A v City of Swan [No 5]
[2010] WASC 204
•16 AUGUST 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: A -v- CITY OF SWAN [No 5] [2010] WASC 204
CORAM: MURPHY JA
HEARD: 26 MAY 2010
DELIVERED : 16 AUGUST 2010
FILE NO/S: CIV 1341 of 2002
BETWEEN: A
B
PlaintiffsAND
CITY OF SWAN
Defendant
Catchwords:
Practice and procedure - Application for declaration pursuant to O 70 r 1 Rules of the Supreme Court 1971 (WA) that a party to the action is incapable of managing their own affairs in these proceedings - History of psychiatric condition - Turns on own facts
Legislation:
Mental Health Act 1996 (WA)
Rules of the Supreme Court 1971 (WA), O 70 r 1
Result:
Application granted
Declaration given
Category: B
Representation:
Counsel:
Firstnamed Plaintiff : In person
Secondnamed Plaintiff : In person
Defendant: Mr G A Rabe
Solicitors:
Firstnamed Plaintiff : In person
Secondnamed Plaintiff : In person
Defendant: Norton Rose Australia
Case(s) referred to in judgment(s):
A v City of Swan [No 4] [2009] WASC 155
Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd [2009] WASCA 33
Beall v Smith (1873) LR 9 Ch App 85
Cadwallender v The Public Trustee [2003] WASC 72
Dalle‑Molle v Manos [2004] SASC 102; (2004) 88 SASR 193
Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423
L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 91 ALD 258
Masterman‑Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511
Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51
Neilson v City of Swan [2006] WASCA 94
Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307
Owners of Strata Plan No 23007 v Cross [2006] FCA 900; (2006) 153 FCR 398
Sanders v Snell (No 2) [2003] FCAFC 150; (2003) 130 FCR 149
Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329
Secretary, Department of Health and Community Services (NT) v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218
White v Fell (Unreported, EWCACiv, 12 November 1987)
MURPHY JA:
Introduction
This is the defendant's application for a declaration pursuant to O 70 r 1 of the Rules of the Supreme Court1971 (WA) that the second‑named plaintiff, Ms B, is a person incapable of managing her own affairs in respect of these proceedings. Because of the sensitivity of the matters involved, the names of the parties have been anonymised. The first‑named plaintiff does not oppose the application.
Background to this action
The background and history of this matter relevant to this application are set out by Templeman J in his Honour's reasons in A v City of Swan [No 4] [2009] WASC 155. For convenience, I have included a brief outline of the main action below.
The first‑named plaintiff, Mr A, has been the owner of a property in Gidgegannup (the Property) since 1995. Mr A occupied the Property with the second‑named plaintiff, Ms B, his then wife, from 1995 until their marriage was dissolved in April 2003. Mr A continues to occupy the Property and Ms B currently resides in a remote community in far north Queensland.
The Property is located in a valley and overlooks another property (the Adjoining Property). On 10 February 1999, the defendant, the relevant local government authority, approved a development plan for the proposed development of the Adjoining Property (the Proposed Development). On 18 March 2002, the plaintiffs commenced this action, alleging, in essence, that the approval was unlawful. The plaintiffs also plead that they were denied natural justice and that the defendant is accountable to them by virtue of alleged negligent conduct and breaches of statutory duty said to constitute misfeasance in public office on the part of one of the defendant's officers. In the prayer for relief, the plaintiffs claim:
1.General, aggravated and exemplary damages.
2.A declaration that the City of Swan unlawfully approved [the development plan].
3.Costs.
The claim of misfeasance in public office
The pleaded claim of misfeasance in public office, in par 10 of the statement of claim, is lengthy and somewhat repetitive. It involves, in essence, allegations that the relevant officer:
(a)failed to bring the advice of the Department of Environmental Protection regarding the Proposed Development to the attention of the Council when he was under a duty to do so;
(b)provided the Council with a biased and deficient assessment of the plaintiffs' written submissions regarding the Proposed Development when he was under a duty to provide an unbiased assessment; and
(c)provided the Council with a report regarding the Proposed Development that was not in accordance with the requirements of the relevant town planning scheme, when he was under a duty to provide a report that addressed all of the relevant requirements,
in circumstances where he:
(i)was aware of his duties;
(ii)made a conscious decision not act in accordance with his duties, or was recklessly indifferent thereto; and
(iii)had the intention of injuring the plaintiffs or knew that injury to the plaintiffs was a natural and probable consequence, or was recklessly indifferent to the consequences.
The principles that ground the tort of misfeasance in public office are still developing and their precise limits are yet to be defined by the High Court: Northern Territory of Australia v Mengel[1995] HCA 65; (1995) 185 CLR 307, 345; Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329, 346 [42]; Sanders v Snell (No 2) [2003] FCAFC 150; (2003) 130 FCR 149, 171 ‑ 172 [87]. A detailed exposition of the current state of the law regarding this tort can be found in the judgment of Buss JA (with whom Wheeler and Pullin JJA agreed) in Neilson v City of Swan[2006] WASCA 94 [30] ‑ [77]. Relevantly, in the context of an application to amend the statement of claim in November 2007, Templeman J found that the allegations currently pleaded in par 10 of the statement of claim (summarised above) are sufficient to establish a reasonably arguable case of misfeasance in public office.
The damage said to flow from the alleged tort is pleaded in par 10(3) of the statement of claim which includes, relevantly, a claim that the defendant's alleged misconduct:
(a)contributed to [Ms B's] psychiatric shock and [the officer] was aware of [Ms B's] duress …
Ms B filed a schedule of loss and damage on 24 October 2008 in which, inter alia, a sum of $2,000,000 is sought as 'Compensation for psychiatric shock, grief, pain and suffering caused to [Ms B] as a result of [the officer's] misfeasance, and compensation for the continuing anger felt by [Ms B] about the effects of the misfeasance'.
The defendant's application
The defendant applies to the court, by notice of motion dated 23 October 2009, for a declaration pursuant to O 70 r 1 that '[Ms B] is a person incapable of managing her affairs in respect of the proceedings herein'. Order 70 r 1 provides, relevantly:
1.Definitions
In this Order unless the contrary intention appears ‑
person under disability means -
…
(c)a person … who, by reason of mental illness, defect or infirmity, however occasioned, is declared by the Court to be incapable of managing his affairs in respect of any proceedings to which the declaration relates.
The effect of such a declaration would be to prohibit Ms B from taking further part in these proceedings pending the appointment of a next friend to act on her behalf: O 70 r 2, r 3.
Ms B's capacity to represent herself in these proceedings was first questioned as a result of the provision, by Mr A, of particulars of loss and damage, dated 27 January 2009, in response to a request from the defendant. Attached to the particulars were two medical reports: the first was dated 6 March 2003, was addressed to the Mental Health Review Board, and was signed by one 'Dr Anderton', a senior medical officer employed by the Department of Health at the 'Mills Street Centre'; the second was a discharge summary from the Mills Street Centre, dated 16 April 2003, signed by Dr Anderton and a consultant psychiatrist. It was apparent from the two documents that Ms B had, at some stage, been admitted to the Mills Street Centre.
The letter to the Mental Health Review Board dated 6 March 2003 refers to Ms B's history, including that she appeared 'to have a psychosis over the preceding 5 years, with a recent episode of manic behaviour precipitating this admission'. The report goes on to refer to various matters which Ms B stated had occurred over the previous five and a half years, including her belief at the time that her admission to the Mills Street Centre was part of a political plot/conspiracy. The report concluded that Ms B 'is insightless re her delusions and possible hallucinations, delusions of reference and altered mood', and contained a recommendation that she remain as an involuntary patient.
The discharge summary, dated 16 April 2003, also referred to Ms B's history and reported that, although Ms B remained insightless and believed her admission and containment was part of a political conspiracy, she became more compliant with treatment and was eventually permitted discharge.
The discharge summary stated the diagnosis to be 'schizoaffective disorder', with a differential diagnosis of 'bipolar affective disorder‑manic episode with psychotic features'. The document concluded with the words '[Ms B] will be followed up on the ward and a medical review will eventually be in place at Swan'.
Following a consideration of the two medical reports, and in the absence of any evidence suggesting that Ms B's condition had been reviewed in accordance with the discharge summary from the Mills Street Centre, Templeman J became concerned about Ms B's state of health and the potential impact that it may have on her ability to represent herself in this action. On 9 February 2009, Templeman J's associate sent a letter to Ms B which attached the two medical reports and contained the following passages:
Justice Templeman has asked me to inform you that [the medial reports] raise a concern about your state of health and the impact that might have on the action.
His Honour appreciates that these documents are now six years out of date. However, they are the only materials currently available in relation to this issue. It is not known whether any review has been carried out subsequently.
In order to be satisfied that it is appropriate for you to continue to represent yourself in the action, Justice Templeman would require you to produce a report from a registered medical practitioner of your choice to the effect that you had recovered from the illness referred to in [the medical reports] and that you were now fit to represent yourself in the action.
The medical practitioner concerned would be required to swear an affidavit exhibiting his or her report and exhibiting also [the medical reports].
The medical practitioner should also, if possible, express an opinion about your fitness to participate in, and make decisions at, the mediation which took place on 30 September 2008.
Ms B responded by letter dated 9 March 2009, in which she requested that the matter be 'further debated'. As a result, Templeman J convened a directions hearing on 26 May 2009.
At the directions hearing on 26 May 2009, the defendant sought orders that the action be stayed pending either the production, by Ms B, of a medical report in accordance with Templeman J's associate's letter, or until the court, of its own motion, determined whether a declaration ought to be made about Ms B's mental capacity. His Honour declined to make those orders; his reasons for decision are recorded in A v City of Swan[No 4]. In the reasons, his Honour made the following observations:
33As I have said, the medical evidence of 2003 raised doubts in my mind as to whether Ms B was then suffering from a mental illness, defect or infirmity which, if unresolved, would render her incapable of managing her affairs in relation to this action. The evidence to which I have referred above, and Ms B's responses to my questions at the directions hearing, have not resolved that doubt. However, it is to be noted that the medical opinion was given six years ago: and did not address the matters to which O 70 relates. Further, the second of the medical reports referred to Ms B responding to medication and managing well in the community.
34In my view, these, and no doubt other matters, would need to be explored in some detail before any judgment could be made as to Ms B's present ability to manage her affairs in relation to this action. Clearly, if Ms B continues to be in financially straightened circumstances and continues to live as she is at present, she will have great difficulty in prosecuting the action. However, that is not to say that she lacks the mental capacity to do so.
...
37Ms B is unable or unwilling to provide a further medical report. That is her prerogative. However, for the reasons set out above, it does not follow that the court, of its own motion, should declare that she is a person under a disability.
...
40The result is that if the defendant wishes to have Ms B declared to be a person under a disability, it must make an application. Both Mr A and Ms B would need to be given proper notice of any such application, and to adduce such evidence as they thought fit (emphasis added).
This is the defendant's application.
The hearing
It is appropriate, at this point, to briefly refer to the course of the oral hearing on 26 May 2010, and Ms B's participation in it.
At the hearing, the defendant was represented by its counsel, Mr A represented himself in person, and Ms B also represented herself, although she appeared via telephone‑link from a motel in Queensland. This has been the usual arrangement since approximately 2005. As noted below, it appears that Ms B feels that she has been 'driven out' of Western Australia by 'uninvestigated death threats, callous conduct by police, psychiatric defamation founded upon slander or interested testimony and 'behaving badly' (separated) husband [Mr A] and mother … (who repeatedly trespassed) and 'frame up' by police and family'. Given Ms B's remote location, the only way to communicate with her is via post. The court notifies Ms B of hearing dates by letter, following which she usually books a room at a motel in the nearest town and liaises with the court to arrange for her participation via telephone‑link. The court then telephones her at the place she nominates.
In the early stages of the hearing on 26 May 2010, the telephone‑link with Ms B was severed a number of times; it is not entirely clear whether this was as a result of problems with the connection or whether Ms B was deliberately terminating the calls. I think the likelihood is the latter. In any event, after the connection was re‑established on about the fourth occasion, shortly after the commencement of the oral testimony of the defendant's expert, Ms B made a brief statement and terminated the call. The content of her statement was muffled and difficult to hear, and is not recorded on the transcript. However, Mr A said that Ms B had said words to the effect that she did not have a lawyer present and wished to be excused from the hearing.
The hearing was adjourned for a short time and efforts were made to re‑establish telephone contact with Ms B. However, it was brought to the court's attention by the motel receptionist that Ms B had left the location from which the telephone communication was being facilitated.
I would also note here that, following the examination‑in‑chief of the defendant's expert, Mr A sought to cross‑examine. Counsel for the defendant objected on the basis, in effect, that any cross‑examination by Mr A did not have the potential to assist the court in the resolution of the issues raised in the defendant's application. Upon hearing counsel's objection, I asked Mr A whether he supported or opposed the defendant's application, and Mr A stated that he did not oppose the application. I disallowed the cross‑examination on that basis.
In that context, I now turn to the evidence.
The evidence
At the hearing, counsel for the defendant tendered two affidavits in support of its application. Both were sworn by Ms B Callanan of the solicitors for the defendant, and were dated 23 October 2009 and 30 December 2009 respectively. The affidavits were tendered shortly after the commencement of the hearing, whilst Ms B was still present via telephone‑link. Mr A objected to two one‑page annexures to the 23 October 2009 affidavit. Both annexures were emails, one sent in May 2006 and the other in February 2009, from Ms B's mother in Canada to the defendant, and to the solicitors for the defendant, respectively. I ordered that both annexures, namely annexures 35 and 41, be struck out as inadmissible. No further objection was taken by either of the plaintiffs to the remainder of the evidence.
In addition to the affidavit evidence, the defendant also relies on the opinion evidence of its expert, Dr Lawrence Terace, which I consider below. In addition to his oral testimony, Dr Terace prepared a written report for the purpose of the hearing which forms part of the affidavit evidence.
The defendant's evidence is effectively uncontested, as neither of the plaintiffs sought to put on any evidence in opposition, or in reply, to the evidence adduced by the defendant. Despite Dr Terace being available at the hearing, Ms B did not seek to cross‑examine, and, as I have mentioned, I did not allow Mr A to cross‑examine as he does not oppose the application. The uncontested evidence is as follows.
27 September 2001 - 2 October 2001
On the morning of 27 September 2001, Mr A telephoned the 'Psychiatric Emergency Team' (the PET) - a public psychiatric emergency assessment and advisory service provided by the Department of Health (now known as the 'Mental Health Emergency Response Line'). The PET notes of the conversation record that Mr A stated that Ms B had been behaving strangely over the previous two days, including, inter alia, talking to herself and arranging objects around the house. Mr A said that he was not aware of any past psychiatric history, although the notes indicate that he mentioned a similar episode 18 months prior 'following a stressful confrontation with a neighbour who reportedly threatened her with a gun'. Mr A initially rejected the idea of someone visiting Ms B at home; he said that she will not attend her GP and 'has a general distrust of doctors'. However, upon the insistence of a PET psychiatrist that an urgent assessment of Ms B ought to be undertaken, Mr A eventually agreed to a home visit and a PET psychiatrist attended later that afternoon. Mr A informed the attending psychiatrist that Ms B had had a 'psychotic episode' the previous year.
The attending Psychiatrist's notes include the following:
Behaviour
Dancing to loud music, with bizarre type posturing during dance steps, sprinkling birdseed about property, in her hair etc. On one occasion picking a rose and eating the petals.
…
Thought Content
…
Husband has voiced that [Ms B] has persecutory delusional believes re: neighbour/counsel bugging phone/rooms. This being in context of difficult legal issues over neighbours property.
…
Insight
No current insight into extent of … symptoms, denied voluntary [treatment] options despite explanation of possible process under MHA. …
Formulation
42 yo woman [with] evidence of psychotic type symptoms and elevated mood of a manic nature.
Post psychotic episode last year, which husband stated took 2 months to resolve. However husband reports ongoing persecutory ideas re phone being bugged by neighbour or local council (this being in context of severe stressor of legal issue [with] neighbour, whom they believe has 'mafia‑like' connections). Decline over past 2/52 since terrorist attack in New York, with severe escalation in post 2/7 of hypermanic state.
… Explained current presentation could warrant referral under MHA,
The attending psychiatrist discussed a follow‑up plan with Mr A, including a review the following morning with someone from the Swan Adult Mental Health Centre (the Swan Clinic). Mr A stated that he would prefer to manage Ms B at home, and that he would call if he required assistance.
A consultant from the Swan Clinic attended the following day. The notes made by the consultant on that occasion refer to the home visit by the PET the previous evening, records some of the strange behaviour observed by Mr A, and concludes:
[Ms B's] judgment is fluctuating and she has no insight.
Differential Diagnosis:
1)Brief reactive psychosis
2)[Bipolar Affective Disorder] - Hypomania?
Management:
It was difficult to engage [Ms B] in any plan or even in interview. There are not enough grounds to make her involuntary patient though she is unwell.
The consultant instructed Mr A to call the PET and Ms B's general practitioner if Ms B's behaviour escalated over the following 24 hours.
A follow‑up phone call was made that afternoon from a PET staff member to the Swan Clinic. The notes of the conversation state '[Ms B] is psychotic but [Mr A] is still adamant that he doesn't want [Ms B] in hospital'.
The Swan Clinic records indicate that the next day, 29 September 2001, Mr A collected a supply of medication, namely 'Lorazepam', for Ms B. He advised that Ms B was taking the Lorazepam, but was still refusing to take antipsychotic medication. Mr A telephoned the next day and advised that Ms B was 'doing well' and that she had slept well the previous evening.
The next contact from Mr A was on 2 October 2001. He advised that Ms B was 'back to normal' and that no further intervention was required.
March 2002
The writ in these proceedings was issued on 18 March 2002. Shortly thereafter, the plaintiffs filed an application to have the matter entered into the expedited list which came before Scott J in chambers on 30 April 2002. Both Mr A and Ms B appeared in person. During that hearing, the following exchanges took place:
[MS B]: Your Honour, I was subjected to a direct threat on the occasion that my husband was writing the previous writ for certiorari. This matter was never investigated. Someone pointed a gun at me and fired it off at me. There has never been investigation into this threat. I believe there are matters of - there is a general point of view in the public service about this matter of failure to investigate. ...
...
[MS B]: ... As I said, there has been a great deal of incitement of what I would call racist abuse in the community because of, I believe, the bias. The bias to the entire planning process caused a great deal of incitement of racist harassment against myself, and this matter was never substantively dealt with in my opinion. There's been a great deal of personal abuse and slander, and I do believe this innuendo of personal abuse, slander and racism of certain types is continuing. Because this matter was never investigated in any form - - -
SCOTT J: Just bear with me for a moment on that. Who do you say, [Ms B], is responsible? Who is doing this to you.
[MS B]: The bias on the part of the City of Swan ...
...
[MS B]: ...
I do not know who fired the gun at me. There have been numerous occasions of gunfire in my direction, in my general direction since. ... I feel continually rather threatened on my property or where I'm living at the moment. I feel there's been issues of human rights infractions that were never investigated. I indeed did put forward a complaint to the human rights body.
September 2002
On 8 September 2002, shortly after midnight, the PET received a phone call from Mr A to report that Ms B was behaving in a similar way to when she was last assessed by the PET, and that Mr A was staying in a hotel room. The notes record that Mr A was 'reluctant to discuss [the] situation', that he did not want a PET assessment to be undertaken that night, and that he would return home to re‑evaluate the situation. Mr A advised that Ms B had not taken any medication or had a follow‑up assessment since her previous assessment by the PET in 2001.
The PET contacted the Swan Clinic the following day to report the phone call from Mr A. The Swan Clinic advised that they would await further contact from Mr A due to a 'reluctance to engage with [psychiatric] services to date'.
February 2003
On 11 February 2003, Mr A contacted the PET and advised that Ms B was 'unwell again'. The PET referred Mr A to the Swan Clinic duty officer. Mr A phoned the Swan Clinic and advised that Ms B has a chronic, untreated mental illness and 'is currently psychotic and acting on delusional beliefs'. The officer at the Swan Clinic told Mr A that an expedited assessment of Ms B would be arranged the following day.
A psychiatrist from the Swan Clinic attended the following morning, 12 February 2003. The psychiatrist's notes record Ms B as having a '3‑4 yr [history] of change in behaviour since beginning of legal action/dispute … belief that house is bugged'. The notes refer to the previous assessment of Ms B undertaken by the Swan Clinic in 2001 and note that the diagnosis on that occasion was 'Brief reactive psychosis', with a differential diagnosis of 'Bipolar [disorder]'. The notes record that upon arrival, the psychiatrist 'found [Ms B] agitated, walking down road, flagging down cars demanding they call police, believing family have been persecuting her, her house is bugged'. Due to the risk Ms B's actions posed to herself and others, the psychiatrist called the police and had Ms B transferred to the Mills Street Centre at Bentley Hospital (the Mills Street Centre), for assessment pursuant to the Mental Health Act 1996 (WA) (the Act).
Upon arrival at the Mills Street Centre, Ms B was assessed and an order was made by the examining psychiatrist admitting Ms B as an involuntary patient, pursuant to s 26 of the Act. The bases for the order were expressed to be:
1.Expresses paranoid delusional beliefs about her house being bugged and the government using her thoughts without paying consultancy fees.
2.Grandiose, regressed, entitled.
3.No insight.
4.Refusing treatment, refusing to stay in hospital.
The PET records indicate that Ms B phoned following her admission to the Mills Street Centre, claiming that she had been taken there 'against [her] will for corrupt purposes'.
On 19 February 2003, Ms B wrote a letter addressed to the 'Office of the Chief Psychiatrist' claiming that she was detained by 'improper processes' and explaining how she had been subjected to, inter alia, death threats, harassment, racial slander and invasions of privacy.
Ms B remained at the Mills Street Centre as an involuntary patient for just over one month. A decision was made by the Mental Health Review Board on 7 March 2003 that Ms B remain as an involuntary patient in accordance with the recommendation of Dr Anderton of the Mills Street Centre in his letter to the board dated 6 March 2003 (see [12] above). Ms B was discharged from the Mills Street Centre on 17 March 2003. The notes made during the period of her hospitalisation include the following passages:
12/02/03
Pt was walking down major road, trying to flag down traffic to get them to call the police, ombudsman and Premier Gallop after an altercation [with] her husband and [mother].
...
... [Ms B] believes her home electricity has been tampered with and her home bugged. She believes there is a 'huge conspiracy' involving the government, police and the developer. ...
She claims [the developer] has fired shotguns from the perimeter of her property frequently and once - 3 days ago, fired directly at her. She also accuses him of threatening 'warfare' on her.
...
9/12 ago [Ms B] separated from her husband, ... at this time [Ms B] noted his behaviour had changed and she strongly suspects he works for the government.
Believing her home is bugged [Ms B] talks out loud making complaints to the government. She also a few weeks ago 'put on quite a lot of humour' - comedy/satire shows to parody the govt re: its stance on Iraq, again via the perceived bugs in her home.
...
Insight poor. 'There is nothing wrong with me'.
[Impression]. Psychotic, likely untreated over long term. Paranoid delusions. Manic features also.
[Differential diagnosis] Bipolar Affective Disorder - Schizophrenia.
...
On interview patient spoke at length about 'conspiracies in the West Australian Government in regard to police, council etc'. Also spoke about the fact that 'not only is her house bugged but also her phone which has been escalated since the Iraqi/American issue'.
...
13/02/03
Bringing me into hospital - corruption
5½ yrs - death threats - lights off and gunfire. 1 gun fired at her
...
Very stressful
Grizzley comments
Click clicks - Telephone tapedComments around town
Home bugged
Govt corrupt - called police - failed to act. ...
...
Expects $500,000 settlement for her from High Court ...
Presents as having:
- multiple paranoid delusions
- poor insight
- probable auditory hallucinations (bugged phone)
- possible visual hallucinations (looking at me)
- refuses all treatment, containment....
14/02/03
[Ms B] is requesting a second opinion. She wants a 'Senior consultant who understands that she has been involved in the spiritual exchange and the diplomatic exchange of the war in Iraq'.
...
15/02/03
Patient remains insightless as she believes she is not mentally unwell particularly because her house 'really is bugged' and she is not paranoid at all.
...
16/02/03
Remains almost totally insightless.
...
17/02/03
Longstanding anti-psychiatric feelings.
...
Believes intelligence agency watching her.
...
Insight - Nil.
Judgment - Poor
Firmly believes that her phone has been bugged for the last 5 years. She states she can hear clicking and giggling. She also believes that she is under the protection of Australia's intelligence service. Believes the court case she is involved with is huge and that most of WA senior government officials are aware and involved, especially Dr Gallop, is involved diplomatically and spiritually but [Ms B] would not elaborate - 'I'm not sure who I am allowed to talk to about this'. (emphasis added)
...
Remains insightless and times deluded in conversation.
...
19/02/03
...
Thoughts: Still recounting: Govt corruption; Bugging of caravan/House
Composing lectures to edify the Govt.
...
Insight nil
Judgement Poor
...
Remains insightless.
21/02/03
... remains insightless as to the need for her to remain in hospital.
...
23/02/03
Remains insightless into her illness.
...
24/02/03
...
Trying to manipulate for discharge. Talks about conspiracy … over 5 yrs.
...
...
... Patient continues to query mediation doses and believes that 'her [medication] was to be halved as the Dr has misunderstood her behaviour, believing it to be paranoid when in reality there is nothing wrong with her.
25/02/03
Probable schizoaffective
...
Remains with her conspiracy theory and persecution of herself by various agencies.
[Ms B] was tearful today talking about her recent conspiracies as like being raped and no‑one believes you.
...
26/02/03
States: 'I know the doctors will keep me in here until I change what I am saying!'. Still discussing conspiracy theories to nurses.
...
Veiled threat to stop eating - 'This is all political!'
...
28/02/03
...
Thoughts:
- was 'shot at' day after day after day after day ... 'heavy' gunfire from large gun.
Only happened when caravan door was open as caravan was concealed by bush.
Therefore house and caravan must be bugged.
Saw a man walking up a hill with a gun when he fired at her. Refuses to accept that he may have been shooting at anything other than her.
People in town make 'gestures', 'look at her' in a particular way, say 'things' and decline to do business with her (eg electrical contracting) 'buying animals'.
...
People have been on her property and moved things around. Seen people on property.
...
Thoughts frustrated that we do not 'trust' her; that we do not believe her.
...
Multi delusions of reference - possible audio/visual hallucinations.
...
- ongoing psychosis.
...
Remains insightless into her admission. ...
...
Consultant Psychiatrist [second opinion]
... belief that the government has purloined her 'high level thinking' about environmental issues - she believes that the government ('ask Dr Gallop') gained access to her ideas via listening devices in her caravan. She was 'giving a lecture' as she was aware of the presence of 'the bugs'.
[Ms B's] lack of insight re the presence of illness militating against treatment in a less restrictive environment at present as does the high likelihood that she'll act upon her delusions.
I agree that paranoid schizophrenia is the most likely diagnosis, particularly as she has probably experienced abnormal auditory phenomena (though they may have constituted affect illusions).
Include Delusional Disorder and Schizoaffective disorder (there is a hypomanic flavour to her presentation especially the presence of pressure of speech).
I endorse the current approach to diagnosis.
...
Patient has no insight of her illness, believe that she had been wrongly/mis‑diagnosed by the doctor, very angry with doctor.
...
04/03/03
Probable Schizoaffective Disorder
...
07/03/03
MHRB - ... [Ms B] needs to remain involuntary. Ambivalent re status …
10/03/03
Stayed at property overnight. Seems settled, speech ok.
...
The gunfire is the problem for her.
...
Sense of humour but returns to concerns re harassment.
...
12/03/03
Affect pleasant and appropriate in interaction. Keen, looking for trial leave on Thursday.
13/03/03
Mood: Good
...
Affect: a little irritable, superficially co‑operative, guarded.
...
Insight: Small - does not believe she was ill.
Judgement: Complying to effect discharge.
Form lapses today.
17/03/03
Discharge at 11.00. To see Dr Anderton in 2/52 on ward.
The discharge summary from the Mills Street Centre is dated 16 April 2003, and is referred to in [13] ‑ [14] above (this is one of the documents that was attached to the particulars filed by Mr A on 27 January 2009). The diagnosis was stated to be 'Schizoaffective Disorder', with a differential diagnosis of 'Bipolar Affective Disorder - manic episode with psychotic features'. Under the heading 'follow up', the document stated that Ms B 'would be followed up on the ward and a medical review will eventually be in place at [the Swan Clinic]'.
Ms B was reviewed at the Mills Street Centre on 2 April 2003. The notes made at the consultation record Ms B stating that she had heard gunfire again, and concluded:
Obviously intends to cease meds - implied and by statements. ... Confronted with fact that she will relapse - did not deny this. Warned to wean off, not stop abruptly and to look for signs of illness - insightless!
Still attributing all to harassment. No acceptance of illness.
February 2009 - September 2009
On 5 February 2009, Ms B wrote to the court outlining certain 'evidence' she intends to submit for the purpose of the proceedings. The letter contained, relevantly, the following passages:
f)I intend to submit photocopies of Customs and Immigration stamps as evidence of a '1½' world tour made by plaintiff [B] upon divorce, driven out of WA by uninvestigated death threats, callous conduct by police, psychiatric defamation founded upon slander or interested testimony and 'behaving badly' (separated) husband [Mr A] and mother … (who repeatedly trespassed) and 'frame up' by police and family.
...
h)I intend to submit as evidence of medical malpractice associated with government misconduct, consequent ruination of family relationships and police misconduct an already submitted psychiatric report; said being inaccurate, based upon unreliable testimony and a brief conversation under duress and imposed medication with no - as was requested by plaintiff [B] - legal representation after unlawful apprehension.
i)... no psychiatric drugs nor counselling was ever recommended or required prior to the 'frame up'.
On 9 February 2009, Templeman J's associate wrote to Ms B requesting that she provide a medical report concerning Ms B's fitness to represent herself in this action (see [15] above).
On 15 February 2009, Ms B wrote a letter to the court which she refers to as her 'witness statement'. The handwritten letter is 12 pages in length and includes, relevantly, the following:
b)My then husband proceeded to further review the [development plan] (we had read the draft form of said before purchase of our property). Sometime during this period, 'sporadic' gunshot fire (heavy calibre) erupted. It seemed that said particularly occurred when I exited the caravan, or was 'visible' outdoors. My husband made one call to the police, and over an extended period, I made several.
c)... I was also cautioned to not speak in public and jointly threatened with suit. I complained to the Ombudsman and the local government authority about this … after an extended period during this period, I was afraid to speak candidly and was unable to defend myself from personalist innuendo.
...
e)My husband told me about a threatening conversation over the phone referring to 'war'. I referres [sic] to continuing occasional heavy gunshot fire - the calibre well above normal for fox hunting and shot not at an hour known for kangaroo shooting.
...
g)I hope to be given leave in court to refer to conversations with the ACC which disturbed me.
...
k)My husband and I proceeded on with building while considering taking a planning overturn action in the Supreme Court.
l)We eventually took [action in the Supreme Court], but I begged my husband to withdraw after a slim man in light coloured clothing pointed a gun (probably a rifle) at me around midday and fired. I suffered 'blank out' and an extreme amount of sleep deprivation (amounting to days).
...
o)Starting before the approval, I tried to talk to friends and family (sometimes afraid for my life). As I had been threatened with defamation action I was afraid to speak candidly.
...
q)In reference to point g - ie ACC - I suffered bouts of extreme stress wondering if our one room home was 'bugged'.
...
s)As mentioned in the evidence statement, I was the victim of a 'frame up' involving family and police. Prior to the government unlawful conduct and the ensuing slander and harassment, I never suffered from any serious mental illness. ... While in Gidgegannup, one day, with my husband present, [my mother] bullied me so much that I left on foot (having no licensed car) after turning on to the paved rd, I noted a slow moving curb crawling car. It kept pursuing me, so I 'flagged' ie signalled over a couple of vehicles and asked them to call the police. Instead, I was arrested and brought to a mental health facility, having done no crime and not allowed a lawyer. My estranged husband and my mother spoke to officials and I was drugged and forced to remain. The psychiatrist only ever spoke briefly to me. I assume I was diagnosed on the basis of police and family testimony. ... To 'disappear' the law and make mockery of facts causes grievous harm, but to my knowledge not schizophrenia. False incarceration and deprivation of liberty causes irrevocable harm, especially to someone with little family support.
...
v)... I argue racism against my person, refer to item g) and assert 'secret government meetings'.
On 26 May 2009, the matter came on for directions before Templeman J following the letter from Templeman J's associate to Ms B dated 9 February 2009, and Ms B's reply dated 9 March 2009 (see [15] ‑ [16] above). Ms B appeared via telephone‑link at the hearing and the following exchanges occurred:
[MS B]: ... I allege malpractice, complete and utter malpractice.
...
You see, I almost seem to have to withdraw my testimony of death threats and the like of paranoia because this is indicative of bi-polar disorder, therefore to go to a psychiatrist and get clearance to go to court I would seem to have had to withdraw my testimony substantively which I did not wish to do. I also did not wish to re duplicate the problem because the psychiatrist would not be hearing whether or not the case was unlawful or whether or not I was merely just paranoid and fabricated the whole thing, as some sort of delusion as I understand is indicative of schizophrenia.
The psychiatrist would not be hearing my testimony of what happened or whether or not there was a serious - that I had serious reason to believe there was a serious government unlawfulness and consequent unlawfulness in the community.
...
TEMPLEMAN J: I am concerned about it but what I want to know is - let me ask you again. Where you are at present, do you have access to a general medical practitioner?
...
[MS B]: In circumstances where they might be desperate and click clicks over my telephone and lot of harassment and unpleasantness and guns going off at odd hours - how would the practitioner without hearing the whole case be able to decide whether or not I was paranoid?
... I allege racist bias throughout here - also unreasonable collaboration as the basis of the whole case.
I am concerned that the psychiatrist might collaborate wrongfully for that reason. I feel the matter should go to court. ...
...
[MS B]: I wanted to refer to the fact that almost all forms of violence and unlawfulness cause people psychiatric damage and this would seem to suggest that the victims that have no voice and are excluded from civil proceedings. This is why I objected and I also object because I know there is a lot of collaboration between doctors. I am very concerned that this would be prejudicial. I feel there is quite a lot of collaboration. My mother is medical doctor and they continue dialogue with each other. I am wondering whether or not a psychiatrist could be present in the court of law instead to ascertain whether or not I seem to be at all capable of testifying.
On 3 August 2009, the solicitors for the defendant wrote to Ms B indicating that they would be pursuing an application to have Ms B declared incapable of representing herself in these proceedings. The letter enquired as to whether Ms B would be willing to undergo an assessment by Dr Lawrence Terace (the defendant's expert) as to her mental capacity to represent herself. The defendant offered to pay Ms B's travel and accommodation expenses should she agree to the assessment.
On 19 August 2009, Ms B replied to the solicitors for the defendant by hand-written letter, saying that she considered that it would be unreasonably burdensome for her to attend the consultation. The letter stated that she is low on funds 'due to death threats and the protracted length of civil proceedings', and expressed her concern that the expert would act on behalf of the defendant.
Prior to this hearing, Ms B appeared at one further directions hearing before me on 25 September 2009. Her appearance on that occasion was also via telephone‑link. The following relevant exchanges occurred at that hearing:
MURPHY J: Yes. [Ms B], are you aware that the defendant has talked about bringing an application in connection with your ability to conduct the litigation by yourself or whether there needs to be a next friend appointed?
[MS B]: Yes, I would like to argue that I did indeed contact the psychiatrist who argued that - basically he had been, as I questioned him, hired by the opposition.
...
.[MS B]: So I do not feel he is unbiased. I'm already arguing a case of psychiatric misconduct and use of biased information, so I did not wish to exacerbate that further and I feel that to present prejudicial information from any medical practitioner circumvents the process of the court. …
...
[MS B]: Indeed that I'm a victim of psychiatric corruption already, that one psychiatrist acted on behalf of my estranged husband's testimony which was very biased and that he himself suffers from mental illness and that I was deprived of liberty as a result of this matter and fled the state.
...
MURPHY J: [Ms B], the defendant wants to proceed with this application under what's called order 70 of the rules here and it's an application that they have an entitlement to bring. That application will affect you and you will need to be heard on it. ...
[MS B]: I'm very concerned about this misexercise of psychiatric authority in this case. ...
I'm stupefied by this notion that I should be excluded from arguing in any way that it would be paranoid delusional to consider that my house might have been improperly bugged, given the extraordinary power of the ACC and the possible misexercise by other parties that were financially interested, and I don't know what to say because I'm not a lawyer. However, I feel that you're using - 'you' in the general sense of the community - a psychiatrist to go above the court and are not hearing the full case and that I was requested to bring prejudicial testimony in front of a psychiatric that was biased already rather than being heard - listed in a court and listen to the whole case. ...
... I feel I've been falsely incarcerated and deprived of liberty and I do not wish to set foot in the state actually to avert any further (indistinct) through another psychiatrist acting on behalf of the state.
... there has been substantive failure to investigate by the state, there has been failure to investigate by the police death threats and I'm concerned that the ACC has not investigated, if indeed there's a matter, any matter, of criminology. So there has been total failure to investigate.
... Instead I feel I was incarcerated when indeed I'm a victim of crime and I don't wish to be incarcerated again or subjected to death threats without any protection by the state.
...
[MS B]: ... I hope that if I'm excluded from being able to ask such questions, is it paranoid delusional to assume that the ACC has the power to bug someone's house and did they actually investigate and should they have? I haven't even seen the full act.
These sort of matters and also what they said to me, which I'm not allowed to repeat except in a court of law - I'm not allowed to repeat them in front of a psychiatrist, I understand, otherwise I might be prosecuted, so of course this might indeed again cause a misdiagnosis. I'm not allowed to even repeat what the ACC has told me. (indistinct) a secret organisation and I was told that I might be prosecuted, so this matter belongs in court, in my opinion. So I hope at least I'll be able to testify as to what I'm not allowed to say, what I've been told and why I do not think it's paranoid delusional to think there might have been misexercise of authority or a grievous invasion of privacy to cause planning corruption ...
...
[MS B]: I was looking at numerous analyses on planning and corruption by reputable media at the time and I'm not sure that my concerns are ill‑founded given that. They were reputable types of analysis. It has been known to go on in other countries with houses and whatnot, and telephones have been improperly bugged in cases of corruption, and of course I'm an intellectual so I'm aware of that. I don't know why I would be called a paranoid delusional because I was concerned ...
...
[MS B]: ... psychiatrists are extremely powerful people. They can deprive people of liberty without them having benefit to a lawyer and without them having benefit to a court and then the court is - this sort of argument is used to sway the person permanently from every saying anything really or being able to argue upon their own merits that they were framed up.
...
[MS B]: ... I would like to raise my concern that I feel I've been falsely incarcerated once by a psychiatrist of the state and I'm unable to prosecute through the lack of sufficient amount of money and that also the police failed to assist me with regard to death threats.
In communications with the court, Ms B has emphasised (consistently with her reference in the above exchange to being 'an intellectual') that she has a PhD, and there has been no suggestion to the contrary.
The defendant's expert
The defendant's expert was Dr Lawrence Terace. Dr Terace is a Consultant Psychiatrist with over 20 years experience in clinical psychiatry and the provision of medico-legal services. He is a Fellow of the Royal Australian and New Zealand College of Psychiatrists and is currently a Senior Lecturer in Post-Graduate Psychiatry. Dr Terace appeared to me to be a careful and competent expert witness.
Dr Terace's evidence
In his written report, Dr Terace refers to the letter from Dr Anderton of the Mills Street Centre to the Mental Health Review Board, dated 6 March 2003 (see [12] above), and the likely diagnoses listed in that letter. When asked about the prognosis for a person with such a diagnosis where the condition remains untreated, Dr Terace said:
Untreated and without medications such a condition would relapse and remit, if not become chronic, in other words have a poor prognosis in the absence of treatment, in about 80 to 90 per cent of such patients.
Dr Terace explained that the failure to accept treatment greatly increases the likelihood of relapse. He said that delusions and/or hallucinations that are initially acute and florid can settle and persist chronically, even if they appear to be restrained. Regarding the use of the word 'insightless', Dr Terace explained that, in psychiatric terms, this word is used to describe a patient who does not understand nor accept that they have a psychotic-type psychiatric illness, and who does not understand the function of the medication or its relevance to treatment. He said that insightlessness also increases the risk of further relapse and means that the patient is 'unlikely to procure the services of a psychiatrist or to accept ongoing treatment' (ts 170).
Dr Terace makes particular reference in his written report to excerpts from the transcript of the hearing before me on 25 September 2009 (see [52] above). At the present hearing, counsel asked Dr Terace how Ms B's statements on 25 September 2009 are related to the events of 2003, and how they are relevant to his opinion of Ms B's present mental state. Dr Terace explained that the references in the transcript to 'psychiatric misconduct' and 'corruption' represent an 'overvalued idea'; that is, an idea that can be invalidated upon reasonable reflection. An overvalued idea is not, in itself, a delusion. However, the presence of an overvalued idea increases the likelihood that delusions are present.
A delusion is a 'fixed false belief of conviction that is held with tenacity despite all reasonable reflection' (ts 166). Dr Terace stated that the medical notes from 2003 clearly described delusions of surveillance and conspiracy. He went on to say that were Ms B's delusions in remission, he would have expected her, for example, to refer to them in the past tense, deny their truth, or have forgotten them all together, as is the usual response to treatment. Dr Terace said that the fact that, in the transcript of 25 September 2009, Ms B was still seeking to confirm her delusions as items of fact 'supports the view that the delusions are ongoing in the presence of an untreated psychosis consistent with a psychotic disorder that was untreated or partially treated in the past' (ts 166). Dr Terace concluded that, in his opinion, there is 'inadequate evidence to support that the psychosis has been treated since [2003] or that [Ms B's] mental state has been clear since that time' (ts 170). Further, on page 3 of his written report, and at the hearing, Dr Terace expressed the opinion, in effect, that Ms B remains insightless into her condition.
At the hearing, Dr Terace also explained how delusions that are part of an ongoing psychosis can appear to be concealed or restrained until circumstances of stress bring them to the fore. He said that the stress of litigation would be likely to 'scramble' a person's defences and encourage them to talk of their delusions.
At pars 2 and 3 of his report, Dr Terace expresses, as a conclusion, his view that Ms B does not have the mental capacity to represent herself in these proceedings. That conclusion is said to be 'based on the information provided', which included, inter alia, court documents, transcript, medical reports and correspondence. At the hearing, Dr Terace was asked by counsel how he reached that conclusion. He answered with particular reference to documents he considered to be 'established medical evidence' of at least one 'florid psychosis' at and prior to 2003 that 'related very clearly to the matters at hand'. He said that, in his opinion, the transcript of the hearing before me on 25 September 2009 demonstrates that Ms B's delusions are ongoing and, in effect, that there is no good evidence to suggest that the psychosis has been treated. Dr Terace expressed his concern regarding the 'undue influence' such an untreated psychosis would have on Ms B's ability to reason in relation to this litigation, especially where her delusions directly relate to the matters at hand. He concluded:
[T]he reality may be that ... [Ms B] ... may well appear lucid and articulate on many occasions but may conceal delusions which represent an ongoing psychosis and that ongoing psychosis has too much undue influence on her capacity [to] reason about the defendant if she holds a belief that the defendant is involved in a conspiracy. (ts 70)
I accept Dr Terace's evidence. His report clearly identifies his instructions, the documents that he considered (all of which are in evidence) and what he describes as the provisional nature of his assessment without the benefit of examining Ms B. At the hearing, he also stated his assumptions, including that the documents he has seen represent the full medical record and that there is no available evidence of any further visits by Ms B to, nor of any treatment of her by, a psychiatrist, either as an outpatient or an inpatient. In accepting Dr Terace's evidence, I bear in mind that he has not had the opportunity of assessing Ms B in person, and in formulating his opinions his consideration has been limited to documentation provided by the defendant. However, I would note here again that although Ms B was offered the opportunity to attend an appointment with Dr Terace prior to the hearing, at the defendant's cost, she declined. Also, Ms B did not provide any evidence of treatment since 2003.
The relevant principles
The jurisdiction of the Supreme Court to require a person to be represented by a next friend or guardian ad litem, as the case may be, derives from the inherent obligation of the Crown as 'parens patriae' (parent of the state) to care for those who are unable to care for themselves: Secretary, Department of Health and Community Services (NT) v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218, 258. The parens patriae jurisdiction was historically exercised by the Court of Chancery (see, for example, James LJ in Beall v Smith (1873) LR 9 Ch App 85, 91 ‑ 92), and is now expressly conferred upon the Supreme Court by s 16(1)(d) and s 23 of the Supreme Court Act 1935 (WA). For an overview of the historical origins of the jurisdiction, see Cadwallender v The Public Trustee [2003] WASC 72 [27] ‑ [31] (EM Heenan J).
The power of the court to appoint a representative to act on behalf of a person under a disability is aimed at ensuring that all parties to the action are afforded the protection of the court's processes. In Masterman‑Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511, Kennedy LJ explained:
In the context of litigation, rules as to capacity are designed to ensure that plaintiffs and defendants who would otherwise be at a disadvantage are properly protected, and in some cases that the parties to litigation are not pestered by other parties who should be to some extent restrained [31].
Chadwick LJ also referred to the importance of protecting the parties, and to the importance of ensuring the court's own processes are protected. He said:
The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; and the court is concerned not only to protect its own processes but to provide protection to both parties to litigation which comes before it. A defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend [65].
Chadwick LJ's reference to the protection of the court's own processes is important. If the court proceeds to dispose of a matter in circumstances where there is material before the court that suggests that a party may not have the capacity to handle their own affairs in the litigation, the proceedings become susceptible to challenge on grounds of irregularity: O 2 r 1. If it is later shown that a representative ought to have been appointed, although the proceedings are not thereby nullified, any judgments or orders given in the proceedings may be set aside: O 2 r 2. See, for example, Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51.
It is well‑established that there is a presumption that a person of full age is capable of handling their own affairs. The burden of proof rests upon the party asserting present incapacity: Masterman‑Lister v Brutton & Co [17]; Murphy v Doman [36]; Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd [2009] WASCA 33, [6]. Clear evidence that a person has suffered from some form of mental incapacity for a considerable period in the past is not itself determinative, although such evidence may mean that the burden of proof is more easily discharged: Masterman‑Lister v Brutton & Co [17]. See also the discussion of the application of the 'presumption of continuance' to the existence of mental illnesses in Owners of Strata Plan No 23007 v Cross [2006] FCA 900; (2006) 153 FCR 398 [67] ‑ [73].
The court, when asked to make an order of this nature, must be mindful of the impact the order will have on the civil rights of the individual concerned. Importantly, upon the court requiring the appointment of a representative, the person is denied, by O 70, the right to freely prosecute, defend, compromise or otherwise participate in the litigation in their own name. These are 'important rights, long cherished by English law' that should not be interfered with lightly: Masterman‑Lister v Brutton & Co [17], [27].
Conscious of the necessary impact on the person's civil rights, the court will be reluctant to order the appointment of a representative without medical evidence of incapacity, although there will be instances where the court will be limited to its own observations, for example, where medical evidence is not forthcoming, or where the person's incapacity is so obvious to the court that the judge is of the view that medical evidence is not required: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 91 ALD 258 [27]; Masterman-Lister v Brutton & Co [17], [29]; Murphy v Doman [9], [37]. When put on notice that a person may lack the capacity to manage their own affairs in the litigation, the court will be bound to consider and decide whether the person has the requisite capacity based upon the available evidence: Allregal Enterprises v Carpaolo Nominees [8]; L v Human Rights and Equal Opportunity Commission [33].
Order 70 requires the court to consider whether the relevant person 'by reason of mental illness, defect or infirmity, is … incapable of managing his affairs in respect of [the] proceedings'. The question then becomes, what standard of mental capacity is required at law for a person to be deemed 'capable' of managing their own affairs.
The requisite standard will fluctuate according to the legal character and significance of the relevant transaction. In Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423, the High Court said:
The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation (437).
In the context of O 70, the relevant 'matter or piece of business' is, of course, the proceedings before the court in which the person is involved. The requisite capacity in this context was considered by the Court of Appeal in Masterman‑Lister v Brutton & Co. In that case, the court applied an 'issue‑specific' approach that that focuses on the nature and complexity of the relevant transaction. The court distinguished an inquiry as to whether a person has the requisite capacity to conduct legal proceedings from an inquiry as to whether that person has the capacity to make some other legally effective decision: Kennedy LJ [27]; Chadwick LJ [62], [73].
The members of the court in Masterman‑Lister v Brutton & Co endorsed the approach of Boreham J in White v Fell (Unreported, EWCACiv, 12 November 1987), which concerned an action for damages for personal injury. In that case, Boreham J said:
The expression 'incapable of managing her own affairs and property' must be construed in a common sense way as a whole. It does not call for proof of complete incapacity. On the other hand, it is not enough to prove that the plaintiff is now substantially less capable of managing her own affairs and property than she would have been had the accident not occurred. I have no doubt that the plaintiff is quite incapable of managing unaided a large sum of money such as the sort of sum that would be appropriate compensation for her injuries. That, however, is not conclusive. Few people have the capacity to manage all their affairs unaided … It may be that she would have chosen, and would choose now, not to take advice, but that is not the question. The question is: is she capable of doing so? To have that capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice … Secondly, having identified the problem, it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately … Finally, she needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as she may receive. (emphasis added)
The approach of the Court of Appeal in Masterman‑Lister v Brutton & Co was applied in Australia by Debelle J in Dalle‑Molle v Manos [2004] SASC 102; (2004) 88 SASR 193. In that case, the plaintiff was involved in a motor vehicle accident in which he sustained serious brain damage. Some years later, the plaintiff commenced proceedings, the subject matter of which is irrelevant for present purposes, in which the Public Trustee acted as his next friend. The plaintiff applied to the court to have the Public Trustee removed as his next friend, and to be given liberty to prosecute the action himself. Applying an 'issue‑specific' approach in the context of those proceedings, Debelle J said:
[T]he question whether the person has the capacity to give sufficient instructions must be examined against the facts and the subject matter of the particular litigation and the issues involved in that litigation.
…
The level of understanding of legal proceedings must, I think, be greater than the mental competence to understand in broad terms what is involved in the decision to prosecute, defend or compromise those proceedings. The person must be able to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which of course is but one of the possible outcomes. ...[23], [26].
His Honour refused the plaintiff's application for the removal of the Public Trustee, finding that the plaintiff lacked the capacity to give sufficient instructions and understand the issues involved in the complex legal proceedings. His Honour so found based upon, inter alia, the plaintiff's poor memory, misunderstanding of financial dealings, inability to reason, emotional instability, and the fact that he was easily influenced.
The approach in Masterman‑Lister v Brutton & Co was also adopted by Edmonds J in the Federal Court case of Owners of Strata Plan No 23007 v Cross. In that case, it was necessary to consider whether the relevant person was a 'person under a disability' for the purpose of the Federal Court Rules 1979 (Cth) in order to determine whether she had been properly served. (The definition of a 'person under a disability' in the Federal Court Rules, is, for all intents and purposes, identical to the definition in O 70 r 1.) Edmonds J commented on the appropriateness of an 'issue‑specific' approach, particularly in light of the qualifying words 'in respect of the proceedings' that form part of the definition of 'a person under a disability' under the rules. The learned judge was satisfied that there was sufficient evidence to conclude, on the balance of probabilities, that the relevant person was incapable of handling her affairs in those proceedings at the relevant time. In the course of reaching that conclusion, his Honour held that evidence of admission to hospital as an involuntary patient under the Mental Health Act 1990 (NSW), whilst not being conclusive, 'tends to suggest that [the person] was not capable of communicating with or instructing a solicitor or advisor at that time' [75].
Finally, I would respectfully express my agreement with the comments of Handley JA (Tobias JA agreeing) in Murphy v Doman where his Honour refers to the position regarding self-represented litigants. Handley JA said:
[T]he level of mental capacity required to be a 'competent' litigant in person ... cannot be less than that required to instruct a solicitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation [35].
Disposition of the application
The relevant question for the purpose of this application is whether there is sufficient evidence to enable the inference to be drawn that, as at the date of this hearing, Ms B is incapable of managing her affairs in respect of these proceedings. In deciding whether that inference ought to be drawn, I make the following findings.
First, I am satisfied that in 2003 Ms B was suffering from a psychiatric condition, namely a schizoaffective or bipolar affective disorder with psychotic features, which rendered her incapable, at that time, of handling her own affairs in respect of these proceedings. In my view, Ms B lacked the mental capacity to sufficiently instruct a solicitor in relation to these proceedings. Her apparent inability to divorce the material facts in this case (ie, the circumstances surrounding the approval of the Proposed Development and the conduct said to constitute misfeasance in public office) from her broader delusions of conspiracy involving, inter alia, the defendant, would have militated against an ability objectively to focus upon the relevant issues, and instruct a legal advisor accordingly. Further, in my view, the evidence demonstrates that her comprehension of the issues in, and nature and purpose of, these proceedings was significantly affected by her delusions. Ms B stated that her understanding is that these proceedings are huge, involve most of the Western Australian senior government, and are part of an elaborate conspiracy against her (see [43] above). The importance of this misconception is compounded by the fact that Ms B is an in‑person litigant.
The following matters are relevant to the above conclusion: first, the fact of Ms B's admission as an involuntary patient under the Act; secondly, the consecutive references in the Mills Street Centre medical notes to her complete lack of insight into her condition and to her refusal to accept that she required treatment; thirdly, her delusional state of mind, including probable auditory and visual hallucinations (ie, gunshots and 'click clicks' over the phone) said to be connected with the events the subject of this litigation; fourthly, the opinion of her medical assessors that her judgment was, at that time, 'poor'; fifthly, her belief that she was the victim of a conspiracy, involving many layers of government, including the defendant; and sixthly, her apparent paranoia and difficulty trusting people.
Further, the evidence also indicates that Ms B's illness is likely to have been present for several years prior to 2003. I infer that the services of the PET, or some other mental health service, were not procured prior to late 2001, or during the period after the PET's assessment of Ms B in late 2001 and prior to her admission as an involuntary patient in February 2003, as a result of either or both of Ms B's 'general distrust of Doctors' (see [28] above) and Mr A's desire to care for Ms B at home for fear that, were assistance sought, she would be admitted as an involuntary patient (see [30] ‑ [32], [36] ‑ [37] above).
Secondly, it is likely that Ms B has not continued to take the medication that she was prescribed whilst a patient at the Mills Street Centre, and has not sought further treatment from a mental health specialist since her last contact with the Mills Street Centre on 2 April 2003. In so finding, I rely on Ms B's longstanding reluctance to seek medical attention prior to her admission to the Mills Street Centre as an involuntary patient in 2003; her lack of insight into her condition and refusal to accept that she required medication during her hospitalisation at the Mills Street Centre; her lack of insight and evident intention to cease taking her medication as at 2 April 2003 (her last consultation at the Mills Street Centre); Dr Terace's evidence that lack of insight makes it unlikely that the patient will procure the services of a psychiatrist, and increases the risk of further relapse; and Dr Terace's opinion that there is insufficient evidence to support the conclusion that Ms B's psychosis has been treated since her admission as an involuntary patient.
Thirdly, it is likely that Ms B continues to suffer from the condition with which she was diagnosed whilst at the Mills Street Centre in 2003. I accept Dr Terace's evidence that, in the absence of medication and treatment, such a condition has a poor prognosis and is likely to relapse in 80% ‑ 90% of cases. Further, I accept Dr Terace's evidence that Ms B's statements in the transcript of proceedings before me on 25 September 2009 referring to, inter alia, gunshots, surveillance and conspiracy, are consistent with an ongoing psychosis, and suggest that Ms B remains insightless regarding her condition. In addition to the transcript of 25 September 2009, the evidence referred to in [46] ‑ [51] above would also seem to support that conclusion.
Fourthly, I accept Dr Terace's evidence regarding the potential 'undue influence' of Ms B's ongoing delusions upon her ability to reason and make rational decisions in these proceedings. I accept Dr Terace's evidence that whilst Ms B's symptoms may appear to be restrained and she is able to respond logically to questions put to her, she remains affected by a psychiatric disorder, and that the stresses in this litigation are likely to trigger the symptoms and to continue to bring her delusions, that from time to time appear to be suppressed, to the fore.
In light of the foregoing, I am satisfied that the inference ought to be drawn that Ms B is incapable of managing her own affairs in respect of these proceedings by reason of mental illness, defect or infirmity. Her condition and associated delusions continue to obscure her understanding of the true nature and purpose of these proceedings, and the issues involved, so that she remains presently incapable of sufficiently instructing a solicitor regarding the relevant matters in issue.
The delusions are particularly significant in the context of this litigation; they involve the defendant and the Proposed Development the subject of these proceedings. Moreover, the issues raised in the litigation by Ms B (and Mr A) involve allegations of conscious wrongdoing by the defendant in public office with the intention of injuring the plaintiffs, or with knowledge that injury was a natural and probable consequence, or with reckless indifference in that regard. Thus, the subject matter of the delusions converges with serious allegations of misconduct and impropriety, making it impossible, in my view, for Ms B to bring any sense of perspective or objectivity to the decisions required to be made in the conduct of the litigation. Also, her condition assumes particular significance where she has put her own mental health directly in issue by claiming $2 million for 'psychiatric shock, grief, pain and suffering', whilst at the same time maintaining, it seems, that she does not have, and has never had, a mental illness. As I have mentioned, the difficulties are compounded by the fact that Ms B is self‑represented.
I am cognizant that an order requiring the appointment of a representative is not always without practical difficulties. However, in circumstances where the court is aware that the relevant person is incapable of managing their own affairs, it is bound to follow the procedure in O 70: Murphy v Doman [52].
Conclusion
The defendant's application should be granted and a declaration made pursuant to O 70 r 1.
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