permanently stay the plaintiff's proceedings pursuant to UCPR r 12.7 - claim of prejudice due to effluxion of time resulting in a claimed inability to defend the proceedings - death of a witness from natural causes, unwillingness of four expert witnesses to give evidence on damages issues due to alleged threats by plaintiff - substantial delays occurring in the litigation before recent appointment of a tutor - whether the relief sought is justified in the circumstances - whether names of judicial officer and counsel should be the subject of non-publication orders - requirements of open justice - whether non-publication order relating to plaintiff and expert witnesses in the plaintiff's case is justified District Court New South Wales Medium Neutral Citation: "A" bht "S" v State of NSW [2011] NSWDC 54 Hearing dates: 15, 16 & 23 June 2011 Decision date: 01 July 2011 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1. Non-publication orders are made with respect to the names and identification details of the plaintiff "A", his tutor "S", the solicitors "CSO 1", "CSO 2", "CSO 3", "S1" and "Dr A", "Dr B", "Dr C" and "Dr D"; 2. Each of the motions filed by the defendant seeking to dismiss, or alternatively, to stay the plaintiff's proceedings, are dismissed; 3. The costs of the dismissed motions are to be costs in the cause; 4. The exhibits may be returned; 5. I will hear the parties before making case management directions; 6. Liberty to apply on 7 days notice if further orders are required; 7. I order that the document marked "MFI 3" be placed in a sealed envelope which is not to be opened except by, or at the order of a Judge of this court, or by a Judge of the Court of Appeal on a review of this order . Catchwords: PRACTICE AND PROCEDURE - applications by defendant in each of two proceedings brought by plaintiff seeking damages for breach of duty of care - defendant seeking to either dismiss or permanently stay the plaintiff's proceedings pursuant to UCPR r 12.7 - claim of prejudice due to effluxion of time resulting in a claimed inability to defend the proceedings - death of a witness from natural causes, unwillingness of four expert witnesses to give evidence on damages issues due to alleged threats by plaintiff - substantial delays occurring in the litigation before recent appointment of a tutor - whether the relief sought is justified in the circumstances - whether names of judicial officer and counsel should be the subject of non-publication orders - requirements of open justice - whether non-publication order relating to plaintiff and expert witnesses in the plaintiff's case is justified Legislation Cited: Civil Liability Act 2002, s 5D Civil Procedure Act 2005, ss 56, 57, 58, 72 Crown Proceedings Act 1988, s 5 Federal Court of Australia Act 1976, s 50 Mental Health Act 1990, s 29 Mental Health (Forensic Provisions) Act 1990 Protected Estates Act 1983 Uniform Civil Procedure Rules 2005, r 12.7 Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Australian Broadcasting Commission v Parish (1980) 29 ALR 228 Batistatos v RTA & Anor [2006] HCA 27; (2006) 226 CLR 256 Bi v Mourad [2010] NSWCA 17 Brisbane South Regional Health Authority v Taylor [1996] HCA 541, (1996) 186 CLR 541 C v R (1993) 67 A Crim R 562 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Dixon v Whisprun Pty Ltd [2001] NSWCA 344 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Grassby v R [1989] HCA 45; (1989) 168 CLR 1 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 Herald & Weekly Times (2003) 130 FCR 435 Hogan v Australian Crime Commission [2010] HCA 21 Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 Hoser v Hartcher [1999] NSWSC 527 Hume v Council of the Kings School [2010] NSWSC 186 John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131 John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324 Lee v Keddie [2011] NSWCA 2 Mason v Demasi [2009] NSWCA 227 Mt Isa Mines v Pusey [1970] HCA 60; (1970) 125 CLR 383 Nominal Defendant v Saleh [2011] NSWCA 16 OV and OW v Members of the Board of Wesley Mission Council [2010] NSWCA 155 Pacanowski & Anor v Wakerman & Anor [2009] NSWCA 402 Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 Pelechoswki v Registrar, Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 RTA & Anor v Batistatos [2005] NSWCA 20 Reliance Financial Services v Griffiths [2010] NSWSC 1490 Richards v Cornford (No 3) [2010] NSWCA 134 Sali v SPC Ltd (1993) ALJR 841 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Category: Interlocutory applications Parties: "A" bht "S" (Plaintiff) State of NSW (Defendant) Representation: Mr M Rollinson (Plaintiff) Mr M Windsor SC with Mr R Lee (Defendant) Lexington Law Group Pty Ltd (Plaintiff) Crown Solicitor (Defendant) File Number(s): 1998/57017 2001/95166 Publication restriction: Orders have been made pursuant to s 72 of the Civil Procedure Act 2005 prohibiting the publication or disclosure of the names of the plaintiff, the tutor of the plaintiff and the witnesses who have been assigned litigation pseudonyms, including any information or detail from within the court file, or from the evidence in the proceedings, that either identifies, or tends to identify any of these persons. Judgment Table of Contents Interim non-publication order [1] – [6] Litigation pseudonyms [7] Final non-publication order [8] – [47] Plaintiff’s background and present circumstances [48] – [50] Notices of motion [51] – [52] The underlying cases [53] – [57] The issue – whether dismissal or stay justified [58] – [61] Procedural history [62] – [69] Evidence in support of the motions [70] – [77] Applicable legal principles [78] – [93] Submissions of the parties [94] – [105] Consideration [106] – [249] Legal capacity of the plaintiff [108] – [115] The legal aid issue [116] – [118] Analysis of medical and allied evidence [119] – [171] Claimed prejudice in establishing the facts [172] – [183] Non-application of Civil Liability Act 2002 [184] – [185] Plaintiff’s conduct / Defendant’s forensic decisions [186] – [202] Claim of prejudice due to death of witness [203] – [206] Claim of faded recollections of witnesses [207] – [217] Delay [218] – [247] Anticipated future want of due despatch [248] – [249] Conclusions [250] – [264] Disposition and costs [265] – [268] Orders [269] Interim non-publication orders 1 At the commencement of the hearing of these motions, senior counsel appearing for the applicant / defendant, applied for an interim non-publication order pursuant to s 72 of the Civil Procedure Act 2005 [" CP Act "]. The proposed order sought to secure the non-publication and non-identification of the names of counsel, solicitors, deponents to affidavits, the authors of expert reports annexed or exhibited to affidavits, and also the name of the judicial officer allocated to hear these applications. 2 The stated basis of that interim application was a past history of threatening behaviour alleged to have been initiated by the plaintiff towards expert witnesses and legal practitioners retained by the defendant, and towards a Judge involved in previous interlocutory and case management hearings in these matters. 3 The particular nature of those threats is set out in greater detail at paragraphs [148] to [155] of these reasons. 4 That interim application was made in the absence of the respondent / plaintiff because he is in lawful custody, however, it was made in the presence of his legal representatives, and it was not opposed by his counsel. At that time there was no application for non-publication of the name of the plaintiff. 5 For the initial purposes of hearing the interim application, I was satisfied that there was prima facie justification for the making of the interim orders as sought. Accordingly, I acceded to the application for interim non-publication orders in the terms sought pending a full hearing and argument. 6 The factors that I considered to have weighed in favour of making the interim orders as sought were that it was appropriate to do so for the purpose of hearing that initial application, it was not opposed by counsel for the respondent / plaintiff, and it was in conformity with the procedure that had been adopted by other judges in past interlocutory applications where orders had been made of a like nature in the present proceedings. I also considered the interim orders were indicated because, on the face of the materials presented, it appeared to me that it was necessary to do so in order to secure the proper administration of justice at that initial stage of the hearing of the applications before the court: s 72 of the CP Act . Interim litigation pseudonyms 7 Interim litigation pseudonyms were assigned to the persons identified by the names that are listed in MFI "3", and also with respect to "Dr E", who was subsequently mentioned in evidence and argument on the interim application. The identities of those persons whose names were the subject of the interim non-publication order were assigned the following interim pseudonyms: (1) Judicial Officer - "DCJ5"; (2) Senior Counsel for the applicant / defendant - "Crown 1"; (3) Junior Counsel for the applicant / defendant - "Crown 2"; (4) Junior Counsel for the applicant / defendant - "Crown 3"; (5) Counsel for the respondent / plaintiff - "PL"; (6) Solicitor for the applicant / defendant - " CSO 1"; (7) Solicitor for the applicant / defendant - " CSO 2"; (8) Solicitor for the applicant / defendant - " CSO 3"; (9) Solicitor for the respondent / plaintiff - "S 1"; (10) Consultant psychiatrist - "Dr 1"; (11) Consultant psychiatrist - "Dr A"; (12) Consultant clinical psychologist - "Dr B"; (13) Consultant psychiatrist - "Dr C"; (14) Consultant psychiatrist - "Dr D"; (15) Consultant psychiatrist - "Dr E". Final non-publication orders 8 Following the conclusion of submissions on 16 June 2011 these matters were re-listed on notice on 23 June 2011 for the purposes of further argument on the justification for the making of final non-publication orders having regard to the limited power of the court to make such orders, and having regard to the principles of open justice. In the paragraphs that follow I set out the relevant principles for the purpose of dealing with those arguments. 9 The express power of this court to make non-publication orders in civil cases is discretionary and is limited by the terms of s 72 of the CP Act , which provides: " 72 Court may prohibit disclosure of information The court may, by order, prohibit the publication or disclosure of any information tending to reveal the identity of: (a) any party to proceedings, or (b) any witness in proceedings, if it is of the opinion that it is necessary to do so to secure the proper administration of justice in the proceedings." 10 Questions concerning the administration of justice are matters to be determined openly by the court in which the dispute between the parties arises and where the tribunal has a duty to act judicially: Hogan v Australian Crime Commission [2010] HCA 21 at [8], following R v Rogerson [1992] HCA 25; (1992) 174 CLR 268, per Mason CJ at [2]. 11 The provisions of s 72 of the CP Act have a similar objective to s 50 of the Federal Court of Australia Act 1976 [" FCA Act "] in that both provisions require that the requirement of necessity be shown for the making of a non-publication order to secure the proper administration of justice in the case of the CP Act , and to prevent prejudice to the administration of justice in the case of the FCA Act . In my view there is no relevant difference between the objectives of these two legislative provisions for present purposes. 12 In the High Court's construction of s 50 it was observed that " necessary " was a strong word and in the context of the administration of justice, the consideration of whether non-publication orders under that section were necessary, the relevant and specific exercise was that of judicial power in open court: Hogan , at [30]. The same construction applies to s 72 of the CP Act . 13 Once matters of fact are introduced into evidence in open court the principles of open justice are engaged: Hogan at [41]. The need for consideration of the imposition of restraints on the disclosure of information given in evidence or related in argument only become relevant where disclosure would prejudice the proper exercise of the adjudicative function of the court. In this regard, the tender of evidence was noted to be a forensic decision, and the " price of such a decision may be the subsequent disclosure, as is often the case in litigation, of embarrassing publicity ": Hogan at [43], following Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 233: Herald & Weekly Times (2003) 130 FCR 435 at 444. 14 The applicant / defendant in these proceedings pointed to the fact that in the past, a Judge of this court had been threatened by the plaintiff at an earlier stage of the proceedings, and one of the counsel who had previously been briefed to represent the applicant / defendant at an earlier interlocutory hearing, namely "Crown 3", had been intimidated in circumstances where he felt compelled to return his brief. The applicant / defendant also pointed to evidence that one of its solicitors had felt compelled to seek and to successfully obtain an apprehended violence order against the plaintiff. 15 The matters identified by the applicant / defendant go beyond considerations of possibly embarrassing publicity, but rather go to the security of proceedings conducted in court in the course of administration of justice. 16 The applicant / defendant argued that the requirements of the principle of open justice must yield where the interests of justice are at stake as the open administration of justice serves the interests of society such that open justice is not an absolute end in itself: John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131 per Kirby P at p 141. In that case, Kirby P dissented from the majority. In the context cited, Kirby P was referring to circumstances where the very openness of court proceedings would destroy the attainment of justice in the particular case such that the rule of openness must be modified to suit the exigencies of the particular case. 17 It is beyond question that inferior courts of record are bound by the terms of the statutory jurisdiction conferred upon them, but there is an implied authority to uphold, protect and fulfil the judicial function by ensuring that justice is administered according to law and in an effective manner: John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 per McHugh JA at 476. 18 The exercise of an implied authority must be determined by questions of necessity, but ultimately, that exercise is limited by the jurisdictional parameters within which the court functions: Grassby v R [1989] HCA 45; (1989) 168 CLR 1, at pp 16-17. Questions of necessity are to be determined by considerations of reasonableness: Pelechoswki v Registrar , Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 at p 452. 19 Pseudonyms are commonly used and the reason for this is to protect witnesses and informants in proceedings in courts, and such procedures offer little in the way of interference with the open and proper administration of justice: C v R (1993) 67 A Crim R 562, per Hunt CJ at CL at p 564; OV and OW v Members of the Board of Wesley Mission Council [2010] NSWCA 155 at [79]; Hume v Council of the Kings School [2010] NSWSC 186 at [33]. 20 Since this court has a limited statutory jurisdiction, with only limited powers to make non-publication orders of the kind that are sought, the test of necessity is required to be fulfilled before non-publication orders can be justified, and that test must be applied with strictness: John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324 per Spigelman CJ at [51]; (2004) 61 NSWLR 344. 21 Although the decision in John Fairfax Publications Pty Ltd v District Court of NSW concerned criminal proceedings, I see no relevant distinction in respect of civil proceedings. Where the potential exists for conflict to arise between the proposed exercise of limited statutory powers, whether express or implied, and the principle of open justice, the overriding requirement is that the latter should prevail. 22 In the construction of s 72 of the CP Act and in the context of the considerations cited in John Fairfax Publications Pty Ltd v District Court of NSW , there is a confluence which requires that a necessity be demonstrated for making the orders sought. 23 Guided by the foregoing principles, and for the reasons that follow, I have determined that the interim non-publication order made at the outset of the hearing of the applications should be rescinded in part in conformity with the interests of open justice. 24 The terms of s 72 require a strict reading. Such a reading confirms that this court does not have the power to order non-publication of the identities of persons who are neither parties, nor witnesses nor potential witnesses to the proceedings. The explicit power conferred by s 72 does not extend to a general implied power to prohibit the publication or the disclosure of the identities of the legal practitioners appearing for the parties, or the identity of the judicial officer allocated to hear the case. An order in those terms requires an implication of necessity. 25 It appears to me that in the case of legal practitioners, a just exception arises in respect of those legal practitioners who have given evidence in affidavit form, which necessarily brings them directly within the explicit ambit of s 72. 26 It also seems to me to be appropriate that protection from identification be afforded to persons who were engaged as potential expert witnesses, but who are no longer prepared to give expert evidence in the proceedings following actual or perceived threats having been made to them. Such persons are not compellable to give evidence once they have withdrawn their consent for the use of their expert reports as evidence in the proceedings. In such circumstances, it is only just that their names be withheld from publication in respect of evidence given at an interlocutory stage which refers to them by name. The apparent necessity for that order is that these persons are no longer involved in the cases and the apprehensions over their security needs to be respected especially since they will not feature in the evidence at a trial. Accordingly, I am satisfied that the interests of justice require that in these proceedings, the names of witnesses "Dr A", "Dr B", "Dr C" and "Dr D" should be withheld from publication. 27 In contrast, on a consideration of the respective positions of "Dr 1" and "Dr E", I cannot see a proper basis that can be implied from within the terms of s 72 to make an order prohibiting the publication of their names where their reports have been tendered in evidence in these applications and on issues to be decided: Hogan , at [43]. There is no evidence of a direct threat having been made to these witnesses. Therefore, in my view no necessity has been established for the making of a non-publication order in relation to their names. 28 Given that the plaintiff must rely upon the opinions of these two experts for his case to succeed, it is difficult to envisage a relevant implied threat to those witnesses so as to justify the making of a non-publication order in respect of their names and their identities. Since each of those experts have examined the plaintiff with his concurrence and at the request of his solicitors, and since "Dr E" has seen the plaintiff on a number of occasions over time including for treatment, it must be assumed that the plaintiff most probably knows of the respective identities of these two experts. In this regard, I must observe the principle that a court should not make orders that are futile. 29 The applicant / defendant also sought to include in the category of exceptions, the identity of "PL", namely counsel for the respondent / plaintiff. Although that course was not opposed by "PL", I consider that it would not be reasonable or realistic to make a non-publication order in his case. It would appear to be somewhat unrealistic that the names of the plaintiff's legal representatives, other than the one whose evidence was read in these applications, be the subject of a non-publication order. This is especially so in circumstances where the plaintiff must ordinarily be taken to know, and is entitled to know, which firm of solicitors and which counsel acts for him in these proceedings, albeit that those representatives appear to have been retained by the tutor. 30 As to the positions of a judge and of counsel, in my view, the making of any order for the non-publication of the identities of the judicial officer assigned to hear the case and counsel retained to appear for the parties would be in conflict with the requirements of open justice. The principles of open justice require that the parties in the proceedings, and the public, have a direct interest in knowing such matters. 31 Open justice must mean justice administered in open court and in public view, where evidence is tendered, where arguments are presented and where accountable decisions are openly made on the issues to be determined. Any departure from those principles must be based on good reasons founded upon an actual necessity: s 72; Hogan at [30]. 32 In my view, it is insufficient to say, as was submitted, that the de-identification of the judicial officer and counsel would not prevent or hinder the adjudicative process, including the accountability of that process on appeal if the need arose. In my view, the complete answer to that submission is that first, the public generally, and the plaintiff in particular, has a right to know which counsel appears in, and which judge decides, these particular cases, and secondly, the test of necessity still needs to be fulfilled as a pre-condition. 33 From the court's perspective, and the perspective of s 72 of the CP Act , the administration of justice by a court necessarily occurs in open court and involves the receipt of evidence and submissions from the parties, followed by an adjudication on the issues that are required to be decided. 34 On the very specific issue of the argued necessity for making the orders sought, it must be assumed that the court is a secure environment in which justice is delivered on the issues between the parties. Regard must be had to the available legal mechanisms, including sanctions, for appropriately dealing with threats to the proper administration of justice. It must be assumed that the court is a physically secure place for litigation to be properly conducted. Courts have security arrangements in place to ensure that this is so. 35 In my view, it must be assumed that questions of apprehension of potential breaches of the security of the court, and apprehensions over threats to the safety of those who constitute the court, the officers of the court, parties and witnesses, are addressed by the deterrent provisions of the criminal law, and by the general law of contempt in the event of an actual breach of security. Otherwise, courts could not effectively function. 36 In my view, in these present applications, it is inappropriate to draw upon the events described at paragraphs [148] to [155] and paragraphs [191] to [196] of these reasons, where those events have occurred more than 6 years ago, without evidence of recent repetition or the re-iteration of the threats, and to use those past occurrences as a justification for now arguing that the non-publication orders now sought are " necessary ". 37 The arguments advanced by the defendant in these applications are based on past apprehensions. There is no evidence of a current threat to the administration of justice that makes it necessary to suppress the identification of counsel and the judicial officer hearing these applications. If these past apprehensions were to reasonably arise again in the course of preparation of this litigation for trial, and were to prove to be current, the potential sanctions afforded by the criminal law and the provisions of the Mental Health (Forensic Provisions) Act 1990 are available as the proper mechanisms for dealing with such matters. I do not accept that the evidence adduced in these applications has demonstrated necessity for the full extent of the non-publication orders sought by the applicant / defendant. 38 Accordingly, and in conformity with the preceding reasons, I therefore rescind in part the interim order I made at the outset of the hearing insofar as that order related to the litigation pseudonyms numbered (1), (2), (3), (4), (5), (10) and (15) as set out in paragraph [7] of these reasons. 39 I confirm as final, the remaining part of the interim non-publication order. The allocation of litigation pseudonyms numbered (6), (7), (8), (9), (11), (12), (13) and (14) as set out in paragraph [7] of these reasons is confirmed, and I make a final order in respect of those persons, prohibiting the publication or disclosure of any information tending to reveal the identifies of the persons described in the evidence by those pseudonyms. 40 I make that order because it appears to me to be necessary that I do so in order to secure the proper administration of justice in each of these proceedings in order to protect witnesses or potential witnesses appearing in the proceedings, from possible harm of the kind which has been threatened by the plaintiff in the past: s 72 of the CP Act . 41 The effect of that order is that in these reasons, whenever "Dr 1" and "Dr E" are referred to in evidence and argument, I shall refer to them by name. 42 In addition to the terms of the abovementioned non-publication order, I make a further order prohibiting the publication of the name of the plaintiff or any information that might tend to identify him. I make that order because I consider that it is appropriate to do so in the interests of the proper administration of justice between the parties in these proceedings: s 72 of the CP Act . 43 My reasons for making that further order concerning the non-identification of the plaintiff are that first, the events concerning the first filed proceedings occurred when the plaintiff was a minor, and the litigation involved matters of fact of a sexual nature where the plaintiff was the claimed victim of a series of alleged sexual assaults whilst in the care of school authorities. Secondly, the plaintiff is described in the medical and allied evidence as a person with significant psychological problems. It appears to me that since the plaintiff is a person who lacks legal capacity, it would be unjust to him to have the details of such matters published in the public domain so that he would be identified and not just embarrassed, but most likely humiliated by them. 44 In my view this is a likely consequence if a non-publication order in respect of his name and identity was not made, especially so given the nature of his psychological problems as is described in the medical and allied evidence tendered in these applications. The necessity for making the non-publication order with respect to the plaintiff is that he should not feel constrained in the giving of his evidence of such matters by reason of possible public identification. That is a matter that is central to the administration of justice in these cases. The plaintiff's legal incapacity also distinguishes his cases from the position identified in the decision in Hogan at [43]. 45 During the course of argument on 23 June 2011, counsel for the respective parties raised no objection to the proposed order that the name of the plaintiff be withheld from publication, and ultimately, counsel for the respondent / plaintiff supported the making of an order in those terms. Having satisfied myself that such an order is necessary, I have therefore assigned to the plaintiff the litigation pseudonym "A", and consistent with that order, I assign the plaintiff's tutor the litigation pseudonym "S". 46 Before leaving the issue of non-publication orders it should be noted that the non-publication orders I have made in these motions do not in any way alter prior non-publication orders that have been made in these proceedings concerning judicial officers and counsel, and those orders continue to have effect. The non-publication orders I have made in these motions do not and cannot bind any other judge when considering whether or not there is a need to make such orders or variations of them, on the future listings of these proceedings, whether those listings are for the consideration of any further interlocutory or case management matters that may arise on such occasions, or at a final hearing. 47 To give effect to the orders I have made, I make the further order that the document marked "MFI 3" and which identifies "Dr A", "Dr B", "Dr C", "Dr D", "CSO 1", "CSO 2", "CSO 3" and "S1", be placed in the court files in a sealed envelope which is not to be opened except by, or at the order of a Judge of this Court, or a Judge of the Court of Appeal on any review of this order. Plaintiff's background and present circumstances 48 The plaintiff is now aged 34 years. He is presently being held on remand in lawful custody in gaol awaiting a hearing of pending charges that are unnecessary to recount in these reasons, especially having regard to the plaintiff's entitlement to the benefit of the presumption of innocence in respect of those charges, notwithstanding that there has been a refusal of a grant of bail. 49 In this litigation there has been a history of difficulty and a lack of success in arranging for the entity formerly known as the Protective Commission of NSW to assume the role of the plaintiff's tutor in the context of the plaintiff's legal incapacity. This has led to the plaintiff's proceedings being stayed by order of this court since 23 June 2004. Recently, and after very lengthy procedural delays, on 28 January 2011, "S", a longstanding acquaintance of the plaintiff, has undertaken the role of tutor for the plaintiff. 50 The plaintiff has had an unfortunate background of difficulty during his school years. The various expert medical and allied reports annexed to the affidavit evidence suggests that the plaintiff suffers from a number of psychological disorders, the nature, extent and causes of which, are said to be in substantial contention in these proceedings. That expert evidence will be necessarily analysed in the course of my consideration of the issues calling for decision in these motions. Notices of Motion 51 There are two notices of motion filed on 23 April 2010 in each of the two separate present proceedings between the parties. Each case involves the respondent "A" as the plaintiff, and the applicant, the State of New South Wales, as defendant. In each of the motions filed, the applicant / defendant seeks the following orders: "(1) The proceedings numbered 1998/57017 and 2010/95166 be dismissed generally pursuant to Part 12, Rule 12.7 of the Uniform Civil Procedure Rules 2005 or, alternatively, permanently stayed; (2) The plaintiff pay the defendant's costs of this motion; (3) The plaintiff pay the defendant's costs of the proceedings; (4) Such further or other order as the Court may deem fit." 52 These motions were originally returnable on 14 May 2010 and since then they have been successively adjourned during case management hearings and mentions between that date and the commencement of the hearing on 15 June 2011. The underlying cases 53 In the proceedings originally numbered 3245 of 1998, which were filed on 7 May 1998, and now numbered 1998/57017, the plaintiff claims damages in respect of repeated sexual and other abuse that he claims had been perpetrated upon him during the period 1989 to 1991 by fellow students at Glenfield Park School, a government-run special educational facility. It is alleged that such conduct occurred in circumstances that amounted to breach of the duty of care that was owed to the plaintiff by officers of the Department of Education, who assumed a parental duty towards the plaintiff, and in respect of whose acts or omissions the defendant is vicariously liable. [" the Education claim "]. 54 In the proceedings originally numbered 14065 of 2001, which were filed on 12 December 2001, and now numbered 2001/95166, the plaintiff claims damages in respect of an alleged aggravated sexual assault perpetrated upon him in 1999 by a fellow prison inmate whilst the plaintiff was lawfully incarcerated in his cell, and whilst he was in the care of the staff of the Corrective Services Commission of NSW. It is alleged that such conduct occurred in circumstances that amounted to breach of the duty of care that was owed to the plaintiff by officers of the Department of Corrective Services, and in respect of whose acts or omissions the defendant is vicariously liable. [" the DCS claim "]. 55 It is clear from the evidence tendered on these applications, that in the past, and over a considerable period of time, the plaintiff has harboured significant grievances about the events giving rise to the two claims which are the subject of the proceedings. The tendered material also suggests it is highly probable that the plaintiff's grievances about the events giving rise to the litigation, and about the litigation itself, continue to the present time, however it is not necessary for me to arrive at a conclusive finding on that issue for the purposes of determining the issues that arise for decision in these motions. 56 For the purposes of these applications, it is not necessary for me to refer to the detail of the pleadings filed by the plaintiff, or to consider the merits of the underlying cases, other than to observe that the pleadings filed in each of the two proceedings raise allegations that can be properly construed to identify appropriately framed causes of action that are permitted by law. This was conceded in the course of submissions by senior counsel for the defendant. 57 In each of the proceedings, the State of New South Wales has also acknowledged that a relevant and non-delegable duty of care was owed to the plaintiff. In each case, the defendant has also acknowledged that it has been correctly sued as the responsible entity, pursuant to s 5 of the Crown Proceedings Act 1988. The issue - whether past delays justify dismissal or permanent stay 58 The defendant has brought these motions seeking to either dismiss, or to permanently stay, the respective proceedings brought by the plaintiff, arguing that accumulated delays have been incurred in the proceedings to date, which has resulted in irremediable prejudice to the defendant. 59 This is claimed to have occurred as a result of the co-extensive conduct of the plaintiff in the nature of pursuing threatening conduct to medical experts, legal practitioners and a judicial officer, with the result that the defendant has made the forensic decision not to seek to obtain further expert medical or allied evidence, or to even rely on such expert medical or allied evidence as is presently in its possession. The defendant claims that significant, material or manifest prejudice has resulted from a claimed presumptive prejudice. 60 The issue calling for decision is whether the historical circumstances and events surrounding these cases justify dismissal of the plaintiff's proceedings, or an order that the proceedings be permanently stayed because of a claimed want of due despatch in pursuing the proceedings to date. 61 To justify an order for a permanent stay, the defendant must establish that on the available material, it is unlikely that a fair trial could be achieved on the issues between the parties that would ultimately call for decision. Procedural history 62 It is relevant that I set out something of the lengthy and complicated procedural history and chronology of the respective proceedings, before moving to a consideration of the merits of the issues calling for decision. 63 It is important to observe at the outset, that in each case, the plaintiff's proceedings were commenced within the required time, albeit towards the end of the respective limitation periods. Given that these applications do not involve limitation or extension of time issues, in my view, these claims fall into a separate category and there can be no relevant criticism or prejudice that arises from the circumstances of the timing of commencement of the proceedings: Brisbane South Regional Health Authority v Taylor [1996] HCA 541, (1996) 186 CLR 541, per McHugh J at p 555.2. 64 In the Education claim made in the first filed proceedings, which were filed on 7 May 1998, an examination of the court file reveals some 19 occasions on which the proceedings were listed for interlocutory or case management issues between 18 November 1998 and 6 August 2002 when the further case management of the proceedings became linked with the DCS claim. For completeness, the specific occasions on which the Education claim was case managed are listed in Appendix I to these reasons. 65 In the DCS claim made in respect of the second filed proceedings, which were filed on 12 December 2001, a similar examination of the court file reveals some 40 occasions on which the proceedings were listed for interlocutory or case management issues between 20 June 2002 and 5 April 2011. For completeness, those specific occasions are listed in Appendix II to these reasons. 66 Without intending to oversimplify the significance of the cumulative importance of those numerous listings outlined in Appendix I and Appendix II , and which are also referred to in the affidavit evidence, and in respect of which the details of those listings speak for themselves, the substantive effect of those listings has been that the plaintiff's proceedings have been stayed since 23 June 2004. From that time until now, considerable delay has obviously resulted from the non-progress of the proceedings. 67 In approaching the determination of these motions I have had regard to the detailed events embodied within Appendix I and Appendix II . Without diminishing the relative importance of the entire series of events described in the affidavit evidence or in the procedural notations on the court files, for the purpose of assessing the significance of cumulative delays in the proceedings, I have extracted the following shortened chronology of salient events from those more detailed sources. It should be observed that some of the dates set out in the chronology at paragraph 7 of the affidavit of "CSO 3" are not entirely reflected in the notations in the court files. I am unable to fully reconcile these, but for the purposes of these applications it is not necessary that I do so, as a broad overview of the course the litigation has taken, provides a sufficient perspective to deal with the issues to be decided. 68 The shortened chronology of relevant events is as follows: 1989-1991 Alleged sexual assaults at Glenfield Park School giving rise to Education claim, when plaintiff is aged 12 - 14 years. 11.05.1995 Plaintiff reached age of majority. 07.05.1998 Filing of Education proceedings. 1999 Alleged sexual assault in gaol giving rise to DCS claim. 14.02.2001 Vacation of hearing date fixed for hearing of Education claim which was scheduled to commence on 12.03.2001. Hearing vacated because of the stated need to seek the appointment of Protective Commission as tutor. 12.12.2001 Filing of DCS proceedings. 08.05.2002 Financial Management order made by Guardianship Tribunal under Protected Estates Act 1983. Plaintiff was deemed incapable of managing his own affairs. Management of the plaintiff's affairs was committed in the care of the Protective Commission of NSW. 24.06.2002 Self-represented plaintiff unsuccessfully sought the allocation of a hearing date for his cases. The List Judge raised concern over need to involve Protective Commission in the proceedings. Order made for the Protective Commission to file a notice of consent to act as tutor. That document was never filed because of concerns by Protective Commission over funding of the litigation. 18.09.2003 Orders made separating the hearing of the issues of liability and quantum. 08.03.2004 Scheduled hearing of defendant's application for a permanent stay of proceedings. (That hearing did not proceed as the hearing date for that application was vacated on 05.03.2004) 23.06.2004 Defendant secured an order for a stay in respect of both sets of proceedings pending the appointment of a tutor. 20.07.2004 Protective Commissioner informed the Crown Solicitor it would only act as tutor in the event of a full grant of legal aid. 12.08.2004 Vacation of the fixture for hearing that was scheduled to commence on 20.09.2004, with an allocated estimate of 30 days. Confirmation of the continuation of the previous order for a stay that had been ordered on 23.06.2004. Unknown Termination of grant of legal aid. 10.03.2005 Plaintiff's solicitor ceases to act following termination of grant of legal aid. 05.09.2005 Proceedings placed in the court's Inactive List by order of the Judicial Registrar. 22.11.2005 Guardianship Tribunal revoked the management order it previously made on 08.05.2002. 2005-2008 Proceedings remain in the court's Inactive List but are kept under annual review by the Judicial Registrar. 11.02.2008 Dismissal of plaintiff's application to the List Judge for an order removing the order for a stay of proceedings. 23.04.2010 Defendant filed the present notices of motion seeking dismissal of each of the plaintiff's proceedings, or alternatively, a permanent stay. 14.05.2010 First return date of present motions. Successive mentions of these motions took place before a Judge on 16.02.2010, 05.10.2010, 11.11.2010 and 25.11.2010 in connection with supervised case management by the court. 25.11.2010 Case management orders made, including a direction to the plaintiff to seek the appointment of a tutor. 21.12.2010 Plaintiff directed to arrange the appointment of a tutor if an order dismissing the proceedings was to be avoided. Proceedings stood over for further directions on 01.02.2011. 28.01.2011 Appointment of tutor. 05.04.2011 Directions hearing at which defendant's motion seeking dismissal or stay of plaintiff's proceedings is fixed for a hearing to commence on 15.06.2011. 15.06.2011 Commencement of hearing of the present applications. 69 I have not extracted the various dates on which the plaintiff's legal representation has changed, nor have I extracted the details of the multiple occasions on which the Protective Commission attended at various court mentions and directions hearings. Neither have I catalogued the chequered history of the plaintiff's applications for legal aid, but I have taken those facts into account in my overall consideration of the issues. Evidence in support of the motions 70 In support of these applications, the applicant / defendant tendered and read the following evidence: (a) An affidavit sworn by "CSO 3" on 1 March 2004; (b) An affidavit sworn by "CSO 2" on 3 December 2007; (c) An affidavit affirmed by "CSO 1" on 22 April 2010; (d) The 101 pages of documents comprising the Exhibit to the affidavit of "CSO 1" affirmed on 22 April 2010; (e) An affidavit sworn by Dr "A" on 13 June 2004; (f) An affidavit sworn by Dr "B" on 17 April 2004; (g) An affidavit sworn by Dr "C" on 17 June 2004; (h) An affidavit sworn by Dr "D" on 18 June 2004; (i) An affidavit sworn by "CSO 2" on 6 February 2008; (j) An affidavit sworn by "Crown 3" on 18 June 2004; (k) Exhibit "A" which comprised a certificate of death, certifying that Ms Louise Prytherch, a teacher formerly employed by the defendant at Glenfield Park School, and who was a relevant witness in the first proceedings. The certificate states that Ms Prytherch died on 1 July 1998; (l) An affidavit sworn by "CSO1" on 23 June 2011 enclosing an unsigned copy of a statement made by Ms Prytherch to investigating police officers on 16 May 1993 and related material. 71 "CSO 1", "CSO 2" and "CSO 3" are solicitors in the employ of the Crown Solicitor for NSW. "Crown 3" is a barrister who has obtained an apprehended violence order against the plaintiff. The experts referred to in the evidence as "Dr 1", "Dr A", "Dr B", "Dr C", "Dr D" and "Dr E" are in combination, medical or allied experts. Three of those are consultants in the field of psychiatry and one is a consultant psychologist. Each of them have examined the plaintiff at various times at the request of the defendant for the purpose of these proceedings. 72 The affidavit sworn by "CSO 1" on 23 June 2011 arose because during final submissions on 16 June 2011, on the issue of evidentiary prejudice, a question emerged as to the availability of a relevant statement obtained from the deceased witness in the Education claim, Ms Louise Prytherch. On 16 June 2011, at the conclusion of argument, the proceedings were stood over to 23 June 2011 to enable the parties to consider whether they wished to seek a search of archives for a copy of that statement, and whether the parties wished to make such other enquiries and submissions that might arise on this point. At the resumed hearing, those events resulted in the production of the affidavit of "CSO 1" sworn on 23 June 2011. 73 In his resistance of the defendant's applications, the plaintiff / respondent read the following evidence: (a) An affidavit of his solicitor "S 1", sworn on 2 May 2011; (b) The 123 pages of documents comprising Exhibit "A" to the affidavit of "S 1" sworn on 2 May 2011; (c) The 93 pages of documents comprising Exhibit "B" to the affidavit of "S 1" sworn on 2 May 2011. 74 The evidence I have examined included detailed medical reports to which I will refer, as well as the materials relating to Victims' Compensation proceedings brought by the plaintiff, and documents from the Guardianship Tribunal concerning matters to do with the plaintiff's legal capacity. 75 In addition to the evidence outlined above, with the consent of the parties, I have also had regard to the record of the procedural chronology that is evident from the notations that have been made on the court file at the various listing occasions in respect of each of the proceedings, the details of which are summarised in Appendix I and Appendix II to these reasons. 76 In this context, it is of significance that at a directions hearing convened on 1 February 2011, the parties agreed to the following direction: "5. The Plaintiff agrees to attend and co-operate with a medical examination to be arranged by the Defendant, subject to the Defendant's ability to find a medical specialist prepared to examine and report upon the Plaintiff and attend to give evidence if required." 77 Rather than describe the many annexures to the affidavits that are relied upon by the parties, in my consideration of the issues I will refer to the detail of those annexures where I consider that material to be relevant to the applications under consideration. Applicable legal principles 78 The power to make the orders for dismissal, or for a permanent stay, as is sought by the applicant / defendant in these applications, is to be found in r 12.7 of the Uniform Civil Procedure Rules 2005, which provides: "12.7 (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order the proceedings be dismissed or make such other order as the court thinks fit" 79 The question of whether there has been undue delay or an absence of due despatch requires an evaluative judgment having regard to the circumstances of the cases and any relevant surrounding events. 80 There is no controversy concerning the applicable principles that govern the exercise of discretion for the determination of applications such as these. Those principles may be briefly summarised as follows. 81 The regime under the Civil Procedure Act 2005 confers a wider discretion for dismissal of proceedings for want of prosecution than that which was provided by the previously prevailing general law principles: s 56 and s 61(3)(a) of the CP Act: Pacanowski & Anor v Wakerman & Anor [2009] NSWCA 402, per Basten JA at 26]-[28], considering Hoser v Hartcher [1999] NSWSC 527 and following Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175. 82 The various forms of prejudice that arise in litigation, including presumptive prejudice, are relevant considerations to be taken into account in the exercise of discretion: Pacanowski at [14]-[15] per Tobias JA, following Aon at [100]-[111]. 83 The exercise of discretion involves a balancing exercise such that a rigid formulaic approach should not be followed as there are no universal prescriptive criteria to be applied in all circumstances: Pacanowski , per Basten JA at [26], considering the criteria identified in Hoser v Hartcher . 84 The right of a party to pursue litigation is not unfettered as there are a number of interests that are also required to be considered, including those that are intrinsic to the parties, as well as having due regard to public resources, as was identified by Pembroke J in Reliance Financial Services v Griffiths [2010] NSWSC 1490 at [26]-[27], following Sali v SPC Ltd (1993) ALJR 841 at p 844, per Brennan, Deane and McHugh JJ. 85 Also of relevance is a consideration of the principles with respect to abuse of process by dilatory plaintiffs thereby inflicting unnecessary injustice upon defendants: Batistatos v RTA & Anor [2006] HCA 27; (2006) 226 CLR 256, per Gleeson CJ, Gummow, Hayne and Crennan JJ at [65] and [69]. 86 The considerations for the exercise of discretion are not exhaustive. Included in the mix of considerations that are to be taken into account are the legal status of the parties, occurrence of unreasonable delay due to the lapse of time, the relative responsibility for such circumstances arising, and the manner in which the burden of the claimed prejudice may have an impact on the rights of the parties to the litigation, and upon the outcome of the litigation. 87 The value-laden nature of the required balancing exercise in considering the ramifications of delay in the litigation process is evident from the range of remarks within the decision in Bi v Mourad [2010] NSWCA 17. 88 In that case, at [33], Young JA stated: "33 Primary judges must consider themselves free to exercise their discretions in this sort of case without the thought in the back of their mind that this court will weakly say, "Oh, we had better let the claim be adjudicated and the other side can be satisfied by an order for costs". This is not the clear policy of the legislator in the Civil Procedure Act ." 89 In the same case, at [47], Allsop P stated: "47 Delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act . It cannot always be done. This purpose is not through some parliamentary authoritarian or over-prescriptive view of how people should lead their lives; rather, it is through the keen recognition of the conduct of the courts, in particular in the 20th century, of the need to deal with cases expeditiously if they are to be dealt with justly. Delay and case backlog are not merely factors affecting the costs of delivering justice; they corrode the ability of the courts to provide individual justice. The reforms that have taken place under the Civil Procedure Act and the evident attempt by courts to ensure efficiency can be seen not merely to reflect worthy efforts for efficiency but also to be steps vital for the provision of timely individual justice. Views may differ of justice in any particular case; that is the nature of the term and the value-laden task of a decision-maker to do justice." 90 Also relevant to the consideration of these motions are the requirements of ss 56 - 58 of the CP Act which deal with the overriding purpose of facilitating a quick, just and cheap resolution of litigation, the emphasis of case management being the interests of justice, including justice between the parties. In this regard, in the context of consideration of delay in litigation, in Richards v Cornford (No 3) [2010] NSWCA 134 it was recognised that cases cannot always be resolved in a relatively timely fashion, as was identified by Allsop P, at [43]-[44], namely: "43 This being the nature of the process of litigation, the courts in this country in modern times, have sought to exercise control and supervision over litigation in order to see cases resolved in a relatively timely fashion. It cannot always be done . Parties, practitioners, courts and judges sometimes fall behind by reference to appropriate standards of efficiency and timeliness. Nevertheless, the need for the due despatch of the cases of litigants is ever-present and is a fundamental aim of the administration of justice. 44 To put the matter simply and bluntly, parties are entitled to expect that the costly and stressful, though necessary evil that is litigation be resolved with reasonable despatch so as to minimise, where reasonably possible , the time during which people are subjected to its rigours and strains." [Emphasis added] 91 In considering the interests of justice, the required consideration is the timely and appropriate administration of justice, with justice to both sides of the litigation: Lee v Keddie [2011] NSWCA 2, per Allsop P, at [11]. 92 In determining whether a fair trial is likely to be achieved in the circumstances, it must be recognised that the effluxion of time and the operation of chance will affect the evidence in the case but that will not necessarily prevent a fair trial as the circumstances of a trial need not be perfect or ideal: Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128, per Priestley JA at [79]. 93 My consideration of the issues calling for decision in these applications will be guided by the principles that I have summarised in the preceding paragraphs, but with the added consideration that in this case, appropriateness must be viewed in the context that one of the parties is a person affected by legal incapacity. Submissions of the parties 94 In the paragraphs that follow I set out the general effect of the submissions of the parties. 95 The applicant / defendant provided outline written submissions which were marked MFI "4". In essence, on behalf of the applicant / defendant in each case, it argued that if the proceedings were permitted to be continued, presumptive prejudice, and therefore manifest prejudice, would operate against the defendant in each of the proceedings. It was argued that this position has come about because of what was described as reprehensible conduct on the part of the plaintiff regarding threats he has made to medical experts, together with inherent difficulties for both proof of, and testing of, the plaintiff's claims. 96 The defendant has also placed great reliance on the significant passage of time since the claims arose, and without evidence, submitted this would have the effect of fading the memories of witnesses. Whilst that might be a truism of general application, no specific evidence was called to show that general truism had a specific application to this case. The defendant also relied upon the stated difficulty in obtaining medical and allied opinions from expert psychiatrists and psychologists in order to enable it to properly test and defend the claims brought by the plaintiff. 97 The defendant submitted that the accumulated delays in the respective cases have led to real and deleterious impacts upon the ability of the defendant to defend each of the plaintiff's claims. 98 The position of the defendant in the applications is summed up by the following extract from its submissions: "xiii. It would be manifestly quite unjust to allow these proceedings to go to what would in form be a trial but in substance would only be a ceremonial enactment of an opportunity to establish whether or not the plaintiff has the rights he claims: see generally Bastistatos , per Bryson JA at [81], Mason P at [1] and Giles JA at [2]." 99 The respondent / plaintiff provided a written outline of submissions in reply and these were marked MFI "5". In essence, those submissions argued that any prejudice to the defendant was not so great as to justify the drastic step of terminating the plaintiff's claims. It was argued that the plaintiff ought to be permitted to continue his cases to finality since his inability to at times prosecute his actions, a factor not always fully recognised by the plaintiff, was significantly related to his mental problems, and this issue has now been given appropriate attention. 100 The plaintiff submitted that all of those difficulties have now been addressed by the appointment of a tutor, the pursuit of a review for the grant of legal aid, and consent to important facilitative directions made by the court at a case management directions hearing that was convened on 1 February 2011, particularly the direction numbered 5, which I have already cited at paragraph [76] of these reasons concerning the preparedness of the plaintiff to co-operate with any medical examinations that might be arranged on behalf of the defendant. 101 In the light of those matters, it was submitted on behalf of the plaintiff that in reality, the defendant was seeking to in effect unfairly make an alternative argument for dismissal on the basis that the plaintiff's cases were " unjust " from the outset. The plaintiff submitted that: "[The] Just solution is to let the actions proceed but subject to tight timetable to force early resolution of the real issues". 102 Each party developed and supplemented their submissions with further oral submissions. 103 The defendant went on to argue that as a result of cumulative litigation delays that have occurred thus far without any form of finalisation of the proceedings, including delays referable to conduct on the part of the plaintiff in his contact with the defendant's medical and allied experts, presumptive and real prejudice has arisen. It was argued that such prejudice operates so as to preclude a fair trial of the issues, thus warranting the relief sought by the defendant in these motions. 104 The defendant also argued that the passing of time has without doubt adversely affected the quality, and therefore the reliability, of the plaintiff's own testimony on important matters of history, questioning whether he would in fact give evidence at all. It was further argued that the ability of the defendant to properly test the evidence of the plaintiff, and the expert evidence to be called on his behalf, has been significantly compromised by the passage of time, such that it is unlikely that a fair trial could be had. In that regard, as an indication of the argued prejudice it claims to have incurred, the defendant also pointed to the fact of the death of a key defence witness, an employee of the Glenfield Park School who would ordinarily have been called to give evidence in the Education claim. 105 In essence, the defendant asserted that according to the principles established in Aon , the point has been reached in the litigation where the plaintiff's litigation should not be permitted to continue. The position of the defendant was that the proceedings had been on foot for long enough and it was time for the defendant to be able to close its files in these matters. Consideration 106 At the outset of my evaluation, I take the opportunity to observe that it is beyond controversy that the plaintiff's proceedings have followed a tortuous path at a slow or glacier-like pace, which until the appointment of a tutor in early 2011, showed little sign of significant procedural or evidentiary progress. It must be said that for personal injury litigation, the plaintiff's proceedings have been on foot for an inordinately and unusually long period of time. 107 In the paragraphs that follow, I set out my consideration of the critical matters that were the subject of submissions: (a) Legal capacity of the plaintiff; (b) The legal aid issue; (c) Medical and allied evidence concerning the plaintiff's condition, including a review of the reports amenable to analysis, those reports not amenable to analysis, and the conclusions available to be drawn from that review; (d) Claimed prejudice due to doubtful accuracy in identifying underlying facts for expert witnesses. (e) Claimed prejudice from non-application of the Civil Liability Act 2002; (f) Claimed prejudice arising from conduct of plaintiff and the related forensic decisions made by the defendant; (g) Claimed prejudice to the defence of Education claim due to death of a key defence witness; (h) Claimed prejudice due to the faded recollections of witnesses; (i) Claimed prejudicial consequences of delay; (j) Claimed prejudice from anticipated future failure to achieve due despatch of the proceedings. Legal capacity of the plaintiff 108 On 8 May 2002 the Guardianship Tribunal made an order concerning the plaintiff under the Protected Estates Act 1983, stating that the plaintiff was a person who was incapable of managing his financial and legal affairs. 109 By that order, the management of the plaintiff's estate was committed to the Office of the Protective Commission. That order was stated to have been made on the basis of evidence in the form of the report of Dr Jonathan Phillips ["Dr 1"] dated 14 August 2001, and a report from Dr Thomas Clark dated 3 May 2002. The report of Dr Clark did not otherwise feature in evidence in these applications. 110 The Guardianship Tribunal's documentation indicates that in the past the plaintiff had been admitted to psychiatric hospitals at Rozelle, Caritas and Corrections Health Service. The details of the diagnoses or treatment, or the duration of the admissions have not been identified in the evidence. 111 On 22 November 2005 the Guardianship Tribunal revoked its previous orders made on 8 May 2002. Notwithstanding the revocation of those orders, it is common ground between the parties that the plaintiff is a person who should be regarded as being incapable of managing his own affairs. 112 Although in these applications I am not required to make a formal finding on the nature and extent of the plaintiff's psychiatric condition, it seems from the expert opinions I have reviewed including the most recent opinion of Dr Pete Vaux ["Dr E"] which followed his re-examination of the plaintiff on 29 March 2011, and which is not materially different to that which was before the Guardianship Tribunal on 8 May 2002, that there is ample expert evidence to justify a conclusion that the plaintiff is a person whose circumstances are affected by legal incapacity. Having regard to the medical opinions of Dr Phillips and the more recent report of Dr Vaux, for the purpose of deciding these applications, I consider this to be plainly apparent. 113 That view also appears to have been taken by the court on the previous occasions upon which case management orders were made on multiple listing occasions of the proceedings to date. It is also apparent from the terms of the orders for a stay, and it is also evidenced by the recent appointment of a tutor, through whom the plaintiff presently proceeds. 114 In these circumstances, I consider it is appropriate to have regard to the issues raised by these motions against the background that the plaintiff is someone who has been, and continues to be, incapable of managing his own affairs. That view was not contested by counsel during argument. 115 Accordingly, the plaintiff's presumed legal incapacity must be seen to be a relevant matter to be taken into account when considering the appropriateness or otherwise of the orders sought in the motions. The legal aid issue 116 One of the issues ventilated during submissions was whether or not it was likely that the plaintiff's most recent application for a review of the question of a grant of legal aid would be successful. I consider that issue to be of little if any relevance to these applications. It is not for the court to enquire into the arrangements for the funding of personal injury litigation absent an application for security for costs. 117 Assuming for the sake of analysing the argument, that legal aid was declined, it is well known and common knowledge for which evidence is not required, common law actions of the kind under consideration here are, as a matter of practise, very frequently taken on by members of the legal profession in the creditable and time-honoured fashion, in circumstances where payment for legal services is not expected to occur in advance of the outcome of the proceedings, especially where the client lacks the means to pay for such services in advance. There is also formal recognition of the availability of pro bono legal services: UCPR, Pt 7, Div 9, r 7.33. I do not need to make a judgment or to speculate upon whether or not any of these pathways for proceeding with these cases will be available to the plaintiff in this litigation, especially in the absence of an application for security for costs, which would in itself be an unlikely circumstance in these types of cases. 118 I therefore consider that the absence of evidence on the outcome of the plaintiff's application for a review of the decision declining him legal aid is irrelevant to the consideration required in these applications. Analysis of the medical and allied evidence 119 Before considering the question of the ultimate issue of the consequences of the delay incurred in the proceedings, and whether this amounts to a want of due despatch, it is important that I review the medical and allied evidence that has been served and which is available for analysis. This is because the defendant has argued that in the alternative, a permanent stay is justified because of the inherent difficulty in dealing with the medical and causation issues that will arise for decision in this case. 120 The medical and allied evidence that requires analysis for the purpose of the present applications falls into two distinct categories. In the first category, are the opinions of Dr Phillips and Dr Vaux, as well as the disclosed historical and assessment reports from other named practitioners whose opinions are in either report or letter form, and which are available and amenable to analysis, and in respect of whom there was no application for a non-publication order concerning their identification. 121 The second category of medical and allied opinion consists of selected portions of hearsay statements prepared by the solicitor for the defendant and, which are variously attributed to "Dr A", "Dr B", "Dr C" and "Dr D" on the basis of information and belief, in conformity with the practice on interlocutory applications. Those practitioners have sworn affidavits in 2004 confirming those extracts. Those attributed hearsay statements are variously extracted, summarised or referred to for context. Necessarily, they remain untested as the primary sources are unavailable for a full analysis. These circumstances must inevitably give rise to considerations of diminished weight to be attached to those selected extracted portions and summaries. Medical and allied reports that are amenable to analysis 122 The evidence discloses that a number of medical and allied experts have recorded relevant matters of history, treatment and diagnosis following their examination of the plaintiff. I have set out a summary of those reports in a roughly chronological order in the paragraphs that follow in order to identify the conclusions that are available to be drawn from those opinions. Those conclusions appear at paragraphs [156] to [171] of these reasons. 123 On 9 January 1993, the plaintiff attended at the Canterbury Hospital accident and emergency department. A history was recorded that the plaintiff " was sexually assaulted out at Glenfield Park boarding school for mentally retarded children approx 3 years ago only recently has commenced police involvement and court involvement ". There was mention of concerns by the plaintiff over STD testing. It was determined that the plaintiff was in need of counselling. A subsequent attendance at the same hospital also recorded a history that he had been sexually assaulted 2 years previously, and that he was frustrated because apparently nothing had been done about this. The handwritten hospital notes, whilst difficult to read in parts, nevertheless made periodic, clear and consistent references or complaints of past episodes of sexual assaults whilst at school. 124 On 15 January 1993, the plaintiff was referred to the Child Protection Unit of the Children's Hospital with a background history of sexual assaults occurring between 1989 and 1991. It is possible that referral was from Canterbury Hospital. The assessment which followed that referral was dated 25 February 1993, and consisted of a jointly prepared report by Dr Christine Norrie, a paediatrician with the Child Protection Unit, and Mr Glenn Mitchell, a social worker. In that report a background history was noted that over the period 1989 to 1991, the plaintiff had been sexually abused over a period of 3 years by a number of students at Glenfield Park School approximately 2 times per week on a regular basis. It was noted that the plaintiff was stating that he felt people did not believe him and that he was becoming increasingly paranoid. 125 Dr Norrie and Mr Mitchell stated that they found the plaintiff's account of the events very convincing and they found no reasons for disbelieving the plaintiff. These assessors concluded from the plaintiff's account that it was quite possible he had been sexually assaulted as he claimed. It was also noted that the issue was confused by his intellectual delay, possible organic brain symptomatology and emerging psychiatric problems. It was noted that these " disturbances need to be addressed before the issue of sexual assault and its impact can be taken further ." 126 It is not clear as to the nature or extent of any treatment the plaintiff received following that recommendation by Dr Norrie and Mr Mitchell. 127 In about 1995, on dates which are not clear on the evidence, Mr Terry Kesby-Smith, a consultant clinical psychologist examined the plaintiff on several occasions. The dates of those examinations were not specified in his report, which was dated 17 May 1995 and which was addressed to the plaintiff's former solicitors. Mr Kesby-Smith had at his disposal some 1993 statements by the plaintiff, as well as statements from Mr Mark Clayton and Ms Sharon Harding, who were both employees of the Glenfield Park School at the time of the alleged assaults. Those latter statements were dated 29 April 1993. Mr Kesby-Smith noted a psychological testing result from 1990 concerning the plaintiff, which indicated that the plaintiff had a full scale IQ of 74, which was regarded as being borderline normal. 128 Mr Kesby-Smith obviously recognised the difficulties in forming opinions on the origins of the plaintiff's problems and set out his opinions and conclusions on the basis of probability. Significantly, in 1995, Mr Kesby-Smith stated that the plaintiff " maintains a consistent account of the assaults [at Glenfield] over four years." Mr Kesby-Smith considered that after the assaults at school in 1991, the plaintiff suffered from an adjustment disorder with an anxious mood, which rapidly declined in 1992, with varying levels of anxiety and depression. 129 Mr Kesby-Smith described the psychological mechanism in the plaintiff whereby the plaintiff's paranoid ideation, psychotic symptoms and the effects of the assaults would have become intertwined in their effects on the plaintiff's functioning. He also offered the opinion that the school assaults in question would have increased the plaintiff's sense of paranoia. Mr Kesby-Smith stated that it would be extremely complicated and difficult to tease apart the relative influences on the plaintiff of his underlying personality predisposition and the effects of the sexual assaults upon him. Significantly, in the context of these applications, Mr Kesby-Smith did not say it would be impossible to tease out the relative influences of those factors on the balance of probabilities. It should be noted that this was Mr Kesby-Smith's opinion as a psychologist, and as such, it was not a medical opinion. 130 Dr Osman Ali prepared a report dated 10 June 1999 at the request of the former solicitor for the plaintiff. At that time, Dr Ali was a practising psychiatrist. It seems from his report that Dr Ali had the advantage of having had a prior acquaintance with the plaintiff and his family in 1988. That was in the context of him undertaking an assessment of the psychological conditions affecting the plaintiff's parents. It appears that Dr Ali had presciently identified the view that the psychoses that had been affecting the plaintiff's parents was impacting on the children, including the plaintiff, and rendering the plaintiff vulnerable to developing a hereditary psychotic disorder and personality difficulties. 131 Of significance, Dr Ali indicated that the plaintiff's " background history was retaken and remained constant ". He formed the view the plaintiff's history was suggestive of the presence of a psychotic phenomenon. 132 Also of significance within Dr Ali's report dated 10 June 1999, are his summaries of other psychiatric reports and materials that were available to him at the time he prepared his report. The plaintiff argued these matters were, in a relative sense, corroborative of his account of events over time. 133 Dr Ali's report makes reference to a 13 February 1993 psychiatric Registrar's assessment made under s 29 of the former and now repealed Mental Health Act 1990, indicating that the plaintiff should be involuntarily detained in a mental health facility at that time. Dr Ali's report also referred to a 20 April 1994 psychiatric diagnosis by a Dr I Richards, in which most pronounced paranoid traits were identified in the plaintiff, with the potential for the plaintiff to become psychotic. 134 Dr Ali's report also referred to an 8 January 1996 psychiatric opinion from Dr Jonathan Carne, who considered that the plaintiff had an underlying intellectual disability and a significant personality disorder. Dr Ali's report also referred to a 21 February 1996 report from Dr WJ Taylor, a clinical psychologist, who apparently assessed the plaintiff as having a level of intellectual handicap in the borderline area of mental handicap, " consistent with previous assessments conducted with him as well as the fact that he attended the Glenfield Park Special School for intellectually handicapped children." 135 Dr Ali's report also referred to a 6 April 1998 report from Dr John Roberts, a consultant psychiatrist, who expressed the view that the plaintiff's dysfunction at that time was primarily as a result of psychosis and a paranoid schizophrenic illness. Dr Ali's report also referred to a 28 July 1998 opinion of a Dr Rosalie, a general and forensic psychiatrist, who said of the plaintiff that he " claims to have no recollection of the alleged offence". The significance and context of that remark was unclear as it was not apparent from the comment as to what " offence " was under consideration in connection with that comment. 136 The tendered materials also provided relevant reports concerning the alleged sexual assault on the plaintiff whilst he was in gaol on 21 March 1999, in respect of the DCS claim. 137 At about 1900 hours on 21 March 1999, a Corrections Health Services Incident Report form was completed in respect of the plaintiff, in which it was recorded that the plaintiff made an allegation that earlier that day, he had been anally penetrated by another male inmate in his cell. An examination of the plaintiff undertaken at the gaol provided some corroboration of an injury and the plaintiff was sent for examination and treatment to the sexual assault unit at the Royal Prince Alfred Hospital. 138 The Royal Prince Alfred Hospital records show that on examination of the plaintiff carried out by Dr Jones on 21 March 1999 revealed that the plaintiff had signs of small petechiae over the mucous membranes of his mouth over the left second incisor canine and incisor teeth. Dr Jones also noted that the plaintiff had a 1cm linear abrasion to his anus and generalised redness of the perianal skin: pp 29-30 of Annexure "B" to the affidavit of "S 1". 139 On 2 June 2001, the plaintiff was assessed by Dr George Lianos, a consultant psychiatrist. The consultation concerned the alleged sexual assault on the plaintiff in gaol on 21 March 1999. The report of that consultation was dated 24 July 2001. In that report, Dr Lianos noted that the plaintiff's reaction to the assault was rather catastrophic, and that he was overwhelmed with the experience, and was unable to deal with it. Dr Lianos noted that the plaintiff had a tendency to decompensate into a paranoid and psychotic state, and he was in no doubt that the plaintiff's sense of overwhelming distress was a result of the circumstances of the assault. 140 A diagnosis of post-traumatic stress disorder was formulated by Dr Lianos, who also noted that the plaintiff's background made it difficult to assess his current symptoms, which was likely to lead people to underestimating the impact of the most recent traumatic episode upon him. It is significant to note that the comment made by Dr Lianos as to difficulty with assessment of the plaintiff did not equate with an asserted impossibility for making a relevant assessment. 141 Dr Phillips, a consultant psychiatrist, provided a report dated 14 August 2001. His report was addressed to the plaintiff's former solicitor. In essence, Dr Phillips was of the opinion that the plaintiff was pre-disposed to personality dysfunction even before he attended the Glenfield School from where the Education claim originated. Dr Phillips considered the psychological trauma from sexual abuse at that school added to the plaintiff's overall psychological burden and has led to the development of paranoid features within the plaintiff's personality structure and has also propelled him to an additional psychotic illness. Dr Phillips was of the view that the plaintiff had " reached a point of no return " with a prognosis for a marginal existence. He thought the plaintiff was without insight into his psychopathology. 142 Dr Phillips addressed a number of specific questions that were asked of him by the solicitor for the plaintiff. The actual questions were not identified but the gist of them may be gleaned from the following responses: "1. Mr "A's" history has been given above. As mentioned it was impossible to establish working rapport with him and he proved to be a less than articulate historian. 2. My mental state examination is consistent with the history given by Mr "A". 3. Mr "A" almost certainly has a paranoid personality disorder. He may have an underlying illness within the schizophrenia spectrum but I cannot verify this on the basis of my single examination. It is more likely than not that Mr "A 's" adverse earlier experiences, among them sexual abuse at the Glenfield School, have added to his burden of personality disturbance, particularly his isolated lifestyle punctuated by paranoid symptoms and high level irritability. 4. Irrespective of whether Mr "A 's" final diagnosis will be a paranoid personality disorder or an illness within the schizophrenia spectrum, he has a poor clinical prognosis. 5. It would be incorrect to state that Mr "A 's" ongoing psychiatric problems were caused' solely by sexual abuse perpetrated by fellow students at the Glenfield School. Psychiatric disturbance will nearly always have complex aetiology. In Mr "A 's" case the causal pathway leading to his ongoing problems will include a genetic contribution, adverse early experiences whilst he lived in a dysfunctional family, removal from his family and enrolment at the Glenfield School and sexual abuse by fellow pupils at the school. However Mr "A " was particularly ill equipped to cope with sexual abuse by fellow students at the Glenfield School and this matter should be given proper weight. In the absence of sexual abuse, Mr "A " would probably experience a lower level of ongoing psychopathology. You will appreciate that it is not possible to determine percentage contribution of any particular psychological event/events when considering the casual ( sic for causal) chain leading to psychiatric disturbance. It could reasonably be said, however, that in Mr "A 's" case, sexual abuse by fellow students at the Glenfield School made a substantive contribution to his ongoing psychopathology. 7. I do not believe Mr "A " is able currently to manage and conduct his legal and financial concerns, given his lack of experience in either domain and his degree of psychiatric disturbance. Each matter on its own may not preclude him taking responsibility but the three matters taken together lead me to express substantial concern. The Protective Commissioner would be an appropriate person to take responsibilities in the financial domain and will provide Mr "A " with appropriate protection. Finally, you have not asked me to comment on Mr "A 's" suitability for psychiatric treatment. In essence, he has a disturbance likely to prove refractory to conventional treatment." 143 Dr Vaux, who is also a consultant psychiatrist, examined the plaintiff at the request of his solicitor on 29 March 2011 whilst the plaintiff was in prison on remand without bail. Dr Vaux noted that at the time of his examination the plaintiff was taking anti-psychotic and other medications. He noted the plaintiff's reduced cognitive capacity and his need for active case management as well as ongoing treatment in the form of medication with psychological and social support. He stated that these matters were in part dependent upon whether the plaintiff remained in gaol. Dr Vaux's report indicated that he had seen the plaintiff on 5 previous occasions in 2008 and 2009 in a clinical setting for treatment purposes. Dr Vaux's undated 10 page report of that consultation was Annexure "C" to the affidavit of the plaintiff's present solicitor. In his analysis, Dr Vaux made reference to reports that were not in evidence in these applications. Dr Vaux concluded his rather complex report with the following statement: "... Certainly Mr "A 's" prior (that is prior to the assaults) condition of cognitive impairment due to developmental delay, that contributed to his attending Glenfield School, was not caused or contributed to by the events of 1989-1991 nor the event of 199 9. However this condition (his impaired cognitive state) would have made the psychological processing of these events more difficult for him. As regards Mr "A 's" personality and his psychosis diagnosed as schizo-affective disorder is concerned there is a plethora of psychiatric literature to demonstrate that traumatic events can contribute and provoke psychosis and personality change leading to paranoid concerns both of a psychotic and a non-psychotic nature. Therefore I can say that the events that are alleged to have happened would have contributed to his illness and personality disorder. The recurrent nature of the assaults at the school and the sheer number that Mr "A " says happened would mean that these should have had more impact on his condition. The threat of violence associated with the attack in prison makes this a very significant event and compounds the effect of the prior events. A true assessment of the individual impact of both similar events is difficult to unravel accurately now as their history is polluted by their retelling on many occasions and the only way to make a clearer judgement would be to assess the acute psychiatric records over the time between the events. However even this in my opinion would probably only lead to further guessing regarding this question rather than a true clear decision ." [Emphasis added] 144 In argument, the defendant seized upon the concluding remarks of Dr Vaux that I have emphasised to support the argument that a fair trial could not be had in the circumstances because the history was " polluted ", because the plaintiff's history would be " difficult to unravel accurately " and an assessment should not be made by " guessing ". I will return to analyse that argument shortly in the context of the claim by the defendant that there is material prejudice in identifying an accurate basis for the foundation of expert opinions. Medical and allied reports that are not amenable to analysis 145 The opinions of "Dr A", "Dr B", "Dr C" and "Dr D" remain unavailable for analysis. This is because the defendant has determined that it does not propose to rely upon those reports because the authors have not consented to the use of their reports in the litigation. The apparent reason for that position is that the authors have expressed their unwillingness to continue their participation in the medico-legal process in this case. The unchallenged reason given for that stance is, in each instance, an apprehension on the part of the experts concerning their personal safety arising out of threats said to have been made to them by the plaintiff. 146 The full opinions of the expert psychiatrists engaged by the defendant are not available for analysis. This is explained by affidavit evidence from "CSO 3", who has stated that those experts feel threatened and they no longer consent to the use of their reports in the proceedings. Accordingly, it is only possible to set out brief selected hearsay accounts of what they had to say. That selection was carried out by "CSO 3". 147 There is affidavit evidence from "Dr A", "Dr B", "Dr C" and "Dr D" which confirms the hearsay accounts of their views. The hearsay summaries identify a range of the views of those experts for the contextual purpose of analysing the significance and consequence of the tactical forensic decision made by the defendant to refrain from seeking to qualify any other expert psychiatrists to examine the plaintiff for the purpose of providing expert evidence for use in a final hearing of the proceedings. 148 In the paragraphs that follow, I set out the salient features of the summarised views attributed to "Dr A", "Dr B", "Dr C" and "Dr D". Those summaries also have relevance to whether the plaintiff's conduct, as reported, justifies the relief sought. I shall outline the evidence on that topic after summarising the medical evidence. 149 "Dr A" examined the plaintiff on the defendant's behalf in 2001. The report he prepared following that examination is unavailable for analysis. The affidavit of "CSO 3" sworn on 1 March 2004 provides some selective quotations from the report of "Dr A". It is appropriate that I set out that selective summary in its entirety as follows; "28. The following sub-paragraphs summarise Dr A's report to my office as to what occurred at his interview of the plaintiff: (a) During the taking of the history, the plaintiff said to Dr A: " Each person has to bear a price for these things.. I'll get my turn when I go to court better have a spare funeral...these people can't get away with what they've done to me...unfortunately they will be stuck in that little room in the judicial system...it's my turn to deliver sentence. " (b) Dr A enquired as to what the plaintiff was implying and the plaintiff replied: " They might be shot...all of them...it could be quite fatal... even the solicitors and barristers...they hurt me so it's my turn...and the victims have been chosen. " (c) The plaintiff then said to Dr A: " Even Crown Solicitors should watch their backs...it only costs $500 to do their dirty work...sending people to North Gosford and posing as law clerks and wanting to know my whereabouts...so everyone whose harmed me will pay their price at the Court House...so we have the names of all the victims who will be executed...I don't want their compensation... they have ruined my career. " (d) The plaintiff then " spoke bitterly about expert witnesses and accused me of being in the process of writing a fabricated report . " (e) The plaintiff then said: "Perhaps I should return to this office with an object... I have your particulars... a date to be fixed for judgment". (f) The plaintiff also told Dr A that he had seen many psychiatrists over the years and then said: " All floating in the air...how about I pull a gun out of the bag? (He had brought a duffle bag into the interview room)... how would you like that? " (g) The plaintiff also said to Dr A: "... the Crown Solicitors, Education Department, the Police and the Court aren't going to get away with it...because nobody gets away with what they did to me. " (h) Dr A enquired about where the plaintiff grew up and the plaintiff replied: " My future depends on suicide or executing people...but I prefer as a matter of preference to execute people...with assistance...then execute myself...the people...then kill myself...better lock your office to protect your secretary...it is advisable to keep your doors locked . " (i) Dr A asked the plaintiff why he should lock his doors and the plaintiff replied: "Because every person I see becomes a victim.'" (j) The plaintiff told Dr A that AVO's "have no effect" and made reference to the Strathfield massacre and again mentioned shooting himself. (k) The plaintiff was casually dressed and neatly groomed and carried a duffle bag into the interview room and for most of the assessment wore dark glasses. The plaintiff's manner was hostile and threatening and his voice at times was menacing and he expressed persecutory ideas and homicidal fantasies. When the plaintiff left Dr A's office, he pointed out how flimsy the lock on the front door was. (l) Dr A expressed the following opinions: "[The plaintiff's] presentation at interview and the information that he presented would not allow me to reach any meaningful conclusions as to whether the alleged assaults occurred during his time at [the School] and, if they did, whether they have had any effect on his long term emotional disorder and behavioural problems. I note that Dr Ali, who previously practised as a psychiatrist, examined (the plaintiff) and his family in 1988. He considered both parents to be paranoid and suffering from 'mainly depressive or manic depressive disorder complicated by psychotic symptoms rather than a straight out schizophrenic symptoms'. Furthermore, he reports 'the children were assessed by a Child & Family Psychiatrist who expressed the view that their development is being impacted upon by their parents 'psychosis and some of them will be prone to develop: (a) Psychotic Disorders by virtue of hereditary (sic); (b) all of them are likely to develop personality difficulties or disorders due to their abnormal developments and under the environment prevailing at home.' If this is correct, it would appear that a Child & Family Psychiatrist predicted in 1988 that Mr "A " was likely to develop personality difficulties and a psychotic disorder, all of which came to pass. The question that I cannot answer is whether any alleged sexual assaults would have hastened this process or made it more likely than not to occur. ...I consider he is genuinely dangerous and while he might not be able to render judgment and punishment on all of those who form part of his fantasies, I believe he is capable of causing some harm to make his point. I am concerned that he might make some token gesture before the court case to validate his dangerousness and thereby encourage those involved in evaluation ( sic ) his case to settle out of court for a large sum thereby avoiding any dangerous consequences. " ' 150 "Dr A" prepared a further report dated 20 October 2003 for the solicitor for the defendant. The effect of that report was to recount a confrontation that occurred between the plaintiff and "Dr A's" secretary on 17 August 2001, as well as some subsequent events as set out in paragraph 33 of the affidavit of "CSO 3" which led "Dr A" to indicate to the defendant that he was no longer willing to re-examine the plaintiff under any circumstances, or to do anything that might remind the plaintiff that "Dr A" existed. 151 "Dr B" interviewed the plaintiff on behalf of the defendant in 1999, and he has supplied the solicitor for the defendant with two reports. Paragraph 36 of the affidavit of "CSO 3" is in the following terms: "36. Dr B has prepared two medico legal reports in respect of the plaintiff, and objects to the service of either report upon the plaintiffs representatives. Dr B has expressed concern about having to attend court to give evidence. Dr B concluded a report dated 20 October 2003 by saying the following: "I have been in clinical practice for over 30 years and am not someone who is easily frightened and am used to handling difficult situations and people, in jail and out. In all that time, I have had very few really frightening experiences. Mr "A" is one of the most dangerous people I have had to see and I remain frightened of him and concerned for others." " 152 "Dr C" also interviewed the plaintiff on behalf of the defendant in 1999, and he has also supplied the solicitor for the defendant with two reports. Paragraph 38 of the affidavit of "CSO 3" refers to "Dr C's" first report in the following terms: "38. In his first report, Dr C said that given the plaintiff's personality disorder and unreliability as an historian he, Dr C, would not accept any aspect of the plaintiffs account unless verified independently. He considered that the plaintiff's personality disorder was not attributable to anything that occurred at the School but was rather attributable to the plaintiff's constitutional and/or early developmental problems." 153 The second report of "Dr C" is summarised in paragraph 39 of the affidavit of "CSO 3". That summary recounts the reasons why "Dr C" is not prepared to interview the plaintiff again, or to even recommend any other psychiatrist to be involved in the case. 154 "Dr D" examined the plaintiff on behalf of the defendant in 2000. He subsequently prepared a report following that examination. Paragraph 41 of the affidavit of "CSO 3" summarises that report in the following terms: "41. The following sub-paragraphs are summaries of passages from Dr D's report: (a) The plaintiff told Dr D that he had "nominated the Judge for his upcoming case, all of the solicitors and barristers and all of the witnesses as targets of his resentment". The plaintiff drew up lists of names on a sheet of paper and told Dr D of his intention to kill them all, once they were assembled in court. (b) The plaintiff was an extremely difficult person to interview and that his conduct suggested that he did not take the interviews seriously. Dr D thought that the plaintiff had established a pattern of lying, manipulation, deception and false allegations which have confounded the usual ways of evaluation (sic) mental state. (c) Dr D could not satisfactorily deal with the particulars of ongoing disabilities enumerated in the plaintiff's statement of particulars because he was not provide (sic) with the relevant history by the plaintiff, despite sustained effort on his (Dr D's) part. (d) Dr D considered that if the assaults had not happened, the plaintiff would have developed a personality disorder of a less severe type." 155 On 23 January 2003 "Dr D" telephoned the solicitor for the defendant to recount a telephone conversation he had with a caller to his office earlier that day. Although "Dr D's" caller has not been directly identified as being the plaintiff, at paragraph 42 of his affidavit, "CSO 3" set out a summary of his conversation with "Dr D" on that day as representing the reasoning behind "Dr D's" unwillingness to have any further medico-legal involvement in the plaintiff's proceedings. Conclusions available from review of medical and allied evidence 156 The material shows that the plaintiff made a delayed complaint about the alleged sexual assaults in respect of the Education claim. He was 15 years and 8 months of age at the time he first raised his complaint. The resultant delay was some 2 years after the alleged assaults had ceased. In my view, a delay of that character is unremarkable in the case of alleged sexual assaults occurring to a young adolescent in care. 157 After the complaint came to light, the plaintiff has given a mainly consistent history of the alleged sexual assaults, and in that context he has encountered institutional denial and disbelief. This has also been in the context of him developing an increasing paranoia. Notwithstanding those circumstances, at the time, the plaintiff convinced the initial investigators, these being an experienced paediatrician and a social worker, and the investigating police officer. The evidence of those investigations is in the form of contemporaneous reports and statements, as well as reports dealing with treatment. 158 To the extent that there are inconsistencies in the recorded history, an analysis of any such inconsistencies must proceed with caution given the nature of the reports, being principally summaries rather than verbatim accounts of history, and the absence of exploratory detail of the manner in which those accounts were recorded: Mason v Demasi [2009] NSWCA 227 per Basten JA at [2]. 159 Dr Ali, the psychiatrist who provided the plaintiff with initial treatment, had the advantage of contact with the plaintiff and his family before the occurrence of the events giving rise to the Education claim. Dr Ali has given an inherently credible explanation to the effect that before the events in question, the plaintiff was vulnerable to developing an hereditary psychotic disorder and personality difficulties. 160 That piece of evidence represents an important objective foundation for subsequent opinion evidence, and it sits well with the subsequent opinion of Dr Phillips, who identified such a pre-existing disposition in the plaintiff as well as identifying a mechanism whereby the alleged sexual assaults at the Glenfield Park School added to the plaintiff's psychological burden which has led to the development of paranoid features in his personality structure, as well as setting the scene for an additional psychotic illness, whereby the plaintiff has been taken to " the point of no return ", meaning that the prognosis of the plaintiff's paranoid personality disorder is that his condition is not really amenable to curative treatment. 161 Whilst Dr Phillips stated that the plaintiff's ultimate condition was not " caused " by the sexual abuse, that causation comment has to be viewed in the context of the applicable legal test of causation, including the potential for a material contribution of the events complained of being relevantly linked to the ultimate damage suffered. In that regard, Dr Phillips has effectively provided an opinion fulfilling that requirement by identifying the contribution of the events complained of as being " substantive ", which on a reasoned legal analysis, would ordinarily be read as meaning a material contribution. 162 The relevant causative background was described by Dr Phillips as a vulnerability of the plaintiff, or the plaintiff being " ill-equipped to cope with sexual abuse by fellow students ". In the context of a causation analysis, Dr Phillips considered that factor should be given proper weight. 163 That analysis put forward by Dr Phillips seems entirely unremarkable, and is capable of acceptance on its face, if the underlying factual assumptions are established. In this context, based on a review of the materials tendered in these applications, it appears those underlying facts are readily capable of being established by the plaintiff. 164 The analysis undertaken by Dr Vaux was not remarkably different to that undertaken by Dr Phillips in terms of material contribution of the alleged sexual assaults at school to the plaintiff's psychotic and personality disorders. Significantly, Dr Vaux noted, as did Dr Phillips, that the facts alleged in the DCS claim operated with a significant compounding effect on the plaintiff's psychological problems that were associated with the previous sexual assaults that were alleged to have been perpetrated upon him whilst he was at the Glenfield Park School. The opinion of Dr Lianos in which he identified post-traumatic stress disorder in the plaintiff is not remarkably different. 165 In undertaking this evaluation of the medical and allied evidence, I consider it would be inappropriate, unjust and unfair to the plaintiff, if material reliance was placed on the extracts and summaries of the opinions of "Dr A", "Dr B", "Dr C" and "Dr D" in any relevant causation sense. This is because those practitioners have withdrawn their consent for the use of their opinions in this litigation, and as such, necessarily, those opinions are not, and will not be, fully or relevantly available for review at a hearing, and therefore they cannot be tested. 166 If I am wrong in taking that view, it is nevertheless significant to note that "Dr A" has stated that he found himself unable to contribute to the debate on whether the alleged sexual assaults would have contributed to the process of development of the plaintiff's psychotic disorder. "Dr B" and "Dr C" were unable to relevantly contribute to the analysis, according to the material tendered. In significant contrast however, "Dr D" considered that if the alleged sexual assaults had not occurred, the plaintiff would have developed a personality disorder of a less severe type. 167 The first conclusion to be noted from the opinions of Dr Phillips, Dr Vaux and "Dr D" is that the plaintiff's claims for damages are required to be assessed in accordance with the fundamental principal of damages that even in the presence of a demonstrated underlying vulnerability in the plaintiff to suffer harm of the kind identified, he must nevertheless be taken by the defendants as he was found at the time, namely before the harm complained of: Mt Isa Mines v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer at [18]. 168 The second conclusion to be noted from those opinions is that, assuming breach of duty of care can be established, the circumstances complained of by the plaintiff are permissive of an argument in favour of his case succeeding on the causation issue. This is because all the plaintiff needs to establish on that issue is a material contribution to the damage he has suffered, that is, absent the alleged sexual assaults at school, and absent the compounding effects of the alleged sexual assault that was occasioned to the plaintiff whilst he was in gaol, he would have suffered a lesser degree of psychological harm. In my view the medical and allied evidence I have reviewed, is amply capable of satisfying these two threshold considerations on the issue of causation of damage. 169 It follows from this analysis that I do not accept the submission of the applicant / defendant that the evidence does not permit a reasoned diagnosis of the plaintiff's condition. 170 The defendant's argument drew heavily upon a previously cited passage from the 2011 report of Dr Vaux, which for convenient reference, I replicate below: "A true assessment of the individual impact of both similar events is difficult to unravel accurately now as their history is polluted by their retelling on many occasions and the only way to make a clearer judgement would be to assess the acute psychiatric records over the time between the events. However even this in my opinion would probably only lead to further guessing regarding this question rather than a true clear decision." 171 I do not accept that this passage represents a relevant prejudice to the defendant in circumstances where the defendant has succeeded in having the plaintiff's case stayed for 6 years, which has contributed to the plaintiff's need to re-tell his history. The challenge faced by counsel to seek to unravel facts accurately is ever-present in litigation. It is part of the advocate's art, and whilst this case certainly represents challenges for the advocates retained by the defence, in my view such challenges do not involve irremediable or significant prejudice. Claimed prejudice in establishing foundation facts for expert evidence 172 The defendant argued that because of the effluxion of time, it will not be possible for the court hearing the plaintiff's cases to be provided with an accurate factual account of the critical facts that are required in order to determine the proceedings. In this regard, it was argued that there are many factual discrepancies and inconsistencies in the factual accounts given by, and attributed to, the plaintiff, thus rendering problematic the accuracy, viability and probity of the expert evidence assembled in the proceedings. 173 For the reasons that follow, I consider the potential problems identified by the defendant as outlined above to be unpersuasive with regard to a claim of significant prejudice. 174 In litigation, the identification of the absolute truth or accuracy of the asserted facts, whilst an ideal goal, is seldom achievable. Instead, the process involves the identification of facts which are, on the balance of probabilities, more likely than not, considered to be correct or to be preferred. 175 Whilst it is desirable that the best and most accurate evidence be adduced, the judicial method of assessing evidence makes due allowance for testimony that is submitted to be inaccurate, improbable or incredible, and the converse is also true. Problems of the kind complained of by the defendant comprise commonly occurring challenges that courts regularly have to face and deal with when assessing the credibility of testimony. This does not as a matter of necessity, amount to significant prejudice. It is a given that courts deal with such challenges on their merits by reasoned analysis when determining whether a party has discharged the burden of proof on a particular issue or matter of fact, or whether the testimony of a witness is to be believed on a particular aspect of evidence or at all. 176 It was argued that inconsistencies and variations in the factual accounts given by the plaintiff will afflict both the formation and the reliability of expert psychiatric opinion evidence concerning the plaintiff's diagnosis and prognosis. 177 I do not accept that submission because, as has recently been restated by the Court of Appeal, when an assessment of expert evidence is required, a comparison between the primary facts adduced and relied upon in the proceedings with the facts assumed by experts, need only be " sufficiently like " and not necessarily precisely the same as the facts established at a trial as long as the facts assumed are " substantially reflected " in the evidence: Nominal Defendant v Saleh [2011] NSWCA 16, per McColl JA at [263]-[264], following Dixon v Whisprun Pty Ltd [2001] NSWCA 344; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844; HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, at [39] per Gleeson CJ. 178 The defendant pointed to what it has characterised as inconsistencies or contradictory statements by, or attributed to, the plaintiff, which, it was argued, do not bode well for the plaintiff accurately recounting critical events in his evidence. 179 In my view, that is not a fair criticism of the evidence adduced at an interlocutory stage of proceedings where the facts asserted by the plaintiff must be taken on their face and at their highest for the purpose of determining whether the plaintiff has an arguable or triable case on the facts relied upon: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 . 180 Further, the methodology invoked by the defendant to criticise the factual variations in the versions of events given by the plaintiff to various medical examiners, characterised in argument as being inconsistencies, is itself open to criticism as representing an unfair analysis in the absence of other evidence that justifies the criticism: Mason v Demasi [2009] NSWCA 227 per Basten JA at [2]; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 per Basten JA at [8]. 181 In my view the applicant / defendant's argument raising and relying upon argued inconsistencies in the recording of the plaintiff's history are not appropriate considerations in an application for dismissal because the evidence discloses that each of the cases brought by the plaintiff raise triable issues: General Steel . 182 Furthermore, in the course of determining whether adverse judgments should be made against the credit of the plaintiff, there are substantial analytical obstacles to adopting an analysis of histories set out as summaries in medical reports in order to assert there are material inconsistencies giving rise to unreliability of the testimony of the plaintiff: Mason v Demasi . In that case, at [2], Basten JA identified the need to proceed with caution in taking the approach submitted by the defendant in these motions in connection with the analysis of histories summarised in medical reports. The need for caution was expressed in the following terms: "2 First, the trial judge was invited to discount the appellant's oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others: (a) the health professional who took the history has not been cross-examined about: (i) the circumstances of the consultation; (ii) the manner in which the history was obtained; (iii) the period of time devoted to that exercise, and (iv) the accuracy of the recording; (b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings; (c) the record did not identify any questions which may have elucidated replies; (d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and (e) a range of factors, including fluency in English, the professional's knowledge of the background circumstances of the incident and the patient's understanding of the purpose of the questioning, which will each affect the content of the history." 183 In this case, the histories recorded in various medical reports demonstrate and confirm the need to proceed with the caution identified in Mason v Demasi at [2]. On the foregoing analysis I do not accept that the plaintiff's testimony raises material inconsistencies that cannot be properly tested in the course of a fair trial where the defendant will be represented by skilled counsel who will be able to decide which, if any, of the facts relied upon by the plaintiff require challenge, testing or traducing, whether by questions or by countervailing evidence. Claimed prejudice from non-application of the Civil Liability Act 2002 184 The defendant argued that it is prejudiced by the antiquity of the plaintiff's claims because, whereas in modern litigation assessment of causation takes place under the regime s 5D of the Civil Liability Act 2002, in contrast, the plaintiff's litigation involves a consideration of the principles discussed in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. 185 An argument was put to the effect that this point demonstrates that the defendant faces a more burdensome task in defending the causation issue in this instance because of the passing of time and a change in the law that might otherwise prevail. I do not accept the defendant's argument in this regard. The law of damages that is to be applied in these cases is determined by the timing of the filing of proceedings, not by the date of the assessment of the claims. The consideration of the types of issues that arose in Watts v Rake and Purkess v Crittenden is a commonplace circumstance in current litigation and I do not see how a relevant prejudice can reasonably arise as claimed. The causation issues that are required to be determined have already been identified as calling for a conventional common law analysis unaffected by the requirements of the Civil Liability Act 2002. Conduct of plaintiff and consequent forensic decisions by defendant 186 The evidence shows that in 2004 the defendant decided that it would adopt the position of not seeking any further medical or allied expert evidence because of the plaintiff's threatening behaviour in the context of these proceedings. The basis for that decision has been explained by "CSO 3" as summarised at paragraphs [191] to [196] of these reasons. 187 Over time, solicitors acting for the plaintiff have drawn to the attention of the solicitors acting for the defendant the names of several expert psychiatrists known to practise in the field of forensic psychiatry and who have indicated a preparedness to undertake an examination of the plaintiff for the purposes of preparing medico-legal reports concerning the medical issues that arise in this case, and within their expertise. It appears some of those psychiatrists may have reviewed their willingness to examine the plaintiff once matters of concern over security were drawn to their attention. 188 The current state of the evidence on the defendant's intentions to obtain medical evidence is unclear. On the one hand there is the 2004 decision to pursue further attempts at obtaining expert evidence, on the other there is order 5 in the short minutes of order filed on 1 February 2011, and which I have already cited at paragraph [76] of these reasons, which suggests the defendant may still be seeking medical examinations of the plaintiff. Whether or not the solicitor for the defendant has changed the earlier decision not to seek out such evidence is a forensic decision purely within the province of the defendant. It is not a legitimate consideration for denying the plaintiff the opportunity of having his case determined. 189 The defendant has an unfettered right to decide whether it will conduct a defence of the medical issues on the basis of putting the plaintiff to proof by testing the evidence the plaintiff calls, either with or without evidence of its own, and it may choose to call no evidence contradictory of the reports obtained or served on behalf of the plaintiff. 190 However, I consider that the 2004 decision of the defendant not to seek and obtain expert reports of its own, when viewed in 2011, is not a legitimate consideration for denying the plaintiff the opportunity of having his case determined, where it is found that he is otherwise entitled to do so. 191 The 2004 decision of the solicitor for the defendant not to pursue further attempts at seeking to have the plaintiff examined by expert witnesses for the purposes of the litigation was made as a result of the plaintiff's threatening and intimidatory behaviour. In this regard, the position of the defendant as to expert witnesses and expert evidence for use in its case in these proceedings is summarised between paragraphs 43-51 of the affidavit of "CSO 3" in the following terms: " Summary as to Expert Witness 43. I do not have the consent of any of the above doctors to serve and rely upon their medico-legal reports. 44. The first report of Dr A has been served, but Dr A is not prepared to give evidence. 45. In the circumstances which have arisen, I am not instructed to compel the doctors to attend court to give evidence pursuant to subpoenas. 46. The result is that, by virtue of the plaintiff's intimidation of the doctors, the defendant is left with no expert evidence with which to meet the plaintiff's claims of liability and damage. 47. In particular, the defendant is left with no expert evidence with which it can attempt to mount a case that the alleged sexual assaults, which are denied, did not cause or materially contribute to the plaintiff's overall psychiatric condition. In this regard, the evidence of at least two of the four doctors qualified by the defendant, Drs B and C, is that the assaults, assuming they occurred, would have played no material part in the plaintiff's ongoing psychiatric presentation. Dr A said that he was unable to answer the question. Dr D said that the plaintiff would have developed his personality disorder even if the assaults had not happened, albeit to a lesser degree. For the reason already stated, the defendant is unable to adduce any of this evidence. 48. Also, the inability to reply upon expert medical evidence means that the defendant is unable to cross-examine the plaintiff as to histories given to the doctors who have examined the plaintiff. This is grossly prejudicial to the defendant, particularly given that the liability issues are almost wholly dependent upon the plaintiff's credibility in the circumstances where there is no corroboration of the alleged assaults. 49. I respectfully submit that the defendant in both proceedings is grossly prejudiced in its ability to defend the plaintiff's claims both on the issues of liability and damages. 50. In particular, as to damages, in June 2003, I received a Memorandum of Advice from counsel then briefed for the defendant in the matter dated June 2003. In that Memorandum, counsel advised me that as there were no current medical/psychiatric opinions available as to the plaintiff's current psychological condition, it was impossible to render any advice as to damages, even on a preliminary basis. 51. I am instructed not to attempt to have the plaintiff medico-legally assessed by any other medical practitioner because of the likelihood that the plaintiff will repeat his intimidation of any new witness brought into the case as evidenced by his intimidation of the above doctors, and his long criminal record of offences of an intimidatory nature such as stalking, threatening phone calls and assault: see Criminal Record which is annexed and marked "E". I also refer to the following paragraphs in respect of other fruitless attempts which have been made to have the plaintiff examined, notwithstanding that in some instances orders had been made by the court." 192 The applicant / defendant also argued that the plaintiff's threatening behaviour generally, is likely to have a prejudicial and adverse impact upon the future conduct of the proceedings with regard to the defence of the proceedings. Attention was drawn to past intimidatory behaviour the plaintiff had directed towards a barrister and solicitor retained by the defendant, as well as towards a Judge of this court. For that argument reliance was placed upon paragraphs 64-65 of the affidavit of "CSO 3" which was in the following terms: " Barrister Incident 64. On 27 February 2003, Counsel then briefed for the defendant ("the barrister") appeared before his Honour Judge [name of Judge deleted for these purposes] at the Madison Tower District Court complex in Goulburn Street, Sydney when the proceedings were listed for directions. 65. The following sub-paragraphs are a summary of the contents of a statement subsequently given by the barrister to Detective Sergeant Lewis of the NSW Police in relation to events after that directions hearing: (a) At the conclusion of the directions hearing, at approximately 10 30, the plaintiff approached the barrister at the bar table in Court 15D and said to the barrister words to the effect of " / heard every word you said You 're a fucking liar I m going to get you the next time we are in Court You 're a fucking liar". (b) At this point, the plaintiff's counsel, Mr Asuzu, intervened and motioned the plaintiff to the entrance to court. (c) The barrister looked around and asked a person whom he understood to be the court officer to get security as he, the barrister, felt very threatened. (d) The plaintiff then came back towards the barrister Mr Asuzu or someone else again stepped in to intervene The barrister said " This is court You're not going to do this here I'm going to get security " The plaintiff then left the court and the court complex The barrister rang his secretary and his wife to alert them as to the plaintiff's actions." 193 I am cognisant of the hearsay nature of the material I have cited in the preceding two paragraphs, however, the material is unchallenged. 194 As a consequence of the incident described above, the barrister concerned in the incident was released from his retainer to act for the defendant. 195 Evidence has also been given that the plaintiff had made a threatening telephone call to the solicitor who had the conduct of the defence of the plaintiff's claims. As a consequence, that solicitor has obtained an Apprehended Violence Order against the plaintiff. 196 Evidence was also tendered identifying a threat made to a Judge of this court. That incident is summarised in the following unchallenged extract of the affidavit of "CSO 3", which was in the following terms: " Judge Incident 61. The following is the text of an article that appeared in the Daily Telegraph newspaper on Monday 9 February 2004 under the headline "Threatening Calls to Judge and Police": " A man bailed on Friday after threatening to kill a District Court Judge was yesterday back before the court after allegedly threatening to harm police. ["A"] 26, of Hurstville, told Parramatta Bail Court he suffered a severe psychiatric condition and wanted to get help or get medication. ["A"] was charged on Friday after allegedly making threats to kill [DCJ2] in a phone call to the Attorney-General's office. His bail condition was that he not contact any person associated with law enforcement to threaten or intimidate. Police allege ["A"] had contacted Ashfield Police on Saturday night threatening self-harm and to "kill anyone who tried to help" Registrar [ name deleted ] ordered him to go to Cumberland Hospital for psychiatric assessment " 197 Whilst the abovementioned events occurred some considerable time ago, there is evidence from Dr Vaux to the effect that the plaintiff has undergone psychiatric treatment since those events. Whilst that evidence does not suggest that the plaintiff has ameliorated his earlier expressed antagonisms including towards those whom he perceives have acted against his interests; neither does it suggest a recent reiteration of the earlier threats. 198 There is no room for doubt that the plaintiff has in the past engaged in conduct that has threatened medico-legal witnesses, together with threatening a solicitor and a barrister representing the defendant, as well as threatening a Judge of this court. 199 These factors have without doubt influenced the manner in which the defendant has approached its management of this litigation. That management has resulted in a decision not to seek further medico-legal opinions concerning the plaintiff's condition for the purposes of the litigation. That decision has operated from 2004 until 2011, when the short minutes of orders filed on 1 February 2011 suggest that the defendant may have revisited that decision in view of the appointment of a tutor to represent the plaintiff. 200 Whilst the past threatening behaviour of the plaintiff is of concern to the proper administration of justice, I have to also consider the fact that the behaviour in question concerned occurred some considerable time ago, and there is present evidence that the proceedings are at present being sought to be regularised by the appointment of a tutor. Also there is an expressed willingness on the part of the plaintiff to co-operate with the defendant's need for medico-legal examinations if such a course is required by the defendant. I also observe that the plaintiff is presently in a secure custodial environment and that fact should be a comfort to the defendant and to any proposed medico-legal examiners if there was a concern for their safety. The medico-legal examination of persons whilst in custody is not an unprecedented or a novel occurrence, and there is little doubt that the appropriate administrative arrangements exist and could be made available to achieve this. 201 In these circumstances I do not consider that the circumstances outlined in the evidence and which I have reviewed in these reasons are of themselves a sufficient indication of necessity to secure the proper administration of justice to justify the orders sought in these motions. 202 However, that is not to say that if it could be shown that the plaintiff continued to behave in the manner described, these questions would not be revisited. In that context, it must be recorded that such behaviour, if proven, would be very likely to be met with the appropriate sanctions provided by the criminal law, if not the other measures to which I have earlier referred. Prejudice - death of a key defence witness in the Education claim 203 The defendant argued that it is significantly prejudiced in its defence of the Education claim because on 1 July 1998, a key defence witness, Ms Louise Prytherch, an employee of the Glenfield Park School, had unfortunately passed away. In my view the defendant's argument in this regard must be rejected on several grounds. 204 First , the proceedings in respect of the Education claim were commenced within the prescribed limitation time. The witness in question passed away after the proceedings had commenced. Therefore, in my view, it cannot be reasonably said that a loss of a witness after the commencement of proceedings and at a time before the proceedings were likely to have been heard in the ordinary course, has occurred as a result of unreasonable delays on the part of the plaintiff when the plaintiff's proceedings were commenced within the requisite limitation period. In contrast, the loss of a key witness may have been a relevant consideration if this was an application by the plaintiff for an extension of time in which to commence proceedings, but that is not the case here: Brisbane South Regional Health Authority v Taylor , per McHugh J at p 555.2. 205 Prejudice arising due to the loss of a witness is a recognised complication in litigation, and of itself, it does not constitute a significant prejudice warranting a dismissal or a stay of proceedings in this case where the proceedings were commenced within the limitation period. Delay after the commencement of litigation is a separate issue and it has no bearing on the unavailability of Ms Prytherch, the deceased witness. 206 Secondly , on 16 May 1993, it is apparent from the evidence that the deceased witness had given a statement concerning the events of the Education claim. That statement was relatively contemporaneous with the events of that claim, given that it took 2 years for the plaintiff to ventilate that claim. In the ordinary course, that statement, which was tendered in the appeal in the Victims Compensation proceedings arising from the Education claim, ought to be within the reach of the parties for legitimate forensic use in this litigation, subject to the questions of weight that would inevitably arise as a result of the death of that witness. Even if at a trial of the issues that statement is excluded from evidence, that is an ordinary incident of litigation which cannot be seen as arising due to fault or dilatoriness on the part of the plaintiff. Claimed prejudice to faded recollections of witnesses 207 The defendant has submitted that a relevant prejudice arises because of the passing of a significant period of time since the occurrence of the critical events. It was argued that this is likely to have resulted in the fading of recollections of witnesses. 208 That submission may be an appropriate general observation to make, but no evidence has been presented that establishes such a fact on any critical issue in dispute in these proceedings. In any event, that submission has to be considered in the context of the available documentary evidence which is relatively contemporaneous with the events. In the Education claim, the document any evidence is at least contemporaneous with the timing of the complaints made by the plaintiff. The documentary evidence concerning the DCS claim is contemporaneous in the sense that it immediately followed those events. 209 In this context, it is relevant to review the documentary evidence. 210 The alleged sexual assaults that gave rise to the Education claim have been the subject of a claim for victims' compensation, which was originally rejected by the Victims Compensation Tribunal. ["VCT"]. That decision was reversed on appeal. It is apparent that in the victims compensation proceedings there were evidentiary statements from Mrs Harding, Mr Clayton and Mr Shalin, who were employees at the Glenfied Park School, as well as Detective Sgt Issanchon, a police officer who investigated the factual circumstances of those alleged assaults. None of those factual statements were tendered in these applications brought by the defendant and there is no suggestion these statements are unavailable for use by either party in the proceedings. There is no evidence these witnesses are either unavailable or that their recollections have significantly faded, as has been submitted. 211 The VCT materials, some of which were tendered as part of Annexure A to the affidavit of the plaintiff's solicitor makes reference to the " extensive medical history " of the plaintiff within those files: p 17 of Annexure A , to the affidavit of "S 1" . That material also demonstrates that the plaintiff has provided affidavits and factual statements concerning the alleged sexual assaults at Glenfield Park School. In addition, there is a transcript of the factual evidence the plaintiff gave in the appeal from the VCT decision, as well as the detailed statement he gave the investigating police officer: pp 51-70 of Annexure A , to the affidavit of "S 1" . 212 Also tendered in the VCT proceedings was a school counsellor's report dated 11 November 1998, and a range of other documents and statements that concerned the plaintiff's time at the school: pp 70-72 of Annexure A , to the affidavit of "S 1" . The plaintiff's statement dated 19 March 1993 provides a coherent account of the events comprising the sexual assault claim concerning the plaintiff's time at the school. 213 The alleged sexual assault, which is the subject of the DCS claim is well documented, and is contemporaneously corroborative of the underlying facts concerning the DCS claim. The DCS documentation, the Corrections Health records and the related statements, as well as the RPAH clinical records relating to the medical assessment of the plaintiff at that hospital following his claim that he had been sexually assaulted whilst in gaol, all comprise contemporaneous documentation. There is no doubt that this material could be called upon to assist witnesses to aid or refresh their memories of any relevant events described in those documents. 214 In my view, the existence of this range of documentation makes it difficult to accept that there is little or no corroborative evidence that supports the plaintiff's claim. 215 In any event, irrespective of the existence or absence of corroborative materials against which to test the plaintiff's claims, it should be observed that there is no legal or evidentiary requirement that for their acceptance, the plaintiff's claims must be supported by corroborative evidence. The claims are capable of being sustained on the basis of the evidence of the plaintiff alone, although it is correct to say that the existence of corroborative evidence might enhance the likelihood of the plaintiff's evidence on critical matters being accepted, or alternatively, assist the defendant to argue for caution against accepting the plaintiff's evidence without corroboration, because of other evidentiary or credit considerations. 216 The presence or absence of corroborative evidence is a purely co-incidental matter. The purpose of recording this obvious statement is to emphasise that in respect of the underlying factual matters, it is unreasonable for the defendant to assert that it is relevantly or even significantly prejudiced by reason of the absence of corroborative material with which to test the veracity of the evidence of the plaintiff. That unreasonableness necessarily arises because corroboration is not a legal pre-condition or requirement for success of the claims made by the plaintiff. Further, there is no evidence that such corroborative material existed at an earlier time but is no longer in existence. No relevant prejudice can arise from those circumstances. 217 On the foregoing analysis I reject the submission that material, relevant or significant prejudice arises because of the effluxion of time and the likely fading of memories so as to diminish the likelihood of reliable evidence being available to be called at the trial of these proceedings, to either test the plaintiff's versions of events, or to contradict them. Delay 218 The defendant's submissions concerning prejudice arising from cumulative delay in the prosecution of the proceedings must be examined in the procedural context of a continuum commencing with the events giving rise to the plaintiff's claims, traversing key procedural events along the time line of events to the present time, and in the context of the plaintiff's probable legal incapacity. 219 It seems to me that for the purposes of the analysis, for determining whether the relief sought by the defendant is justified in the circumstances of the cases, there are four distinct phases of delay that require consideration. 220 These are first , in the pre-litigation period before expiry of the limitation periods, s econdly , the period marking the commencement of the effect of an order already made for a stay of proceedings until the time the plaintiff tried unsuccessfully to have that stay removed, thirdly , the period during which that stay continued to operate from that time until the time when the present motions were filed by the defendant, and fourthly , the subsequent period during which the proceedings have been the subject of most recently imposed case management orders that were issued and supervised by the court. 221 As a preliminary matter, before analysing those periods it is appropriate to consider an authority to which I have been referred concerning the significance of delay in these cases. 222 There can be no question that the effect of delay on the quality of justice is but one of the influences that motivates legislation that enacts limitation periods: Brisbane South Regional Health Authority v Taylor [1996] HCA 541, (1996) 186 CLR 541, per McHugh J at p 552. 223 The defendant points to the very considerable delay in these cases, and to the evidentiary arguments said to flow from that delay, to argue that a resultant presumptive prejudice arises once a real possibility of significant prejudice is shown to have arisen and is of a kind contemplated by McHugh J in Brisbane South Regional Health Authority v Taylor at p 555. 224 In my view that authority is of no assistance to the defendant in these cases because the remarks were of specific and critical application to the exercise of discretion in a limitation case: Brisbane South Regional Health Authority v Taylor , per McHugh J at p 555. 225 In that regard, at p 555, McHugh J stated: " If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, [the witness] might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important . To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action." [Emphasis added] 226 Unlike the position identified in Brisbane South Regional Health Authority v Taylor , the present cases are not cases where the defendant's potential liability had expired before the commencement of proceedings. Both of the plaintiff's claims are on foot, albeit that they are stayed for the moment. Since the time the plaintiff filed his claims, the defendant has, or ought to have been, on its enquiry as a necessary part of the preparation of the defence of the plaintiff's claims, taking such forensic decisions and steps to address the relevant factual and legal issues as it saw fit. The present cases do not require the exercise of the court's discretion to lift the limitation bar. Therefore, different considerations apply to the process of an evaluative judgment of whether the proceedings should be dismissed or stayed permanently. 227 In the paragraphs that follow, I set out my consideration in relation to each of the four identified periods of delay. First phase of delay - pre-litigation delays 228 The plaintiff was born on 11 May 1977. Absent any other cause for legal incapacity, such as cognitive or other issues that affect legal capacity, the plaintiff would have reached his majority on 11 May 1995. In respect of the Education claim, when the events giving rise to that claim took place in the period 1989-1991, the plaintiff was a minor aged 12-14 years. In respect of the DCS claim, when the events in question occurred on 11 March 1999, the plaintiff was aged 22 years. At that time he was in prison in protective custody. 229 In the ordinary course, if the plaintiff had not been affected by legal incapacity, on reaching his majority, he would have had an unfettered right to commence proceedings for the Education claim by 1998, and in fact he did so, by filing the first claim on 7 May 1998, some 7-9 years after the course of events in question. The DCS claim was filed on 12 December 2001, which was some 2 years and 9 months after the event in question. Neither of the two proceedings in question here were filed outside the prescribed limitation periods. 230 As the plaintiff's proceedings were each filed within time, I therefore find that upon an analysis of the first phase of delay, no valid complaint can be made by the defendant concerning any significant prejudice arising from any delay in the pre-filing period as these applications do not involve any question of leave to extend a limitation period: Brisbane South Regional Health Authority v Taylor , per McHugh J at p 555.2. Different considerations arise once the proceedings have been filed, and those considerations follow. Second phase of delay - delay between filing and stay ordered on 23 June 2004 231 Once the proceedings were on foot, the parties were required to be on their mettle to undertake the required preparation to either advance or to defend their respective positions within the confines of the procedural rules, the availability of evidence, and time constraints imposed by case management orders. 232 In analysing the second phase of the delay, it is important to observe at the outset, that on 23 June 2004, the defendants were successful in securing an order that in each case, the plaintiff's proceedings be stayed until the further order of the court because of the absence of a tutor in the presence of legal incapacity. It appears those orders were never rescinded. 233 In my view, in the analysis of this second phase , it is highly significant that for some considerable period of time the plaintiff was presumed to lack legal capacity, hence the order of a stay, notwithstanding that he had at times purported to act for himself in the proceedings. 234 The significance of the grant of a stay is that in a litigation sense, and subject to any other orders of a court, time stands still for a person with legal incapacity. No further substantive steps could have been taken by the plaintiff to advance the litigation without the leave of the court. As a person with presumed legal incapacity, as was borne out on 4 February 2008 when the plaintiff unsuccessfully sought to have the stay lifted because he did not have a tutor, the plaintiff was unable to take steps to advance the litigation after 23 June 2004. 235 It therefore emerges from this analysis that any argued failures on the part of the plaintiff to advance the litigation from the inception of the litigation until the imposition of a stay on 23 June 2004, were as a result of presumed legal incapacity on his part. Accordingly, in my view, the delay which occurred in that second period does not amount to delay of such a character that of itself and without consideration of other relevant factors, warrants dismissal of the proceedings or the imposition of a permanent stay, even when it is considered in this context some 7 years after that stay was ordered. 236 I consider that it would be unreasonable, unfairly harsh and unjust to the plaintiff if his presumed legal incapacity in the pre-stay period of the litigation were to be used in combination with the delay in this second phase as a basis for dismissing or permanently staying his proceedings at this point, particularly since the stay that was ordered on 23 June 2004 continues to have effect. Third phase of delay - 23 June 2004 to 23 April 2010 237 The analysis of the third phase of the delay must take place in the context of the continued operation of the stay ordered to have effect from 23 June 2004, including when on 11 February 2008, the plaintiff unsuccessfully applied to the List Judge to have the stay removed. Thereafter, when the plaintiff found himself unable to have the stay removed, that stay continued to remain in place and to have effect, including up to 23 April 2010, which was when the defendant filed the present motions seeking dismissal or permanent staying of the proceedings. 238 During the initial period of the third phase of identified delay, namely in the period between 23 June 2004 and 23 April 2010, it is salient to note that on 27 July 2004 the Protective Commission appeared at court for the purpose of making some kind of representations. The precise nature and content of those representations remain unrecorded, as is the case with the other occasions on which the Protective Commission appeared at court to make submissions or to observe the exchanges that occurred on those occasions. In that period there were several recorded non-attendances of the plaintiff at court listing dates. That would not have been all that remarkable during the currency of a stay, especially since that was at a time when the plaintiff was without apparent representation. 239 In that context, because of the stay, on 5 September 2005, the Judicial Registrar ordered that the proceedings be placed in the court's inactive list. Successive annual administrative reviews by the court determined that the proceedings should remain in the inactive list until 1 September 2008. The apparent reasons for that position were that no tutor or legal representative had been appointed and the stay previously ordered on 23 June 2004 continued to operate. 240 In this regard it is noteworthy that on 11 February 2008, when the plaintiff attempted to have the stay removed himself without legal assistance, he was unsuccessful in that endeavour. This resulted in confirmation of the earlier stay being confirmed in its continued operation. 241 In the third phase of analysed delay, whilst the stay of proceedings continued to operate, in the context of a consideration of who should bear the responsibility for procedural default, in my view, there can be little valid procedural criticism of the plaintiff in terms of blame on his part for the delay incurred during that period because, as a person with presumed legal incapacity, and being without a tutor, he was powerless to change the status of the proceedings. 242 In those circumstances the plaintiff could not have by himself taken substantive steps in the proceedings without the leave of the court. He needed a tutor before substantive steps could be taken on his behalf. In those circumstances the continued absence of an appointed tutor until only recently on 28 January 2011, is hardly a fair criticism of the plaintiff, especially where the Protective Commission was on occasions making periodic appearances to assist the court, yet at the same time showing some considerable ambivalence towards the issue of whether it would act on the plaintiff's behalf as tutor in the proceedings, apparently on account of issues to do with the availability of legal aid. 243 As no definitive evidence was called relating to the position or any actions taken by the Protective Commissioner in that period, I draw no adverse conclusions other than to simply note that at the time the plaintiff was a person who was presumed to have been affected by legal incapacity, and on the medical and allied evidence I have reviewed, that position has most probably continued to be the case. Fourth phase of delay - 23 April 2010 to the present time 244 Analysis of the fourth phase of the delay in the period from 23 April 2010 until the hearing of these motions must also proceed in the context of the previously ordered stay continuing to operate. 245 Analysis reveals that in this period, the proceedings were kept under regular case management review by the court. In that period there were 2 case management listings before an Assistant Registrar, namely on 14 May 2010 and 16 July 2010. Thereafter, there were 6 case management hearings before a Judge, namely on 5 October 2010, 11 November 2010, 25 November 2020, 21 December 2010, 1 February 2011 and 5 April 2011. The end result of those listings was that after the appointment of the tutor the present motions were listed for a hearing to commence on 15 June 2011 in order that the applications be determined on their merits. 246 In my view, whilst the defendant's motions were being considered in the context of case management listings, it would be unreasonably harsh, unfair and unjust to the plaintiff to utilise against him, the fact of the late appointment of a tutor in this fourth phase of delay and during this latter period of case management. Conclusion concerning effect of delay 247 In my view, the compelling conclusion that emerges from an examination of the substantial delays that have occurred in the proceedings and which have prevented the earlier progress of the litigation, is that the plaintiff should not be procedurally penalised by such delays. This is because, during the entire period under consideration, he has been a person affected by legal incapacity who has, until very recently, also been without legal representation and without representation by a legally responsible tutor. In my view, as a consequence, the remedies sought by the defendant, namely dismissal or permanent stay, are not warranted on account of the factor of accumulated delay in finalising these proceedings. Anticipated future want of due despatch 248 The defendant argued that the recent appointment of a tutor in the proceedings on 28 January 2011 will provide no assurance that in the future, the plaintiff's proceedings will be advanced or conducted with due despatch. 249 I do not accept that submission. On the contrary, the assumption must be that the tutor will act on legal advice and in a regular manner, and in the best interests of the plaintiff. Further, it must be assumed, until it has been shown to be otherwise, that the proceedings will be appropriately and now closely supervised by the court through case management orders. This includes the possibility of the imposition of sanctions for any procedural defaults, if this proves necessary. Conclusions 250 Having considered the preceding factors on their own and in combination, I have concluded that the entitlement of the defendant to the claimed relief of dismissal or permanent staying of the plaintiff's proceedings, as sought in the two notices of motion under consideration, is not justified on the evidence. 251 Whilst these two complex proceedings each have been subject to substantial delays and lack of progress since they were filed, this has been in the context of the plaintiff being subject to legal incapacity in circumstances where there has been no tutor acting to protect his interests during the operation of a stay, where that stay has been in operation for a period of 7 years. In my view, those delays cannot reasonably be said to be all due to the plaintiff's culpability in a procedural sense where a pending stay effectively prohibited the plaintiff, or anyone acting on his behalf, from taking any procedural steps to advance the proceedings without an order of the court. The reality is that the plaintiff has not had a tutor during that period. A consideration of claims of want of due despatch and prejudice must be viewed against that background because in the sense of legal capacity, the delays and lack of progress of the litigation and the ability of the plaintiff to fulfil his obligations under ss 56 - 57 of the CP Act have been beyond his control: s 58(2)(b)(iii) of the CP Act . 252 I have concluded that the type of delay incurred in these cases is of an entirely different character to that which was criticised in Batistatos v RTA & Anor because in the present cases, what has been described as dilatoriness of the plaintiff, whilst regrettable and frustrating for the defendant, should be more properly viewed in terms of the plaintiff's legal incapacity, and in the context of the continued operation of the stay. When viewed in that light, the description of dilatoriness as argued by the defendant is more simply characterised as a significant lack of progress due to events and circumstances outside of the plaintiff's rational and effective control. That latter characterisation, which I consider to be the more appropriate one in the circumstances, necessarily requires rejection of the claim by the defendant that in the face of the cumulative delays to date, the delayed disposal of the proceedings amounts to a lack of due despatch. 253 Similarly, I am not satisfied that the proceedings should be either dismissed or permanently stayed due to an argued abuse of process because a fair trial could not be achieved. The applicant / defendant's submission in that regard was based on the analysis in RTA & Anor v Batistatos [2005] NSWCA 20, where at [76] Bryson JA observed in that case that the prospect of evidence about the design and construction of roads four decades earlier was likely to be slight and not reliable. The present cases are in a different category to that case in that the relevant report by the plaintiff of the sexual abuse allegedly perpetrated upon him was made to a responsible person who was alive at the time the proceedings were filed, and if the defendant was able to do so, focussed evidence in answer to the plaintiff's claim could have been sought during the lifetime of that person, including from any other relevant witnesses. It is not the fault of the plaintiff that evidence in rebuttal of his claim is apparently unavailable to the defendant. The DCS claim is also in a different category to the case cited as there are contemporaneous gaol and medical records which contra-indicate a relevant or a significant prejudice to the defendant in respect of that claim. 254 Further, in my view, having regard to the dictates of justice between the parties, in this instance the continued maintenance of the plaintiff's cases should not be circumvented on the ground of argued lack of merit of the kind that was being referred to by Young JA in Bi v Mourad, at [33], or for an argued characterisation of a " ceremonial enactment of an opportunity to establish whether or not the plaintiff has the rights he claims ", as was submitted by the defendant in these motions, based on the remarks of Bryson JA in RTA & Anor v Batistatos at [81]. 255 On the contrary, if the underlying factual allegations relied upon by the plaintiff are accepted in the Education claim and/or the DCS claim, my analysis of the medical and allied evidence reveals that the plaintiff's cases have arguable merit, which strongly contradicts a call for dismissal at this interlocutory stage: General Steel . In interlocutory proceedings it is not an answer for the defendant to simply argue that such claims depend upon the assessment of the credibility of the plaintiff's testimony. If anything, an argument of that kind tends to support the conclusion that there should be a trial of the issues so raised. 256 On the present state of the expert evidence, it would appear that at a trial of the issues, the defendant faces significant challenges in establishing that in a causation sense, the plaintiff's current psychological problems are not the result of the natural and probable consequences of the events complained of, but were instead due to predisposing factors that are unrelated or are unaffected by those events: Watts v Rake ; Purkess v Crittenden . Those circumstances have very little to do with the effluxion of time but have a great deal to do with the effect on the plaintiff of the events complained of by him. 257 I have concluded that in the face of any presumptive prejudice that has arisen due to the substantial effluxion of time, the defendant has failed to establish material or significant prejudice, whether arising from the effluxion of time, or a claimed likelihood of faded recollections of witnesses, or the threatening conduct of the plaintiff, or any of the other factors I have reviewed in my consideration of the issues. 258 Whilst there is no doubt that for the defendant, the plaintiff's threatening behaviour has been challenging and frustrating, and also somewhat alarming, that behaviour has to be viewed in terms of the medical and allied opinions as to the cause of such behaviour, and the most probable correct medical diagnosis of its causes. In that regard, following my analysis of the medical evidence that has been tendered in these applications, I do not accept that at a trial the medical and allied experts will be unable to reach a medical diagnosis of the plaintiff's problems. In my view there is an apparent confluence in the opinions of Dr Ali, Dr Lianos, Dr Phillips and Dr Vaux, and those opinions ought to be readily amenable to analysis by medical experts and by the court at a trial. 259 The remedy sought by the defendant under UCPR r 12.7 has to be considered in the light of ss 56 - 58 of the CP Act . In that analysis I must have regard to the dictates of justice between the parties when considering whether orders for dismissal or for a permanent stay are justified. The factors for consideration require that the proceedings be conducted with due despatch and economy, or to adopt the intent of s 56, quickly and cheaply, cannot be considered in isolation without the element of justice between the parties also being given due emphasis, especially where the plaintiff carries the burden of legal incapacity. 260 In that regard, there is no question that in these cases, the very slow progress or non-progress in the proceedings to this point has caused probable additional expense to the parties, especially to the defendant. This has been in respect of the numerous interlocutory court appearances and hearings identified in Appendix I and Appendix II which ought to have been avoidable if the plaintiff had been represented by a tutor who had engaged solicitors in a regular manner. Whilst this has in the past tended to at least in part frustrate the objects of s 56, the present issue of paramount importance is that of achieving justice between the parties. 261 In my evaluation of the circumstances, the interlocutory dismissal or a permanent stay of these proceedings would be an unjust result in these cases where the plaintiff has a legal incapacity that is at least in part arguably related to the events of which he complains in the litigation, and which has been the source of major delay in the form of an order for a stay that has been in place since 23 June 2004. I consider that in these circumstances, dismissal of the proceedings, or the imposition of a permanent stay, would be an unfair and unbalanced result that would be contrary to the true objects of achieving justice between the parties and generally. 262 Whilst I accept that the defendant has incurred considerable frustration, inconvenience and expense in the course of delayed justice to this point, that is not the overriding factor that should be seen to outweigh the countervailing factors that operate in favour of the plaintiff being allowed to continue the litigation, as against the defendant's desire to close its files. 263 In my view the defendant has failed to discharge the onus of showing that it has been significantly or materially prejudiced in achieving a fair trial of the issues where the outcome of the proceedings essentially depends upon an acceptance or rejection of the plaintiff's account of events, and an acceptance or rejection of the opinions of experts on the psychological significance to the plaintiff, of those events. 264 Having reviewed the issues arising from the medical and allied opinions it is clear that any trial of these issues will certainly not be perfect or ideal. However, for the reasons I have reviewed at length, I am not persuaded that the delay and conduct of the plaintiff has caused so much of a departure from what might otherwise be considered to be a perfect or ideal trial that irremediable prejudice arises so as to warrant orders for dismissal or a permanent stay. I am not persuaded that either the effluxion of time or the state of the evidence compels the necessary conclusion that a fair trial will be prevented: Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128, per Priestley JA, at [79]. Disposition and costs 265 I have concluded that in each case, the motions filed by the defendant should be dismissed. Having regard to substantial delays having occurred to date, it should be noted that this is largely due to the fact that no one has previously taken responsibility for ensuring that steps were being taken on behalf of the plaintiff to finalise these proceedings in a timely manner. In ordinary circumstances, this may well merit an order for costs being made against the plaintiff. The defendant has been forced to file these motions in order to obtain an indication that steps will now be taken to advance the plaintiff's case in a regular manner from this point, and to conclusion. 266 Whilst such circumstances may merit a costs order being made against the plaintiff, I cannot ignore the matter of the plaintiff's legal incapacity throughout and the evidence which suggests that he seems to have been significantly affected by psychological issues that may well have a bearing on the delay issue. Having identified that view, I consider it only appropriate to defer the consideration of the question of the costs of these motions until after a trial, at which time the psychological issues would have undergone a more definitive analysis and assessment in order to gauge their effect on the plaintiff, and therefore, the consequences of such matters with regard to costs. 267 In these circumstances I consider the appropriate order for costs is that the costs of both of these motions should be costs in the cause. 268 Having reviewed the procedural issues brought to light by these motions, I consider it is appropriate that I make some further case management directions aimed at facilitating the quick, just and cheap disposal of the proceedings: s 56, CP Act . Before doing so I will hear from the parties as to what is proposed in this regard. Orders 269 In each of the motions respectively filed in proceedings 1998/57017 and 2001/95166, I make the following orders: (1) Non-publication orders are made with respect to the names and identification details of the plaintiff “A”, his tutor “S”, the solicitors “CSO 1”, “CSO 2”, “CSO 3”, “S1” and “Dr A”, “Dr B”, “Dr C” and “Dr D”; (2) Each of the motions filed by the defendant seeking to dismiss, or alternatively, to stay the plaintiff’s proceedings, are dismissed; (3) The costs of the dismissed motions are to be costs in the cause; (4) The exhibits may be returned; (5) I will hear the parties before making case management directions; (6) Liberty to apply on 7 days notice if further orders are required ; (7) I order that the document marked “MFI 3” be placed in a sealed envelope which is not to be opened except by, or at the order of a Judge of this court, or by a Judge of the Court of Appeal on a review of this order . Appendix I Significant listing dates of the Education claim (1) On 18 November 1998 the matter was listed before the Registrar, It was noted the matter could not proceed as the plaintiff was in custody until 3 June 1999; (2) On 20 January 1999 a status conference was convened. At that time the plaintiff was still in custody. A directions hearing was appointed for 6 April 1999 for the plaintiff to show cause as to why his proceedings should not be struck out; (3) On 6 April 1999 it was noted that the plaintiff was still in custody. The show cause hearing was relisted for a hearing to take place on 2 August 1999; (4) On 2 August 1999 it was noted that the parties were ready to take a hearing date and the matter was referred to the List Judge for that purpose; (5) On 7 December 1999 the parties were represented before the List Judge at a scheduled directions hearing. The court file was marked "Not Ready" and the matter was stood over to a further directions hearing scheduled to take place on 13 December 1999. The parties were required to deliver a statement of reasons if the matter was not ready on the next occasion; (6) On 13 December 1999 the parties were represented before the List Judge at the scheduled directions hearing. The court file was marked to the effect that the plaintiff would not be ready until after February 2000. On that basis the matter was stood over to a re-scheduled directions hearing to take place on 29 May 2000 with the requirement that if not ready on that occasion, a statement of reasons was to be delivered; (7) On 29 May 2000 the parties were represented before the List Judge at a directions hearing. The matter was stood over for a further directions hearing to 15 June 2000. A show cause notice was handed to the parties and the costs of the day were reserved; (8) On 15 June 2000 the parties were represented before the List Judge at a directions hearing. The plaintiff was ordered to reply to correspondence from the defendant. The matter was stood over for a further directions hearing to 1 August 2000. Costs were reserved. (9) On 1 August 2000 the parties were represented before the List Judge at a directions hearing. It was noted that the plaintiff had complied with orders. The matter was stood over for a further directions hearing to 10 August 2000. (10) On 10 August 2000 the parties were represented before the List Judge at a directions hearing. There were no hearing dates available for matters estimated to proceed for in excess of 5 days. The matter was stood over for a further directions hearing to 15 November 2000 for the purpose of fixing a hearing date; (11) On 15 November 2000 the parties were represented before the List Judge at a directions hearing. The matter was specially fixed for hearing before a nominated Judge with the hearing to commence on 12 March 2001 with an allocated estimate of 7 days; (12) On 14 February 2001 the parties were represented before a Judge. Senior counsel appeared for each of the parties. The hearing date fixed for 12 March 2001 was vacated and the plaintiff was ordered to pay the costs of the motion for vacation of the hearing date. The reason for the adjournment was so that the plaintiff could apply for an order under the Protected Estates Act 1983. A further directions hearing date was scheduled for 23 April 2001; (13) On 23 April 2001 the parties were represented before a Judge at a directions hearing. The matter was stood over for a further directions hearing to 29 October 2001 for the purpose of the plaintiff pursuing an application under the Protected Estates Act 1983; (14) On 21 February 2002 a Judge made an order in chambers altering the next directions hearing date to 5 March 2002; (15) On 5 March 2002 the parties were represented before a Judge at a directions hearing. The matter was stood over for mention on 12 April 2002. The plaintiff was directed to file and serve evidence concerning the status of the matter, including the appointment of a tutor and the steps that remain to be taken to achieve readiness for hearing; (16) On 2 April 2002 the parties were represented before a Judge. Leave was granted for the defendant to file a notice of motion returnable on 9 April 2002; (17) On 24 May 2002 the parties were represented before a Judge. The defendant's notice of motion filed on 9 April 2002 was dismissed but the plaintiff was ordered to pay the costs of that motion. The matter was stood over for mention on 9 July 2002; (18) On 9 July 2002 the parties were represented before a Judge. The plaintiff was required to clarify the state of pleadings. The proceedings were stood over for mention to 9 August 2002, to be mentioned with proceedings numbered 14065 of 2001 in respect of the DCS claim. Costs were reserved. (19) From 6 August 2002 these proceedings were case managed in conjunction with the DCS proceedings and the case management dates set out in Appendix II from 6 August 2002 reflect the further case management course of the matter. Appendix II Significant listing dates of the DCS claim (1) On 20 June 2002 the plaintiff appeared and was self represented at a directions hearing. It was noted that the plaintiff had "served all reports" and was ready to take a hearing date. The defendant required further time and the matter was stood over for a further directions hearing on 9 July 2003. The inter-relationship of damages issues with the Education claim was noted on the file. The defendant was ordered to pay the plaintiff's costs of the day. (2) On 9 July 2002 the List Judge noted there was a difficulty of the plaintiff's representation, including the need to resolve the issue of the involvement of the Protective Commission. The matter was stood over for further mention to 6 August 2002. (3) On 6 August 2002 the proceedings were mentioned before the List Judge. The proceedings were stood over for further mention to 22 October 2002, noting the inter-relationship with the Education claim. (4) On 22 October 2002 the List Judge noted that the plaintiff was in custody. The plaintiff was directed to inform the defendant within 14 days whether it was intended to amend the statement of claim. The matter was stood over to the long matters call-over list for 17 December 2002. (5) On 26 November 2002 the parties appeared. A notice of motion filed by the plaintiff was listed for hearing for 27 February 2003. (6) On 3 December 2002 a directions hearing took place before the Registrar. It is not clear as to whether the parties appeared. The court issued both parties with a show cause notice returnable on 20 August 2002. (7) On 17 December 2002 neither party appeared before the List Judge. The matter was stood over to the long matters call-over list for 19 May 2003. (8) On 27 February 2003 the parties appeared before a Judge. The defendant was granted leave to file a notice of motion seeking to have the plaintiff's proceedings dismissed. Motion fixed for mention on 20 March 2003. (9) On 20 March 2003 there was no appearance by the plaintiff and the matter was stood over for mention to 29 May 2003. (10) On 19 May 2003 the matter was listed before the List Judge. The parties did not appear. A representative of the Protective Commission was present. The matter was stood over for directions to 29 May 2003. (11) On 29 May 2003 the parties appeared before a Judge. The Protective Commission was required to indicate whether it intended to pursue the proceedings on the plaintiff's behalf. (12) On 7 August 2003 the parties appeared before a Judge. The proceedings were listed for mention on 18 August 2003 for the purpose of fixing a hearing date. (13) On 18 September 2003 the parties appeared before a Judge. A direction was given that the issue of liability be determined separately from the issue of quantum. The proceedings were stood over to the long matters call-over on 3 November 2003, along with direction for both proceedings to be heard together. (14) On 3 November 2003 both parties appeared before the List Judge. The Protective Commission also appeared. The court file noted that a proposed defence motion seeking a permanent stay was to be listed for hearing on 8 March 2004 with an allocated estimate of 2 days. A notation was made on the court file that a secure court was required due to the plaintiff's psychiatric condition. At this time the proceedings were fixed for a hearing with a 30 day estimate to commence on 20 September 2004. (15) On 5 March 2004 the parties appeared before the List Judge. The Protective Commission also appeared. Orders were made vacating the date fixed for the notice of motion scheduled to be heard on 8 March 2004. A directions hearing was appointed for 17 March 2004. (16) On 17 March 2004 the parties appeared before a Judge. The Protective Commission also appeared. The defendant's notice of motion fixed for 8 and 9 March 2004 was vacated and further directions were given in accordance with short minutes; (17) On 30 March 2004 the defendant appeared before a Judge. There was no appearance by the plaintiff. A notice of motion filed by the defendant was fixed for hearing for 22 (sic for 23) June 2004, along with other orders. (18) On 23 June 2004 both parties appeared before a Judge. The Protective Commission appeared for the purpose of arguing issues concerning the appointment of a tutor. Orders were made in accordance with short minutes which envisaged that the Protective Commission would file a consent to act as tutor. No such document was ever filed. Liberty was granted to apply generally and to seek vacation of the hearing date of 20 September 2004 on reasonable notice. A costs argument was stood over to be determined on the following day. (A stay had apparently been ordered on this day, it is not noted on the court file but it is noted as order 2 in the short minutes.) (19) On 24 June 2004 both parties appeared before a Judge. The plaintiff and the Protective Commission were ordered to pay the defendant's costs of a notice of motion. (20) On 27 July 2004 both parties appeared before a Judge. The Protective Commission was also represented. Leave was given to the defendant to file a notice of motion. The proceedings were stood over for directions before the List Judge on 4 August 2004. (21) On 4 December [sic for August] 2004 the defendants appeared before a Judge. There was no appearance by the plaintiff on that occasion. A notice of motion returnable on this day was stood over to be heard on 12 August 2004 and the court was to notify the plaintiff of that listing. (22) On 12 August 2004 the defendants appeared before a Judge. There was no appearance by the plaintiff. The hearing date that had been fixed for 20 September 2004 was vacated on the application of the defendant. The stay granted on 23 June 2004 was ordered to continue pending the appointment of a tutor. (23) On 5 September 2005 the defendant appeared before the Judicial Registrar. There was no appearance by the plaintiff. It was noted that the matter remained stayed. The matter was placed in the courts inactive list for 1 year, and was to be reviewed after 5 September 2006. It was noted the defendant might file a notice of motion seeking to have the proceedings dismissed. (24) On 20 September 2005 the court file shows the matter was incorrectly listed. There was no appearance for either party on this day. (25) On 7 November 2005 the Judicial Registrar reviewed the file in chambers and noted the matter may be relisted for directions when legal representation of the plaintiff was obtained. (26) On 1 September 2006 the Judicial Registrar reviewed the file in chambers and noted that at that stage no tutor had been appointed, nor had legal representation being obtained. It was noted that the stay that had been previously ordered would continue to operate. The proceedings were returned to the inactive list for a further 1 year with a notation for a review to take place after 1 September 2007. (27) On 12 September 2007 the Judicial Registrar reviewed the file in chambers and noted that no tutor had been appointed at that stage. It was also noted that no legal representation had been obtained. It was noted that the stay that had previously been ordered would continue to operate. The proceedings were returned to the inactive list for a further 1 year with a notation for a review to take place after 1 September 2008. (28) On 9 October 2007 the parties appeared before the Judicial Registrar. The plaintiff was ordered to file any notice of motion seeking removal of the stay within 21 days. The proceedings were stood over to a case management directions hearing on 6 November 2007. (There is no indication that any such notice of motion has been filed) (29) On 6 November 2007 the defendant appeared before the Judicial Registrar. There was no appearance for the plaintiff. The defendant was ordered to complete service of all documents in support of " the notice of motion " by 4 December 2007 and the plaintiff was to file anything in reply by 18 January 2008. The notice of motion was listed to appear in the reserve list on 6 February 2008. The file was noted to the effect that the defendant requested that the hearing take place in a secure court. (30) On 6 to 8 February 2008 a notice of motion was heard before a Judge. The plaintiff was self represented and the defendant was represented by counsel. The proceedings were stood over for judgment to be delivered on 11 February 2008. (31) On 11 February 2008 the plaintiff's application for the revocation of the stay was refused and dismissed and the stay that was ordered on 23 June 2004 was ordered to continue. An order was made that the proceedings were not to be relisted for review during the operation of the stay. (32) On 14 May 2010 the parties appeared before the Assistant Registrar. It appears that motions seeking the dismissal of the plaintiff's proceedings had been filed at this stage. These motions were stood over to the general motions list to be heard on 16 July 2010. (33) On 16 July 2010 the parties appeared before the Assistant Registrar. The motions seeking dismissal of the plaintiff's proceedings were stood over to be heard on 5 October 2010 with an allocated 1 day estimate. (34) On 5 October 2010 the parties appeared before a Judge. The motions seeking dismissal that were listed to be heard on that day were stood over to be heard by that Judge on 11 November 2010. On this occasion the court file contains the notation that the possibility of the appointment of a tutor was to be explored as well as what further steps were to be taken in relation to the notice of motion. Costs of the day were reserved. (35) On 11 November 2010 the parties again appeared before the Judge who made orders on 5 October 2010. The motions for dismissal were stood over to 25 November 2010. It was noted that the proceedings were to be case managed until the proceedings were to be referred back to the List Judge. No other specific orders were noted on the court file on this occasion. (This must be read as a reference to an alternative List Judge as the List Judge made an order on 5 March 2004 by which he disqualified himself from further dealings with the plaintiff's cases.) (36) On 25 November 2010 the parties again appeared before the Judge who made the most recent orders. In the course of case management the proceedings were stood over for directions on 21 December 2010. No other specific orders were noted on the court file. (37) On 21 December 2010 the parties again appeared before the Judge who made the most recent orders. The proceedings were stood over for further directions on 1 February 2011. Orders were noted on the court file requiring the plaintiff to appoint a tutor if orders [or dismissal] were to be avoided. It was foreshadowed that there would be a timetable fixed for the further conduct of the proceedings. The question of costs was reserved. (38) On 1 February 2011 the parties again appeared before the Judge who made the most recent orders. Case management orders were made in accordance with short minutes. The proceedings were stood over for further directions on 5 April 2011.The matters in paragraphs 1 and 5 of those short minutes were noted and costs of the day were reserved. (39) On 5 April 2011 the parties again appeared before the Judge who made the most recent orders. The defendant's motions seeking dismissal or stay of the plaintiff's proceedings were fixed for hearing to commence on 15 June 2011, with an allocated estimate of 2 days. The defendant was ordered to serve within 7 days any further evidence upon which it intended to rely. The plaintiff was ordered to serve any further evidence within 28 days and leave was given to the defendant to serve any evidence in reply within 14 days of being served with any further evidence from the plaintiff. (40) On 15 June 2011 the hearing of the defendant's motions seeking dismissal or stay commenced and then continued on 16 and 23 June 2011. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2011