Ahmet v Jardine
[2014] VSCA 52
•1 April 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0194
| BARIYOW AHMET | Applicant |
| v | |
| MELISSA JARDINE | Respondent |
---
JUDGES: | WARREN CJ and WHELAN JA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 21 March 2014 |
DATE OF JUDGMENT: | 1 April 2014 |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 52 |
JUDGMENT APPEALED FROM: | Unreported, County Court of Victoria, Judge Kings, 27 November 2013 |
---
PRACTICE AND PROCEDURE – Application for leave to appeal from order appointing litigation guardian – Supreme Court (General Civil Procedure) Rules 2005, Order 15 – Principles relating to appointment of litigation guardian – Whether substantial injustice if leave refused – whether sufficient doubt as to correctness to warrant leave
PRACTICE AND PROCEDURE – Application to admit fresh evidence on appeal from interlocutory application – When fresh evidence will be admitted – Right to cross-examine in interlocutory applications
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T S Monti SC with Mr K McDonald | Flemington & Kensington Community Legal Centre |
| For the Respondent | Mr P J Lawrie | Russell Kennedy Lawyers |
WARREN CJ:
I have had the benefit of reading in draft form the reasons for judgment of Whelan JA. I agree with his Honour, for the reasons that he gives, that the applications should be dismissed.
WHELAN JA:
On 27 November 2013 Judge Kings in the County Court made an order appointing a litigation guardian for the fifth defendant in this proceeding. She gave her reasons orally. Efforts to obtain a transcript or audio recording of the reasons have been unsuccessful, but notes taken by the solicitor for the plaintiff indicate that the judge had said she relied upon reports by a psychologist, Michael Burge, a psychiatrist, Dr Ashok Mishra, and an affidavit by the fifth defendant’s solicitor, Benjamin Lloyd.
By a summons dated 10 December 2013 the applicant, who is the plaintiff in the County Court proceeding, seeks leave to appeal that order. By a further summons dated 14 March 2014 the applicant seeks leave to adduce fresh evidence on that application.
Relevant background
The applicant commenced this proceeding against the State of Victoria and four members or former members of Victoria Police alleging assault and other torts. The relevant incident occurred on 12 October 2004 when police attended the applicant’s flat after being called by a neighbour. The events that evening were the subject of a criminal trial at the conclusion of which the applicant was convicted of unlawful imprisonment, assault, intentionally causing injury, and rape; the victim being a woman who was present in the flat when the police arrived that day.[1]
[1]The circumstances are referred to in a decision of this Court: The Queen v Bariyow Ahmet [2009] VSCA 86.
The application and material before the judge
By a summons dated 9 October 2013 the solicitors for the fifth defendant sought orders dispensing with the requirement for the fifth defendant to provide answers to interrogatories and seeking the appointment of a litigation guardian for the fifth defendant. The judge below did not rule on the application to dispense with the requirement that the fifth defendant answer interrogatories, deferring that application to be determined after the litigation guardian had been appointed.
In an affidavit in support of the application for the appointment of a litigation guardian the fifth defendant’s solicitor, Mr Lloyd, swore that interrogatories had been served in July 2013 and that in the course of attempting to take instructions in relation to the answers he had been advised by the fifth defendant that the process of communicating with his office in relation to the answers and in relation to earlier issues had caused ‘a dramatic worsening in her condition’. Specifically, he was told that a conference between her and a barrister held in June 2013 had led to a worsening of her condition. She said that ‘she could not answer the interrogatories’.
Mr Lloyd exhibited reports and letters he had obtained from the fifth defendant’s treating psychologist (Mr Burge) and her treating psychiatrist (Dr Mishra). Those reports and letters indicate that the fifth defendant is suffering from post-traumatic stress disorder.
In response to specific questions, Mr Burge, in a letter to Mr Lloyd, expressed the following views:
1. Does Melissa Jardine suffer from PTSD?
Yes Melissa suffers from severe chronic PTSD and co-exiting conditions.
2. What are the symptoms of her condition?
Melissa suffers from all PTSD symptoms as outlined in the DSM V. See attached.
3. Are those symptoms constant or do they fluctuate?
These symptoms fluctuate.
4. If the symptoms fluctuate what factors make them fluctuate?
These symptoms may dramatically worsen when Melissa is exposed to intrusive triggers.
5.Do you believe that Melissa Jardine is ‘capable’ of giving instructions in a legal proceeding?
I am of the opinion that Melissa’s conditions, could become more severe through giving instructions. Conversations of the type contained within legal instructions have triggers [sic] severe relapses in the past.
6.If the answer to question 5 is not yes, then what makes you say that Melissa Jardine lacks that capability?
When Melissa is triggered by traumatic material her nervous system is greatly affected, eliciting de-compensation, dissociation, anxiety and spiralling depressive symptoms of a highly concerning nature.
7.Does the giving of evidence (in written or oral form) have the capacity to worsen Melissa Jardine’s patient’s [sic] post traumatic stress disorder or its symptoms?
Yes.
8.If the answer to 7 is yes, can you please explain how that could occur?
By definition of the diagnosis as outlined in DSM V, non therapeutic traumatic reminders and exposure may be experienced as intrusive re traumatisation or perpetration on a neurobiological level.
9.Have you observed or had reported to you, a worsening in Melissa Jardine’s PTSD or its symptoms since approximately 20 June 2013?
Yes.
10.If so, can you specify how those symptoms have worsened?
When engaging in conversations that contain non controllable intrusive traumatic material.
11.In a general sense can the providing of instructions to a lawyer in a legal proceeding lead to a worsening of a patient’s post traumatic stress disorder or any if [sic] of its symptoms?
Yes.
12.Can you explain how that could occur?
Non therapeutic traumatic reminders and exposure may be experienced as intrusive re traumatisation or perpetration on a neurobiological level, especially in severe complex PTSD cases such as Melissa’s.
In a written report, Dr Mishra responded to the same 12 questions as follows:
1. Does Melissa Jardine suffer from PTSD?
Yes.
2. What are the symptoms of her condition?
Anxiety, panic attacks, insomnia, bad dreams, nightmares, flashbacks of traumatic events, crying, inability to cope with stress/pressure etc.
3. Are these symptoms constant or do they fluctuate?
They fluctuate from time to time depending on her exposure to a trigger. However she does have continuous symptoms like anxiety, bad dreams, nightmares, flashbacks, depression, inability to cope with any pressure, social withdrawal, lethargy etc.
4. If these symptoms fluctuate what factors make them fluctuate?
As mentioned, any trigger that reminds her of her traumatic events at work. For example an emergency vehicle siren, news of violence on TV etc trigger acute symptoms.
5.Do you believe that Melissa Jardine is capable of giving instructions in a legal proceedings?
Yes. She has capacity to instruct.
6.If the answer to question 5 is not ‘Yes’ then what makes you say that Melissa Jardine lacks that capability?
She does have capacity to instruct.
7.Does the giving of evidence (in written or oral form) have the capacity to worsen Melissa Jardine’s Post Traumatic Stress Disorder or its symptoms?
Yes. As mentioned any reminder of her past trauma increases her symptoms and she collapses in a heap. This is what happened on 21 June 2013 when she met with her barrister. Afterwards she experienced nightmares of being raped, anxiety, foggy thinking, mood fluctuations, irritability, crying spells, impaired concentration, social withdrawal etc.
8.If the answer to 7 is ‘Yes’ please explain how that could occur?
As mentioned above she reacts severely to her past trauma.
9.Have you observed or had reported to you worsening of Melissa Jardine’s PTSD or its symptoms since approximately 20 June 2013?
Yes as mentioned above she has reported it to me on several occasions and I have observed a deterioration in her overall condition since 21 June 2013.
10. If so can you specify how those symptoms have worsened?
As described above she has deteriorated in her depressive illness as well as her PTSD. Some other stressful events have also triggered extreme anxiety and depression in her. For example she had trouble with her Workcover agent, Gallagher Bassett regarding continuation of coverage for counselling with her psychologist. That too caused a relapse in her overall condition.
11.In a general sense can the providing of instructions to a lawyer in legal proceeding lead to a worsening of a patient’s Post Traumatic Stress Disorder or any of its symptoms?
Yes as mentioned above she deteriorated significantly after meeting with her barrister in June 2013.
12. Can you explain how this could occur?
It is a characteristic of PTSD that any reminder of the traumatic event even by sound, smell, vision, etc or talking about the traumatic events generates tremendous emotional reaction in the person. The severity of such reaction varies from person to person. In Ms Jardine’s case she seems to have a severe Post Traumatic Stress Disorder. For example she has experienced nightmares regarding her work situation over the years. Not only that, she has experienced bad dreams where she finds herself being raped. These are frequent dreams and nightmares along with the host of other symptoms of PTSD like anxiety, panic attacks, flashbacks, depression, crying, agitation, impaired concentration, extreme lethargy, inability to cope with any pressure, social withdrawal, lack of interest, lack of motivation, etc. Any reminder of her traumatic past has produced a severe emotional reaction in her. Overall she seems to be improving in her condition with the help of ongoing treatment. However she remains fairly fragile in terms of coping with any pressure including testifying in writing or orally in regards to her court case.
Mr Lloyd’s affidavit in support of the application included the following:
On 8 October 2013 I spoke to Dr Mishra in relation to his conclusion that the Fifth Defendant was capable of giving instructions in the proceeding. In that conversation he expanded on that conclusion and said that the fifth defendant had the intellectual competence to comprehend what was happening in the litigation and make decisions about it. However, if the giving of instructions involved matters that contain triggers to her traumatic memories recalling those triggers could worsen her condition and lead to an increase in the symptoms suffered by the Fifth Defendant.
The psychological and psychiatric reports state that the fifth defendant’s condition is severe, chronic and unstable; that she has been under treatment since 2008; that she was admitted to hospital for periods in 2011 and 2012; and that she has been treated with high doses of medications and psychotherapy.
Reasons of the judge
As indicated, there is no transcript or audio recording of the judge’s reasons. By reference to the notes taken by the solicitor for the applicant, the judge relied upon the reports of Dr Mishra and Mr Burge, and read out the answers Dr Mishra had given to questions 7 and 8, noting in particular the worsening of symptoms said to have occurred after the conference with the barrister in June 2013. She also relied upon the information contained in Mr Lloyd’s affidavit. She said that she had reached the view that it was appropriate for a litigation guardian to be appointed.
The applicant had opposed the appointment and had also sought to cross-examine the psychiatrist, the psychologist, and the fifth defendant herself. The judge decided the application without permitting any cross-examination.
The fresh evidence
An affidavit filed in support of the summons for leave to adduce fresh evidence exhibited material from social media and various websites which, it is submitted, reveals that the fifth defendant has been actively and extensively engaged in academic and community projects related to law enforcement issues, in particular involving HIV and drug law enforcement, both in Australia and internationally.
Submissions made
In substance, the applicant made two complaints.
The first was that the applicant was denied the opportunity to cross-examine the fifth defendant and the treating practitioners. In oral submissions it was made clear that the material which would have been put to them is the material the subject of the fresh evidence application.
The second complaint was that under the relevant rules (Order 15) a litigation guardian can be appointed only where it is established that the relevant party is ‘incapable’ of managing his or her affairs in relation to the proceeding. It was submitted that the evidence adduced on the application did not establish that the fifth defendant met this criterion. Particular reliance was placed upon what was said to be Dr Mishra’s clear opinion that she did have the capacity to give instructions, and upon what was said to be the lack of a clearly expressed opinion on that issue by Mr Burge. It was submitted that the judge appeared to have erroneously appointed a guardian because of a concern that the fifth defendant might become unable to manage the litigation in the future.
The respondent, who is the fifth defendant, submitted that the applicant had had no right to cross-examine. In oral submissions emphasis was placed upon the fact that the judge had not been told of the material which it is now said would have been put in cross-examination. Although much of the material had been held at that time it was submitted that a decision must have been made, presumably for forensic reasons, not to reveal it. When asked in the course of submissions why the judge had not been told of the material that would be put, senior counsel for the applicant said that this is litigation and that counsel had not wanted to alert the potential cross-examinees to the material.
The respondent submitted that the applicant’s submission mischaracterised the nature of the psychiatric and psychological evidence. It was submitted that the evidence revealed that while the fifth defendant had the intellectual capacity to instruct, to do so would give rise to a debilitating reaction such as had occurred already in June 2013.
The respondent relied upon the fact that the judge’s decision was discretionary, and that the order was interlocutory. It was submitted that even if there were doubt as to the correctness of the decision, the applicant had wholly failed to identify any injustice as a consequence of it.
When pressed to identify the injustice which would result if leave to appeal were refused, senior counsel for the applicant identified two matters. First, if it transpired that the respondent did not give evidence at the trial the fact that she had a litigation guardian would lend credibility to, or may even constitute, an explanation for her absence, which would lessen the impact of a submission based on Jones v Dunkel.[2] Secondly, there was concern that if a guardian were appointed interrogatories would not be answered.
[2](1959) 101 CLR 298.
The respondent submitted that the mere appointment of a litigation guardian was unlikely to be seen as an adequate explanation for a failure to call the respondent and that some evidence would ‘most likely’ be required.
Relevant principles – leave to appeal, fresh evidence, cross-examination
Leave to appeal from an interlocutory decision will be granted only where the decision is attended with sufficient doubt to warrant it being reconsidered and where substantial injustice would result if leave were refused supposing the decision to be wrong.[3]
[3]Niemann v Electronic Industries Ltd [1978] VR 431, 441–2.
Leave to rely on fresh evidence on an appeal in an interlocutory application is not subject to the same restrictions as apply when leave is sought to rely on fresh evidence after a trial; the Court has a general discretion whether to admit the fresh evidence.[4]
[4]Total Gas Care Pty Ltd v Barry Bros Specialised Services Pty Ltd [2012] VSCA 303, [16]–[19].
There is no right to cross-examine on an interlocutory application in Victoria – it is in the discretion of the Court to allow it having regard to the nature of the application and the facts of the case.[5]
[5]The relevant rules and authorities were reviewed by Derham AsJ in Matthews v SPI Electricity Pty Ltd & Ors (No 6) [2013] VSC 422, [23]–[29] (addressing the discretion to cross-examine deponents to affidavits).
Relevant principles – appointment of a litigation guardian
Under Rule 15.03 the Court may appoint a litigation guardian of a ‘person under disability’. Rule 15.01 defines a person under disability as a minor or handicapped person. A handicapped person is defined as follows:
A handicapped person means a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the proceeding …
The dispute that has arisen here is unusual. Typically, where disputes arise in relation to the appointment of a litigation guardian, the dispute is between the party for whom the guardian is to be appointed and those seeking the appointment.[6] For that reason, the focus of attention is usually upon the party’s capacity to understand the relevant issues, to give instructions and to conduct themselves in a way which is consistent with the proper administration of justice. In that context applications are often made ex parte; indeed, they can even be made in the absence of the party for whom a guardian is sought.[7] Other parties to the litigation might be affected by the application and might have legitimate submissions to make.[8] Often, however, they have no relevant interest in the application.[9]
[6]See: L v Human Rights and Equal Opportunity Commission (‘L v HREOC’) [2006] FCAFC 114; Slaveski v Victoria (‘Slaveski’) (2009) 25 VR 160, [75]–[86]; and Pistorino v Connell (‘Pistorino’) [2012] VSC 438.
[7]As was the case in Pistorino [2012] VSC 438.
[8]As was the case in Slaveski (2009) 25 VR 160.
[9]See Pistorino [2012] VSC 438, [10].
The origin of the jurisdiction is in the need to protect the mentally infirm.[10]
[10]See L v HREOC [2006] FCAFC 114, [23]–[27].
Medical, psychological or psychiatric evidence will usually be important, but the final decision rests with the Court, not with the doctors, the lawyers, or the parties.[11]
[11]Goddard Elliott v Fritsch [2012] VSC 87, [562].
The application to rely on fresh evidence
In my view the application to rely on fresh evidence should be refused.
A substantial amount of the material was held at the time of the application before the judge in the County Court. The explanation given for not relying upon it then was so as not to alert the potential cross-examinees to it. A forensic decision was made not to exhibit the material or tell the judge of its existence. The applicant should not now be permitted to resile from that position. Further, even if the material were admitted, it is impossible to assess its significance. There is no expert evidence explaining its significance. Mere assertions as to its effect, or possible effect, on the expert opinions do not relevantly advance the position.
The material is also relied upon by the applicant in a different way. The material constitutes what would have been put to the respondent and the experts if cross-examination had been permitted. The material is relied upon to demonstrate that there were matters of potential significance which could have been put in cross-examination. I have had regard to it in that context.
The application for leave to appeal
In my opinion leave to appeal should be refused.
First, the applicant has failed to demonstrate that substantial injustice will result if leave is refused supposing the order to be wrong. Neither of the two concerns raised are cogent.
As to the concern that the interrogatories will not be answered, an application on the respondent’s behalf to ‘dispense’ with the requirement that she answer has not been ruled upon. The importance of the respondent answering personally was stressed by senior counsel for the applicant in the course of argument but it was not explained why that was so. She has already given sworn evidence about the events a number of times. In any event, if there are cogent reasons why she should be made to answer personally, they can be put to the judge when that issue is determined.
As to the concern about Jones v Dunkel, there will be no inhibition on the applicant’s ability to make submissions if the respondent does not give evidence, or to challenge any evidence given to explain her absence.
I would refuse leave on this ground.
Further, in my view there is insufficient doubt as to the correctness of the decision to warrant the granting of leave.
The direct answers given by Mr Burge and Dr Mishra, when read as a whole, are capable of supporting her Honour’s conclusion. Dr Mishra does say the respondent has the capacity to instruct, but he says so in the context that:
(a) she has a severe, chronic, unstable mental infirmity;
(b) she has been under treatment for that condition since 2008 and remains under treatment;
(c) her condition required hospitalisation in 2011 and 2012;
(d) certain ‘triggers’ lead to a deterioration in her condition;
(e) giving instructions in a legal case of this kind is, or potentially is, such a ‘trigger’;
(f) giving instructions in this proceeding caused such a deterioration in June 2013; and
(g) Dr Mishra has clarified his opinion as to capacity by saying that she could instruct but if that acted as a ‘trigger’ her condition could worsen.
Her Honour referred to the reports of Dr Mishra and Mr Burge, and she read out Dr Mishra’s answers to questions 7 and 8, before also referring to Mr Lloyd’s affidavit. I think it clear that her Honour accepted both that involvement in the proceeding had the capacity to severely worsen the respondent’s condition (answers to 7 and 8), and that that had already occurred as a result of a meeting with a barrister in June 2013 (answer to 8). The reliance on Mr Lloyd’s affidavit incorporates the explanatory discussion he had with Dr Mishra which I have quoted above.
In those circumstances her Honour’s conclusion that it was appropriate to appoint a guardian was open. It was open to conclude that a person who cannot give instructions in relation to a proceeding without subjecting herself to an appreciable risk of a severe worsening in a chronic mental illness, where such a deterioration has already occurred, is incapable of managing her affairs in relation to that proceeding. No relevant error has been demonstrated, or can be inferred, from that conclusion.[12]
[12]House v The King (1936) 55 CLR 499, 505.
It is impossible to know whether the application would have proceeded differently if the applicant had been prepared to reveal the material that his counsel wished to put to the respondent and the practitioners. In submissions before us senior counsel said the judge was told that the applicant wished to challenge the opinions expressed. The notes of the hearing reveal that is so. But the judge was not told anything of the material now said to constitute what would have been put in cross-examination. I cannot see any error in the course the judge took given what she was told. The applicant made a forensic decision not to reveal the material. He cannot now complain that the judge proceeded as she did when the material said to be significant was kept secret from her.
Conclusion
In my view both summonses should be dismissed.
Finally, it is unsatisfactory that there is no official record in any form of the judge’s reasons for an order of this kind. The applicant’s solicitors were put to considerable trouble in endeavouring to obtain some record of the reasons. In the absence of the applicant’s solicitor’s notes this Court would have had no means of knowing what the reasons for the order were.[13] That is not satisfactory in relation to an order of this kind.
[13]It seems counsel did not make notes of the reasons. As to counsel’s duty in that respect, see Hills v Sklivas [1995] 1 VR 599, 600–1.
- - -
2
7
0