Atkins & Anor v Atkins & Ors - [2011] SASC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ATKINS & ANOR v ATKINS & ORS
[2011] SASC 85
Reasons of Judge Lunn a Master of the Supreme Court
18 May 2011
PROCEDURE
Party under disability - plaintiff seeking a litigation guardian to be appointed for a defendant - held correct procedure was for plaintiff to apply for an inquiry by a Master as to whether the defendant was a person under disability for the purposes of the action.

ATKINS & ANOR v ATKINS & ORS
[2011] SASC 85
JUDGE LUNN:
Reasons on plaintiffs’ application for the appointment of a litigation guardian for the second defendant and a medical examination of her

This is a claim for provision by two of the adult children of Eric Atkins deceased pursuant to the Inheritance (Family Provision) Act 1972. The second defendant is also a child of the deceased and the third to fifth defendants are children of the second defendant.[1] The plaintiffs apparently did not serve the Summons on the second defendant pursuant to 6R 63 on the basis that she was then a person under disability. She has filed a Notice of Acting in Person.
[1] The first defendant is also the first plaintiff, but is named as a defendant because he is an executor of the estate.
The plaintiffs now have concerns about whether the second defendant is for the purpose of this action a “person under disability” as defined in 6R 4. This is a matter of some consequence because if she is a person under disability it would mean that any settlement of the action, and possibly any judgment after a trial, would not be binding on her.[2]
[2] Degroot Family Provision Australia 2^nd Edition, paragraph 6.28.
The plaintiffs are in possession of a medical certificate dated 13 May 2009 from the General Practitioner of the second defendant, who said that she suffered from schizophrenia, but its terms were consistent with her then not being a person under disability. The final paragraph of the certificate read:
Should the situation change and there is a relapse of her medical problem to a state when she is unable to make any decision then of course the matter will need to be reviewed.
Whether a party is a person under disability for the purpose of the Rules also depends upon the nature of the proceedings and the degree of the party’s involvement in them.[3] That issue is not addressed in the medical certificate.
[3] Dalle-Molle v Manos (2004) 88 SASR 193.
This action was commenced on 21 December 2009. There have been a number of directions hearings, but as yet the matter is not ready for trial. The second defendant has attended at some of those hearings but not others. She lives near Wallaroo.
On 5 April 2011 the plaintiffs took out an application (FDN21) seeking orders, inter alia, that the Court appoint a litigation guardian for the second defendant, that she disclose her medical records, that she submit to medical examinations arranged by the plaintiffs and various consequential orders. The second defendant has not attended on the hearing of this application.
The plaintiffs’ counsel based his submissions on the disclosure of the medical reports and the medical examinations of the second defendant being justified because they went to issues raised by the second defendant in her answering affidavit for her need of future care and accommodation. However, he also pursued the applications on the basis that they would provide the evidence which the plaintiffs need to establish that it is proper to appoint a litigation guardian for the second defendant. It is not proper now to deal with the application insofar as it relates to the substantive issues in the action as if the second defendant is a person under disability, it is then necessary for a litigation guardian to be appointed on her behalf to protect her interests about such matters.
It has been surprisingly difficult for counsel for the plaintiffs, and myself, to find any guidance in the textbooks or the reported cases about how a party who considers that another party might be a person under disability goes about obtaining the necessary medical evidence to prove it. Presumably the situation has arisen previously. The plaintiffs’ counsel relied upon a number of authorities about the inherent power of the Court in its parens patriae jurisdiction to protect persons who did not have full capacity, but none of those authorities seem to address directly the question which has arisen in this action.
I consider that the correct procedure is that laid down in Atkin’s Court Forms Second Edition Volume 26, 1992 Issue at page 14 where it is stated:
Where it is unclear whether a party to litigation is a mental patient the court may, on application by the other party, by the party himself or by a person acting as next friend or guardian ad litem for the purpose of this application alone, order an inquiry to be made in the proceedings to determine whether he is in fact a patient within the meaning of RSC Order 80 and accordingly requires the appointment of a next friend or guardian ad litem if proceedings are to be continued. This inquiry is normally heard before the master who can compel the attendance of witnesses (including medical attendants and the plaintiff or defendant himself) and the production of documents.
[Citations of authority omitted][4]
A subsequent paragraph in that Edition of Atkins also states that the Court can direct the Official Solicitor to inquire into whether a party to litigation is the equivalent of a person under disability and report to the Court. However, there is no equivalent at the present time in this State of such an Official Solicitor and so that option is not open in this matter.
[4] This passage does not appear in the current edition of Atkins Court Forms, apparently because of a change in the legislation in England. However, the Rules and inherent jurisdiction on which it appears to be based seem to be generally equivalent to those now applicable in this State.
I consider that the course which should be adopted in this matter is that if the plaintiffs wish to ensure that the second defendant will be bound by any judgment or settlement they should apply for an inquiry by a Master of the Court as to whether the defendant is a person under disability for the purposes of this action.[5] If the Court makes the order for the inquiry, directions will then be given about how the inquiry is to proceed, which may include directions about disclosure of documents and medical examinations.
[5] It is for the plaintiffs to decide whether to take this step, as if the second defendant is found not to be a person under disability there could be adverse costs orders made against the plaintiffs on the application.
I express no opinion at present about whether any such inquiry would proceed under 6R 251 or under the inherent jurisdiction of the Court. An inquiry under 6R 251 would appear to be limited to matters “relevant to a question in issue in an action”. Whether that is the case here is unclear. If 6R 251 is not applicable, then the scope of any inquiry presumably will be determined by the inherent jurisdiction of the Court.
In the course of his submissions counsel for the plaintiffs sought to draw some adverse inference against the second defendant from her failure to attend on various directions hearings. At a directions hearing at which she did attend she complained to me about having to have travelled from Wallaroo to be present at the hearing. I told her that it was her decision whether she attended on directions hearings or not, but that, if she did not attend, directions for the management of the action would be made without hearing what she had to say about them. I interpret her subsequent failures to attend to be in response to what I said and not to be any abandonment by her of her defence of the action.
Counsel for the plaintiffs invited me of my own motion to make an order for the appointment of a litigation guardian for the second defendant based on what I had seen of her behaviour on various directions hearings. The medical certificate referred to above is consistent with her having had proper capacity at some earlier stage in the action. Her behaviour before me was not such that it made it beyond argument that she is a person under disability. I decline to make any such order at this point in the action.
I have today made the following orders:
1Liberty to the plaintiffs to make any application for an inquiry as to whether the second defendant is a person under disability for the purposes of this action, returnable for the adjourned hearing date provided it is issued by 3 June 2011.
2FDN21 is adjourned to a date to be fixed.
3Directions hearing adjourned to Thursday 9 June 2011 at 11.50am.