Daniel Henry Resler Walton by his Tutor John Mann v Terence George Hartmann as Executor of the Estate of Wanda Resler

[2020] NSWSC 1628

Supreme Court

New South Wales

Medium Neutral Citation:

Daniel Henry Resler Walton by his Tutor John Mann v Terence George Hartmann as Executor of the Estate of Wanda Resler [2020] NSWSC 1628

Hearing dates:

4 November 2020

Date of orders:

16 November 2020

Decision date:

04 November 2020

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

The Court Orders:

1 That paragraphs 5 and 6 of Mr Walton’s Notice of Motion dated 2 November 2020 be dismissed.

Catchwords:

CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors — Whether tutor should be removed and declaration made that the plaintiff is capable of giving instructions in the proceedings

Cases Cited:

Daniel Walton v Terence George Hartmann as executor of the Estate of Wanda Resler [2017] NSWSC 1432

David Resler Walton by his tutor John Mann v Terence Hartman as executor of the estate of Wanda Resler [2019] NSWSC 1749

Category:

Procedural and other rulings

Parties:

D Walton by his tutor John Mann
T Hartmann

Representation:

Counsel:
D Walton (self represented with McKenzie Friend P Thorsby)
L Ellison SC, D Liebhold (tutor)
J Brown (defendant)

Solicitors:
T Goldberg, Turner Freeman (tutor)

File Number(s):

2016/98010
2016/318514

judgment- ex tempore

1. Before me today is a notice of motion dated 2 November 2020 brought by Mr Daniel Henry Resler Walton purporting to act as plaintiff on the motion.

2. There are 14 items claimed in the motion by way of orders or effectively declarations. The two most significant in my view which I will deal with separately are orders five and six. Order five seeks that the current tutor who is acting on behalf of Mr Walton be removed. Order six seeks that the plaintiff be declared capable of giving instructions in various proceedings which are identified by matter number.

3. The motion has been from time to time before me and adjourned for various reasons. I have sought through the bar pro bono scheme to obtain legal assistance for Mr Walton, without success. I am not aware of precisely what has happened but he appears today with a Mr Paul Thorsby as his McKenzie friend.

4. The materials before the Court are numerous but the main affidavit he relies upon is his own of 1 November 2020 to which is annexed a number of other documents which I shall come to in a moment.

5. There is also before the Court an affidavit of Mr Walton's of 30 October 2020 which explains a delay and various other matters perhaps of a more procedural nature.

6. There is some history to the matter which I must briefly set out before I come to determine the motion.

7. The matter first came before me in 2017. Mr Walton had commenced proceedings against the defendant in 2016 by way of statement of claim. The principal relief sought was probate in addition to other matters which are set out in my judgment at paragraph five and following (see Daniel Walton v Terence George Hartmann as executor of the Estate of Wanda Resler [2017] NSWSC 1432).

8. The proceedings however became an application in the end for the appointment of a tutor, and the proceedings then dealt exclusively in effect with that subject matter.

9. In that judgment I took the view by reason of the material that was before me that although Mr Walton had capacity initially to commence the proceedings his condition, medically had deteriorated to such an extent that he was no longer capable of conducting the litigation. I stayed the proceedings pending the appointment of a tutor. That final conclusion is to be found in para 77 of my judgment.

10. Subsequently however the matter came back before me in November 2019 by way of a notice of motion of 31 May 2019. Mr Salvatore Russo, a solicitor who is or was a long term friend of Mr Walton's, brought or sought leave to bring an application to remove Mr Mann as tutor.

11. Two questions arose in the proceedings. The first was whether Mr Russo had the status or locus standi to do so; and then secondly, whether I should make that order.

12. Those proceedings were brought to an end during the course of certain evidence (see David Resler Walton by his tutor John Mann v Terence Hartman as executor of the estate of Wanda Resler [2019] NSWSC 1749 at [12]). Mr Russo sought an adjournment and the application for the removal of Mr Mann was no longer pressed. I then made an order in relation to certain costs (see [41]).

13. The materials which Mr Walton relies upon are almost exclusively, except perhaps for one annexure to his affidavit of 1 November, historical. In other words, they are materials which had previously been before the Court, and in most cases, before the Court prior to my judgment in 2017. I should, however, just briefly refer to those materials.

14. Annexed to his affidavit are some letters from Mr Hartmann. There are some emails, but none of which in my view need to be set out in detail. There is an affidavit of Mr Russo of 4 September 2017, and an affidavit of a Dr Mastroianni of August 2017, and some other materials.

15. There is a document dated 22 April 2020 from a Dr Sim Gulati who is the psychiatry registrar at the Ryde Community Mental Health Centre.

16. Dr Gulati indicates in his letter of 22 April 2020, many months ago, that Mr Walton had engaged the services of that clinic or that health service since 9 May 2019. He has been allocated a case manager who engages with him on a regular basis, as well as a number of persons who are clearly psychiatrists and identified as such. As of 22 April this year, it was noted that his mental state had remained stable over six months, with no acute concerns, and he had been compliant with his medications.

17. Importantly however the penultimate paragraph of the letter states that Mr Walton requested a capacity assessment to be done. However that service is unavailable, apparently, and he was advised to get the assessment done in the private sector. Mr Walton indicated that he had attempted to do so, but he was not able to do so due to financial constraints.

18. The position today however, the matter having been adjourned on a number of occasions, is that the state of the evidence before me, and most importantly, the state of the medical evidence, does not in my view support any finding which I could comfortably make in Mr Walton's interest, most importantly, that he is currently capable of giving instruction and taking advice from any person.

19. The mere fact that he has been stable without any acute episodes, and that he has been compliant in taking his medication, is it seems to me quite a long way away from a proper assessment to be made of whether or not he is capable of either giving instructions, taking advice, or alternatively, making decisions in his own interest.

20. It seems to me therefore that, on the state of the evidence before me today, I would dismiss the application for the removal of the tutor, and I cannot, on the balance of the evidence before me today, make any declaration that Mr Walton is capable of giving instructions in any proceedings, and certainly in the two proceedings that are nominated in his notice of motion (2016/318514 and 2016/98010).

21. Also before the Court today is an application that I approve a settlement. I am not going to deal with that today because I am going to give Mr Walton at least an opportunity if he wishes to seek some advice.

22. I will distribute these reasons to all of the parties and I will bring the matter back before me in the next week or two.

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