Angliss v Urquhart - [2001] NSWCA 441

CITATION: ANGLISS v URQUHART [2001] NSWCA 441

FILE NUMBER(S): CA 40873/01

HEARING DATE(S): 19 November 2001

JUDGMENT DATE:
30 November 2001

PARTIES :

William Arthur Angliss - Claimant
Alison Mary Urquhart and Andrew Roderick Urquhart - Opponents

JUDGMENT OF: Sheller JA at 1; Beazley JA at 24; Stein JA at 25

LOWER COURT JURISDICTION : Supreme Court - Equity Division

LOWER COURT
FILE NUMBER(S) : 2648/01

LOWER COURT
JUDICIAL OFFICER : Windeyer J and Barrett J

COUNSEL: S D Rares SC/M A Gilmour - Claimant
R S Angyal - Opponents

SOLICITORS: Deacons - Claimant
Whittens - Opponents

CATCHWORDS: PRACTICE AND PROCEDURE - order under Part 25 Rule 5 of Supreme Court Rules - whether a medical examination can be ordered - where evidence is sought for purpose of challenging the testamentary and legal capacity of the person examined - exercise of discretion set aside

LEGISLATION CITED: Guardianship Act 1987

CASES CITED:
Cox v The State of Queensland [2000] QSC 220
Prescott v Bulldog Tools Limited [1981] 2 All ER 869
In re the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318

DECISION: 1 Leave to appeal granted; 2 Appeal upheld; 3 Vacate the order made on 16 October 2001 by Barrett J; 4 The opponents to pay the costs of the application for leave to appeal and the appeal

CA 40873/01
ED 2648/01

SHELLER JA
BEAZLEY JA
STEIN JA

Friday, 30 November 2001

ANGLISS v URQUHART

The claimant sought leave to appeal from a decision ordering him to attend for a medical examination. A 91 year old man, he had been joined as a defendant to proceedings begun by the opponents, his grandchildren, who had been the beneficiaries under a will drawn up by him in 1997. One of the grandchildren had also been appointed as an enduring guardian. During 2001, the claimant changed his will and revoked the earlier appointment as guardian, appointing one of his daughters as his enduring guardian. The opponents began proceedings to set aside the 2001 documents on the basis that the claimant lacked legal and testamentary capacity. In order to demonstrate this, they sought to have the claimant examined by a doctor of their choice.

Windeyer J made an order under Part 25, Rule 5 of the Supreme Court Rules that the claimant attend a particular doctor on 16 August 2001. On the night before and during the day of 16 August, the claimant vomited and appeared stressed. A doctor at an emergency centre considered that it was possible the claimant had suffered a transient ischaemic attack. On 16 October 2001, the claimant sought to have the order to attend for a medical examination vacated. Barrett J varied this order to state that the claimant attend a different doctor.
Held: (per Sheller JA, Beazley JA and Stein JA agreeing):

1. Barrett JA misunderstood the evidence if he considered that the claimant was only opposed to being examined by the particular doctor, on the basis that this doctor had already formed the…

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.

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Details

Case: [2001] NSWCA 441
Decision Date: 30 November 2001

CaseChat Overview and Summary

The appeal in *Angliss v Urquhart* concerned an order made by Barrett J under Part 25 Rule 5 of the Supreme Court Rules, which sought to compel a medical examination of a party. The dispute arose in circumstances where the evidence obtained from this examination was intended to challenge the testamentary and legal capacity of the person to be examined. The parties involved were Angliss (the applicant for the order) and Urquhart (the respondent, who was the subject of the proposed examination).

The central legal issue before the Court of Appeal was whether the Supreme Court had the power to order a medical examination under Part 25 Rule 5 for the purpose of challenging a party's testamentary and legal capacity. This involved considering the scope and application of the rule, particularly in the context of proceedings where such capacity was in dispute, and whether the exercise of discretion by the primary judge in ordering the examination was appropriate.

The Court of Appeal, comprising Sheller, Beazley and Stein JJA, determined that the order for a medical examination was not authorised by Part 25 Rule 5 in these circumstances. The Court reasoned that the rule was not intended to facilitate the obtaining of evidence to challenge a party's fundamental legal and testamentary capacity. Consequently, the discretion exercised by Barrett J in making the order was set aside.

Leave to appeal was granted, and the appeal was upheld. The order made by Barrett J on 16 October 2001 was vacated, and the opponents were ordered to pay the costs of both the application for leave to appeal and the appeal itself.

Orders

Orders of the court

1 Leave to appeal granted; 2 Appeal upheld; 3 Vacate the order made on 16 October 2001 by Barrett J; 4 The opponents to pay the costs of the application for leave to appeal and the appeal

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	ANGLISS v URQUHART [2001] NSWCA 441
FILE NUMBER(S):	CA 40873/01
HEARING DATE(S):	19 November 2001
JUDGMENT DATE:	30 November 2001
PARTIES :	William Arthur Angliss - Claimant Alison Mary Urquhart and Andrew Roderick Urquhart - Opponents
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 24; Stein JA at 25

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	2648/01
LOWER COURT JUDICIAL OFFICER :	Windeyer J and Barrett J

COUNSEL:	S D Rares SC/M A Gilmour - Claimant R S Angyal - Opponents
SOLICITORS:	Deacons - Claimant Whittens - Opponents
CATCHWORDS:	PRACTICE AND PROCEDURE - order under Part 25 Rule 5 of Supreme Court Rules - whether a medical examination can be ordered - where evidence is sought for purpose of challenging the testamentary and legal capacity of the person examined - exercise of discretion set aside
LEGISLATION CITED:	Guardianship Act 1987
CASES CITED:	Cox v The State of Queensland [2000] QSC 220 Prescott v Bulldog Tools Limited [1981] 2 All ER 869 In re the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318
DECISION:	1 Leave to appeal granted; 2 Appeal upheld; 3 Vacate the order made on 16 October 2001 by Barrett J; 4 The opponents to pay the costs of the application for leave to appeal and the appeal