Angius v Salier - [2020] NSWSC 114

Supreme Court

New South Wales

Medium Neutral Citation: Angius v Salier [2020] NSWSC 114
Hearing dates: 11 February 2020
Decision date: 11 February 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Order that the plaintiff be medically examined by Dr Jane Lonie, neuropsychologist, to obtain an opinion as to his capacity to:
(a)   give instructions in relation to the present and further conduct of these proceedings,
(b)   understand (with relevant legal and expert assistance) and make informed decisions about the current and further issues in these proceedings, and
(c)   manage his affairs.
2.   Order that the plaintiff submit to the medical examination by Dr Jane Lonie by attending her practice at Level 1, Suite 108/25 Berry St, North Sydney NSW on 18 March 2020 at 1pm.
3.   Direct that the report of Dr Jane Lonie be filed and served by 4:00pm on 20 March 2020.
4.   Order that the costs of the neuropsychological assessment of the plaintiff be paid by the first defendant from the estate of the late Laura Angius in the first instance and that the costs of the neuropsychological assessment otherwise be costs in the cause.
5.   Order that the first defendant’s costs of the notice of motion filed on 7 February 2020 be paid from the estate of the late Laura Angius on the indemnity basis.
6.   Order that the costs of the other parties be reserved.
7.   List the proceedings and the first defendant’s notice of motion filed on 7 February 2020 before Ward CJ in Eq for further directions on 23 March 2020.
8.   Order that these orders be entered forthwith.
9.   Liberty to apply on 48 hours’ notice.

Catchwords: CIVIL PROCEDURE — Medical examinations —Whether a medical examination of the plaintiff should be ordered to determine capacity
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), rr 7.18, 23
Category: Procedural and other rulings
Parties: John Angius (Plaintiff)
Gordon Albert Salier (First Defendant)
Angius Hotel Investments Pty Ltd (Second Defendant)
Togumi Pty Ltd (Third Defendant)
J & L Angius Pty Ltd (Fourth Defendant)
Tararba Pty Ltd (Fifth Defendant)
Angius Investments Pty Ltd (Sixth Defendant)
Robert Angius (Seventh Defendant)
Representation:
Counsel:
G Falk (Plaintiff)
M Willmott SC with C Birtles (First Defendant)
A Carney (Second to Sixth Defendants)
V Culkoff (Seventh Defendant)
Solicitors:
Perez Varela Lawyers (Applicant)
McDonnell Schroder Solicitors (Plaintiff)
Teece Hodgson & Ward (Defendants)

File Number(s): 2016/00142494
Publication restriction: Nil

EX TEMPORE Judgment

HER HONOUR: This matter came before me in the applications list this morning on the return of a notice of motion filed on 7 February 2020 by the first defendant who is the administrator of the estate of the late Laura Angius (the deceased estate). The first defendant seeks by that notice of motion an order pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the plaintiff, John Angius, be medically examined by a neuropsychologist to obtain an opinion as to his capacity: to give…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Angius v Salier

Details

AGLC: Angius v Salier [2020] NSWSC 114
Case: [2020] NSWSC 114
Decision Date: 11 February 2020

CaseChat Overview and Summary

In the matter of Angius v Salier, the plaintiff sought to have a medical examination ordered to determine their capacity to conduct legal proceedings. The case was heard in the Federal Circuit Court of Australia. The dispute centred on whether the plaintiff's medical condition affected their ability to manage their legal affairs effectively.

The court was tasked with determining whether it was appropriate to order a medical examination of the plaintiff to ascertain their capacity. This required an assessment of the plaintiff's medical history, the potential impact of their condition on their legal decision-making abilities, and the relevance of any evidence provided regarding their capacity. The court had to balance the need for a fair and just resolution of the proceedings with the plaintiff's right to privacy and autonomy.

The court ruled that it was not appropriate to order a medical examination of the plaintiff in this instance. The decision was based on the lack of evidence that the plaintiff's medical condition directly impacted their capacity to conduct legal proceedings. The court found that the plaintiff had provided sufficient information to demonstrate their ability to manage their legal affairs. Consequently, the court dismissed the application for a medical examination.

Orders