Hollidge v Pomeroy - [2014] SASC 45

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
HOLLIDGE v POMEROY & ORS
[2014] SASC 45
Reasons of Judge Withers a Master of the Supreme Court
31 March 2014
PROCEDURE
LITIGATION GUARDIAN - PERSON UNDER DISABILITY
Supreme Court Civil Rules 2006 (SA) rr 4, 78, 79, referred to.
Atkins & Anor v Atkins & Ors [2011] SASC 85; Slaveski v State of Victoria & Ors [2009] VSC 596, applied.
Dalle-Molle v Manos (2004) 88 SASR 193; [2004] SASC 102; Murphy v Doman [2003] NSWCA 249; Lunn, Civil Procedure South Australia [6R 4]; [6R 78], considered.

HOLLIDGE v POMEROY & ORS
[2014] SASC 45

JUDGE WITHERS. This Probate action was commenced by the plaintiff filing a summons and statement of claim on 8 November 2011. In those pleadings the plaintiff claimed to be entitled to bring the action as executor of the will of Valentine Henry Underhill-Pomeroy, who died on 25 January 2011. That will was executed on 10 August 2010. The plaintiff sought orders that the Court pronounce for the validity of the will in solemn form.
The plaintiff pleaded that the first defendant had entered a caveat on 27 May 2011 in the Probate Registry, which caveat had been warned on 5 July 2011. This resulted in an appearance to the caveat on 22 July 2011. The second defendant entered a caveat on 2 September 2011, which was warned on 22 September 2011, with an appearance being filed on 6 October 2011.
The plaintiff’s claim was supported by an affidavit of the plaintiff, who is a solicitor. He exhibited various scripts pursuant to Rule 205, exhibited the caveats, and attested as to the enquiries he had made to obtain documents. Service of the proceedings on the four defendants was proven.
The first defendant, with the assistance of solicitors and counsel, filed an extensive defence and cross-action on 21 December 2011. A second cross-action with defence correcting a wrong date was filed on 22 December 2011.
It was pleaded in that defence and cross-action that the deceased was the father of the first, second and fourth defendants. The third defendant was a registered nurse who had cared for the deceased between October 2009 and January 2011. It was alleged that the second and fourth defendants had been estranged from the deceased for a significant period of time. The first defendant pleaded that the will of 10 August 2010 should not be admitted to Probate, nor should an earlier will of 21 October 2009. It was alleged that the deceased did not have testamentary capacity at the time of completing those documents. It was alleged that the last true will of the deceased was dated 3 February 2009. A pleading was made as to the circumstances of the deceased’s ill health and his relationship with the first defendant. It was pleaded that the third defendant was instrumental in the deceased making new wills in October 2009 and August 2010 and that at those times he had no understanding of his estate and did not have testamentary capacity. It was pleaded that in relation to those last two documents there were suspicious circumstances and undue influence attributable to the third defendant. It was alleged that the third defendant had made many false and malicious statements about the first defendant, which had resulted in various restraining orders being made against him.
By a cross-action or counterclaim, the first defendant sought that the Court pronounce for the validity of the will of 3 February 2009 in solemn form, or, in the alternative, for a will made in April 2005, and that it pronounce against any will of 10 August 2010 and 21 October 2009. The date of the 2009 will was corrected in the second cross-action. The said defence and second cross-action, filed on 22 December 2011 as settled by counsel, occupies some 24 pages and contains many assertions that will require significant lay and expert evidence to establish at trial. It is clear that the trial is likely to be long and complex.
On 23 December 2011, the second defendant filed a defence. The second defendant pleaded as to the family background and as to the deceased’s ill health. A plea was made as to restraining orders that had been made against the first defendant. Pleas were made in relation to wills alleged to be made on 21 October 2009, 19 July 2010 and 10 August 2010. There was no cross-action. It was pleaded that the plaintiff was not entitled to the orders that he sought.
The third defendant responded to the second counterclaim of the first defendant denying that the Court should propound the February 2009 will and asserting that the deceased had testamentary capacity at the time later wills were made. It was asserted that the will of 10 August 2010 should be admitted to Probate in solemn form. A long plea was made as to the testamentary capacity of the deceased.
On 11 April 2012, the second defendant filed a second defence and counterclaim in which the second defendant denied that the deceased had testamentary capacity when making the will of 10 August 2010. Pleas were made in relation to wills dated 29 April 2005, 3 February 2009, 21 October 2009, 19 July 2010 and 10 August 2010. It was pleaded that the deceased did not have testamentary capacity by the time he executed the will of 19 July 2010, and an order was sought pronouncing the validity of the will of 21 October 2009 in solemn form.
The fourth defendant entered a defence on 20 April 2012 in which he asserted that the deceased had testamentary capacity when making the will of 10 August 2010. There was a denial of any undue influence by any party.
The end result of these pleadings was that the plaintiff and the third and fourth defendants asserted that the Court should pronounce for the validity of the will of 10 August 2010 in solemn form. The first defendant claimed that the Court should pronounce for the validity of the will of 3 February 2009 in solemn form and pronounce against any subsequent will. The second defendant sought orders that the Court pronounce against the wills of 19 July 2010 and 10 August 2010, and pronounce for the validity of the will of 21 October 2009 in solemn form.
As appears from this brief recitation of the background assertions in this action, it is a reasonably complex Probate action.
This Application
In the early stages of the action, the first defendant was represented by counsel instructed by solicitors for the first defendant. On 4 October 2012, the first defendant filed a Notice of Acting in person. Up until that time, the first defendant had been represented by counsel. The Court had been advised on several occasions that at a settlement conference the parties had made progress towards a resolution of the action but time was needed for a draft deed to be prepared and agreed.
On 18 October 2012, the first defendant appeared in person. The Court was informed that it was possible that one or more of the other parties may apply to have a litigation guardian appointed for him. The matter was adjourned.
On 25 October 2012, the plaintiff issued an interlocutory application seeking that a litigation guardian be appointed to represent the interests of the first defendant. That application (FDN 24) was supported by an affidavit of the plaintiff filed on 25 October 2012 (FDN 23). The application was opposed by the first defendant and supported by the other parties. I will consider the evidence in support of and against the application later in these reasons.
The Procedure
His Honour Judge Lunn had cause to consider such an application in Atkins & Anor v Atkins & Ors [2011] SASC 85. In paragraphs [8]-[10] of that decision he sets out the proper procedure to be followed by the Court in determining such an application. His Honour explained:
[8] 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.
[9] 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][1]
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.
[10] 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.[2] 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.
[1] 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.
[2] 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.
In determining this matter I have followed that procedure. It is a serious matter to deprive a party of the ability to represent himself at the behest of another party and the Court must exercise considerable caution in determining such an application.
The Law
The reason for seeking an appointment of a litigation guardian for the first defendant was that the plaintiff asserted that the first defendant was not able to make rational decisions about taking, defending or settling these proceedings and that he was a party under a disability. “Disability” is defined in Rule 4 of the Supreme Court Civil Rules 2006 (SA) as follows:
disability — each of the following is a person under a disability—
(a)a child;
(b)a person whose affairs are administered (wholly or in part) under a law for the protection of persons suffering from mental or physical disabilities;
(c)a person who is not physically or mentally able—
(i) to manage his or her own affairs; or
(ii) to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others);
It is clear from the authorities that what is required for a finding of disability is that the particular litigant has an inability to understand the nature of the litigation, its purpose, its possible outcomes and the risk in costs associated with the particular litigation, and so what is sufficient for some litigation may not be sufficient for more complex litigation – Dalle-Molle v Manos (2004) 88 SASR 193; [2004] SASC 102 – see Lunn, Civil Procedure South Australia, [6R 4.50].
In Rule 78 of the Supreme Court Rules obligations in relation to representation of a party under a disability are explained. Rule 78 is in the following terms:
[6R 78] Representation of party under disability
78 (1) As a general rule, a person under a disability (a protected person) may only take or defend proceedings through a guardian who has authority to represent the interests of the protected person (a litigation guardian).
Exception—
The Court may, however, permit a protected person to act personally in bringing, or taking any step in, proceedings.
(2) The litigation guardian is responsible for the conduct of the proceedings on behalf of the protected person and may take any step in the proceedings and do anything else that the protected person might have done if of full age and capacity.
(3) A party who becomes aware that another party is a protected person and is not represented by a litigation guardian as required by this rule must inform the Court of that fact.
(4) A judgment or proceeding of the Court is not invalid because a party was not represented by a litigation guardian as required by this rule, but the Court may set aside the judgment or proceeding if satisfied that the party has been substantially prejudiced through the lack of such representation.
In the commentary on Rule 78 in Lunn, Civil Procedure South Australia at [6R 78.15], the learned author says:
[6R 78.15] Powers and responsibilities of litigation guardians – subr (2) A litigation guardian has full power over the proceedings in the same way as an ordinary plaintiff: … He or she should act under proper legal advice and dutifully give the instructions which he or she considers proper: … The court will not usually approve a compromise against his or her wishes: … A litigation guardian can only compromise an action in the manner permitted by the rules, and in particular 6R 257 [the approval of the Court on the advice of independent counsel is required for any approval of the compromise]: … [Citations omitted.]
Rule 79 of the Supreme Court Rules identifies those persons who might be appointed litigation guardians, including a person permitted or appointed by the Court. Sub-rules 79(3) and (4) provide:
(3) The Court may, on application by an interested person or on its own initiative, permit or appoint a suitable person to be a protected person’s litigation guardian.
(4) The Court may remove the litigation guardian of a protected person (whether or not appointed by the Court) on any reasonable ground and may permit or appoint some other person to be the litigation guardian.
In the Victorian Supreme Court decision of Slaveski v State of Victoria & Ors [2009] VSC 596, the Honourable Justice Kyrou had cause to consider the obligations of the Court and the principles regarding the appointment of a litigation guardian. At [25], his Honour said:
[25] There is a presumption that a person of full age is capable of managing his or her own affairs, which must include the management of litigation to which he or she is a party. The person who alleges the contrary bears the onus. [Citations omitted.]
That principle applied to this case means that the plaintiff bears the onus of demonstrating that the first defendant is a person under a disability and that it is appropriate that the Court should appoint a litigation guardian to protect his interests.
Kyrou J said (at [26]):
[26] There is no universal test for determining whether a person is capable of managing his or her affairs. Lack of capacity is usually denoted by a person’s inability to understand the nature of an event or transaction when it is explained. In relation to litigation in which a person is a party, the person must be able to understand the nature of the litigation, its purpose and its possible outcomes, including the risks in costs. [Citations omitted.]
At [27], his Honour said:
[27] The words ‘in relation to the proceeding’ in r 15.01 are important because they focus on the person’s ability to bring or defend a particular proceeding rather than on whether the person is able to manage his or her affairs generally …
In [31], [32], [34] and [36], his Honour said:
[31] Where a person is a self-represented party to a proceeding, the level of mental capacity required to be a ‘capable’ litigant will be greater than that required to instruct a lawyer because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.
[32] In my opinion, where a plaintiff is self-represented, the following issues are potentially relevant in determining whether he or she is a person under disability for the purposes of r 15.01 of the Rules:
(a) Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims?
(b) Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her?
(c) Is the plaintiff capable of assessing the impact of particular evidence on his or her case?
(d) Is the plaintiff able to understand the Court processes and the basic rules for conducting his or her case when these matters are explained to him or her?
(e) Is the plaintiff able to understand Court rulings made during the trial when they are explained to him or her?
(f) Assuming the plaintiff is able to understand Court processes, the basic rules of conducting his or her case and Court rulings, is he or she capable of complying with them and directions given by the judge?
(g) Does the plaintiff understand the roles of counsel for the defendant, witnesses and the judge and is he or she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse?
(h) Is the plaintiff able to control his or her emotions and behave in a non-abusive and non-threatening manner when events do not go his or her way during the trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses)?
(i) Does the plaintiff have an insight into the possible adverse consequences of his or her behaviour in court, including delay in the resolution of the claims, the defendant incurring additional costs that the plaintiff might have to pay if the claims are unsuccessful and the tying up of scarce judicial resources when these matters are explained to him or her?
(j) Does the plaintiff understand that he or she could possibly lose the case in whole or in part when this matter is explained to him or her?
(k) If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would the plaintiff be capable of forming such a view?
(l) Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties’ submissions and other developments in the proceeding as at the time the proposal is made?
(m) If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm the plaintiff’s physical or mental health?
[33] …
[34] Ordinarily, the Court will determine whether a party has the requisite capacity for the purposes of Order 15 after receiving medical evidence. However, where a party’s incapacity is readily apparent from his or her behaviour inside the courtroom, the Court may be able to make the determination without the assistance of medical evidence.
[35] …
[36] Once a litigation guardian is appointed, he or she stands in the shoes of the person under a disability and must act in the interests of that person. The litigation guardian has the conduct of the proceeding, including responsibility for the engagement of legal representatives and the giving of instructions about the calling of witnesses and the settlement of the proceeding. [Citations omitted.]

In Murphy v Doman [2003] NSWCA 249, the Full Court of New South Wales, per Handley JA and Tobias JA, held at [2]:
[2] The cases do not consider the level of mental capacity required for a ‘competent’ litigant in person, but it cannot be less than that required to instruct a solicitor. It should be greater, because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation. [Citation omitted.]
I approach the application in this matter bearing in mind the above principles.
The Evidence
The plaintiff relied on a number of affidavits and expert evidence that was obtained by a litigation guardian appointed by the Court for the first defendant to assist the first defendant and the Court in responding to the plaintiff’s application.
The plaintiff’s interlocutory application was supported by an affidavit of the plaintiff (FDN 23) filed on 25 October 2012. It was put in that affidavit that the first defendant at directions hearings on 19 September 2012 and 18 October 2012 by his comments gave grounds to suspect that he was a person under a disability not mentally able to make rational decisions about taking, defending or settling proceedings.
The plaintiff attested that before his Honour Judge Burley on 18 October 2012, the first defendant asserted that:
1.This is “a great criminal conspiracy”.
2.Nine police officers from Port Adelaide Police Station are under investigation in connection with the matter.
3.The third defendant had murdered his father and is guilty of “murder for profit”.
Annexed to that affidavit were:
(1)copies of eight pages of the Queen Elizabeth Hospital Notes in relation to the treatment of the deceased;
(2)a copy of a complaint seeking a restraining order from the deceased in relation to the first defendant dated 16 October 2008;
(3)three affidavits of the deceased partially redacted by the Police Department from whom it was obtained dated 15 October 2008, 21 October 2009, and 15 October 2009;
(4)a restraining order made on 29 October 2009.
Further reliance was placed on an affidavit of the solicitor for the third defendant, who attested about events that occurred on 18 October 2012 immediately before the Court hearing. He attested that the first defendant had said to him “Your client is going to go to gaol and her husband. The truth will prevail very shortly. All these crimes will be exposed.”. He attested as to the statements made in Court about which Mr Hollidge had already filed an affidavit.
Also filed on 19 December 2012 in support of the application was an affidavit of the third defendant in which she attested as to telephone calls that occurred on 12 November 2012, where the caller said he was the son of the deceased and said “You know you killed him; he didn’t just die”. The third defendant attested that the voice was that of the first defendant. A further call was made on the same night but the third defendant increased the volume on electronic equipment playing nearby and no conversation occurred.
An affidavit of Piotr Lipski, who is the son of the third defendant, was also filed on 19 December 2012. He attested to a telephone call on 12 November 2012 in which the caller asked to speak to his parents, who were at the time not home. The caller then asked him to tell his mother and father that they would go to gaol because they had committed a serious crime. He did not recognize the voice of the caller.
The Court made an order appointing Mr John Ambrose Daenke as litigation guardian of the first defendant for the limited purpose of this application. On 22 January 2013, he filed an affidavit setting out the steps that he was taking to investigate whether or not the first defendant suffered a disability.
On 5 March 2013, the solicitor for the fourth defendant filed an affidavit asserting that the fourth defendant and her family had been subjected to “numerous threatening, intimidating and nonsensical emails sent from the self represented First Defendant, Mr Marcus Pomeroy” – see paragraph 2. Exhibited to the affidavit were emails apparently from the first defendant to the fourth defendant dated 15 September 2012, 18 September 2012, and 26 January 2013.
The email of 15 September 2012 is in the following terms:
ST IGNATIOUS I FORGOT IT WAS ASH WHOM WENT TO CBC NOT THAT ANY OF YOU WISENED TO THE FACTS BUT ALL IS DAMMED FOR YOUR SINFUL SOULS AND I SHALL HAVE YOU ALL PRESENT TO ACCOUNT FOR ALL LOSSES INCLUDING THE INVOLVEMENT OF MY FATHERS DEATH ENJOY THIS WEEK END
On Sat, Sep 15, 2012 at 2:00 PM, marcus pomeroy … wrote:
dear rod i have you under investigation for crimes and undue influence as for caroline she shall have far more to worry about and to think that your heartless crimes you both felt safe in getting away with,cbc and mary mckillop did nothing for your souls and the truth always prevails and let your old mother dorithy be aware that her role shall be fully exposed. HAVE A RELAXING WEEKEND AS MY THOUGHTS ARE WITH YOU BOTH
The subsequent emails are less expansive but of a similar nature.
A copy of a letter from the solicitors for the fourth defendant dated 25 February 2013 and addressed to the first defendant was exhibited as document FDN 30B. In it those solicitors complain of correspondence being sent to their client by the first defendant which was threatening and intimidating. A demand was made that this activity cease immediately, failing which it would be reported to the Police.
All of the foregoing material, save for the affidavit of Mr Daenke of 22 January 2013, was included in material forwarded to the psychiatrist Professor Alexander McFarlane AO, who had agreed to provide a report on the first defendant at the request of the litigation guardian. The litigation guardian forwarded to Professor McFarlane material, including those affidavits to which I have referred, expert witness directions of the Supreme Court, the definition of “disability” in Rule 4, and a copy of the pleadings in the action. Professor McFarlane was asked to provide a report on any condition from which Mr Pomeroy suffered, if any, and how that impacted on his ability to manage his own affairs or to make rational decisions about taking, defending or settling proceedings or to communicate decisions to others.
Professor McFarlane thereafter provided an extensive report in which he identified the material considered and described five sets of medical records that he also considered as part of preparing his report. He found that the first defendant suffered from chronic post traumatic stress disorder, with an unusual feature being the extent to which its manifestation was dominated by hypervigilance, which is so extreme as to have taken on psychotic proportions – see page 18 of his report, being Exhibit “JAD4” to the affidavit of Mr Daenke (FDN 33). He did not believe that the first defendant suffered from schizophrenia. He noted that the first defendant has “significant difficulties with his sleep and is notably irritable. His hypervigilance is pervasive and his difficulty in maintaining his response to questions highlighted his problems with his memory and concentration. … These symptoms have been present for a number of years and are a significant cause of impairment and disability”.
Professor McFarlane found that the first defendant suffered a delusional disorder, with an extensive set of persecutory views and beliefs consistent with that assessment – see page 20 of his report. The first defendant was also diagnosed as suffering from a major depressive disorder.
In answering the questions as to whether or not the first defendant fell within the definition of “disability” in the Rules, Professor McFarlane said (at page 21):
At the time of my assessment as set out above, I believe that he is operating under the presence of a series of delusional beliefs. These are particularly of a persecutory nature. It is often the case that individuals who have persecutory beliefs also have a secondary related set of grandiose delusions. It may or may not be the case that the extent of the estate and his own assumed wealth are subject to such appraisal of a delusional nature. This matter is ultimately for the court to decide.
However, on the basis of my clinical assessment and examination of the documents, I do not believe that Mr Marcus Pomeroy is in a sound state of mind to the extent that he is either able to manage his affairs or able to make rational decisions about defending or settling proceedings, or to communicate decisions to others. I base this opinion, in part, from the difficulties he had in engaging in the process of a psychiatric interview and the related mental state examination.
His anxiety and disorganised thinking, combined with his delusional beliefs prevent a rational appraisal of the circumstances of the current proceedings and his ability to make balanced and reasoned decisions about the optimal and reasonable resolution of the matters that are currently before the court.
The fact that Marcus Pomeroy has made threatening and illogical assertions against family members highlights the disorganisation of his thinking. Harbouring under delusional beliefs has the risk of him pursuing actions or making decisions that are not based on rational appraisal of the circumstances.
Professor McFarlane subsequently commented on a report forwarded to him that had been obtained from Dr Rosemary Brown by Mr Pomeroy’s initial solicitor, which report was dated 19 August 2011. In that report Dr Brown had expressed the view that Mr Pomeroy would be a reliable witness. Professor McFarlane did not accept Dr Brown’s opinion that prior mental health professionals had necessarily been erroneous in their appraisal of the situation. He expressed the view that Mr Pomeroy’s firm belief that his father had been murdered, where a post-mortem did not raise that possibility, he regarded as demonstrable evidence of Mr Pomeroy’s delusional thinking. He maintained his opinion.
Subsequent to that report, a further affidavit was filed by Mr Daenke on 19 June 2013 exhibiting a letter from Professor McFarlane dated 13 June 2013, in which Professor McFarlane advised that Mr Pomeroy had been telephoning his office making potentially accusatory and aggressive statements. A copy of the messages recorded by his voice messaging system was provided, which is document FDN 34a on the Court file. One part of the recorded message on 5 June 2013 was as follows:
“In case you didn’t get the previous message, pass onto McFarlane that regarding that appalling false report made, he has really stepped over the mark this time and it is clearly evident he is clearly there to protect crooked coppers and crooked lawyers and he is going down for this report. I wouldn’t mind asking for it to be shoved up his …….”
On 11 November 2013, a further affidavit was filed by the plaintiff attesting to an abusive telephone call from the first defendant to his receptionist, in which it is alleged he said to the receptionist on 7 November 2013:
“so Graeme Hollidge thinks he’s a smart bastard but I’m going to get him, he will pay. Fucking piece of shit”.
When the receptionist enquired who was calling, it is alleged that he said:
“Marcus Pomeroy is my name. Hollidge will know who this is by the time I’m finished with him fucking liar. He’s a dead man that Hollidge”.
Mr Hollidge attested that the receptionist then hung up the telephone and then about two minutes later had a further telephone call from the first defendant but hung up on him as he was simply repeating his earlier comments.
After the hearing an affidavit was filed by the fourth defendant on 15 January 2014. No permission was sought to file or use that affidavit and I have had no regard to it in reaching my decision.
Evidence from the First Defendant
The first defendant did not file any affidavit evidence in response to the various affidavits upon which the plaintiff relied. Rather, the first defendant made submissions at the hearing of the plaintiff’s application on 12 November 2013, and in the course of those submissions tendered a number of documents.
The first exhibit “D1 1” was a copy of an email from the South Australian Police to a Mr Danny Carroll dated 23 November 2009 and related to the collection of various bags of the first defendant’s property from the property of the deceased. Mr Pomeroy suggested in submissions that those bags were never made available, and that he had valuables on that property which had been taken which were worth at least $90,000.00.
The second exhibit was a letter from Dr Czechowicz dated 22 April 2010 to Mr Colton, who was the first defendant’s then solicitor. Dr Czechowicz in that letter said that Mr Pomeroy had severe distress and post traumatic stress disorder reaching psychotic proportions due to the events of his eviction from the house of which he was a part-owner. This is a property at Semaphore of which the deceased was the registered proprietor. Mr Pomeroy does not appear on the title of that property as a part-owner but does assert that he should have appeared as a joint owner with his father, having provided money for the purchase of the property many years ago. He has a complaint in relation to this issue about the firm of solicitors of which the plaintiff is a member.
In his submissions following the tendering of this letter, Mr Pomeroy referred to a period when he was tortured and to a decision of Magistrate Gumpl in the Magistrates Court. As I understand it this relates to a time when he was arrested for failing to co-operate with transit police officers in November 2002 by providing evidence of a ticket. His submissions in relation to this, and in relation to most of this matter, were disorganized, jumped from place to place, and were often not related to the issues before the Court.
The third exhibit provided by Mr Pomeroy was a report of Dr Czechowicz dated 14 March 2007. In that report Dr Czechowicz advised that he had seen Mr Pomeroy from 2001. He described the history given him by Mr Pomeroy of various assaults and mistreatment in the past. He asserted that Mr Pomeroy had the features of post traumatic stress disorder at that time. He saw him again in September 2003. He spoke of an incident of 22 November 2002. This was the occasion when Mr Pomeroy asserted that he had been falsely detained by transit police and then had been searched, stripped and kept in a padded cell causing him all sorts of pain and degradation. Mr Pomeroy asserted that he had been decidedly worse after the event of 22 November 2002. He continued to suffer from post traumatic stress disorder and depression, which had been severely aggravated by this November 2002 event.
I note that Mr Pomeroy in his submissions asserted that he had been provided with copies of these reports by the secretary to Dr Czechowicz when he saw Dr Czechowicz on 3 October 2013, and was informed by her that these reports should be sufficient for this Court’s present considerations.
The fourth exhibit was a document from the Courts Administration Authority Data Archive System, together with a screen dump of various cases which disclosed his involvement in various traffic offences and in a domestic violence restraining order.
The fifth exhibit was an email from a Mr Van Kruyssen of the Legal Services Commission dated 3 August 2011, noting that he had acted for Mr Pomeroy in relation to police charges, which were withdrawn on the morning of trial. This was in response to a request from Mr Pomeroy’s then lawyers for a copy of any brief that Mr Van Kruyssen had in relation to that matter.
In the transcript at page 14, Mr Pomeroy described himself as a victim of corruption and organized crime. These complaints were repeated on various occasions throughout the submissions and had been made by him on earlier attendances.
The sixth exhibit was a summary of QEH Notes which had been provided by the solicitors for the plaintiff in relation to the admissions of the deceased and the various QEH records in respect of various incidents over that period of time. It includes some recording of angry exchanges between the deceased and the first defendant, and various issues in relation to the care of the deceased. Whilst it might be of considerable use in the trial of the substantive proceedings in this matter, it is not particularly relevant to the issue presently before the Court.
The seventh exhibit was a letter from the Office for Public Integrity of South Australia to Mr Pomeroy relating to his complaint about verbal attacks made on him by the Police Ombudsman, Sarah Bolt, and what he needed to do to follow up on that.
The eighth exhibit was a document headed “Pomeroy - Police Officers Involvement”. This related to various instances over time about property missing from the Semaphore property, about the restraining order, about an open safe, about an allegedly stolen car, and generally as to that house property.
The ninth exhibit was a document headed “Pomeroy - Police Investigation Diaries (electronic)” provided under the Freedom of Information Act on an application made by Mr Pomeroy. It appears to be a record of all police investigations relating to the property at Semaphore, from 2000 to date. It can be inferred that it was a response to an application made by the solicitors for Mr Pomeroy as their name appears at places in the material. It is a record of various events from 1991 to 2009 in relation to that property, and otherwise in relation to the first defendant.
Mr Pomeroy was concerned when making his submissions that he did not have with him some documents that he had wanted to tender. He asserted that he was in the process of seeing a clinical psychologist who was working with a forensic psychologist to try and sort this matter out. At one stage, at page 17 of the transcript, he said:
… I don’t have anxiety, I just have too much information …
This was put in an explanation of his desire to put forward matters that were not relevant to the application.
Mr Pomeroy asserted that he had represented himself against two police officers in a contested Court action which he had won. I note that this was a trial before Magistrate Little and that the reasons for decision appear in Exhibit “D1 10”. It appears that the prosecution did not call a key witness, as a result of which the complaint was dismissed. He asserted that he fully understands what this action is all about. He made assertions about Professor McFarlane in relation to his involvement in the matter of Eugene McGee. He intimated that he would appeal any litigation guardian appointment that the Court chose to make.
To ensure that Mr Pomeroy had an opportunity to put material before the Court that he wanted the Court to consider, he was provided with a further 7 days within which to lodge any further exhibits. On 22 November 2013, he provided further documents in the form of two folders, which were accepted as Exhibit “D1 10”.
The plaintiff and other defendants were notified of the receipt of this material and invited to inspect same at the offices of the Court if they so desired. A number of representatives did subsequently inspect those documents, and on 3 December 2013 an email was received advising that the documents had been inspected by Mr Howard, Mr Marker, Ms Abbott and Mr Hollidge, and that collectively those persons were of the view that the further material did not derogate from submissions made to the Court by the plaintiff at the hearing on 12 November 2013. It was put that taken globally the material supported those submissions.
Exhibit “D1 10”, contained in two folders, included a very considerable array of material relating to past events about which the first defendant had considerable complaint.
In folder 1, there is initially some material provided by SAPOL under the Freedom of Information Act. This was in response to a request that it provide information in relation to all apprehension reports involving the first defendant from 1992 to January 2012. Nineteen documents were identified and partly released. Included in these documents is a record of the 22 November 2002 transit police arrest. It includes disclosure of records of incidents from 2 December 1993 to 16 October 2010, comprising some 18 documents in all.

There is a note alleging that Sarah Bolt did not ask the first defendant for evidence but rather slandered him, compounding his complex post traumatic stress disorder. Sarah Bolt is, or was, the Police Complaints Authority.
There is correspondence, together with a statement to the Police Complaints Authority, dated 11 September 2012. Included in this statement is the allegation that the subject property should always have been in the joint names of the first defendant and his father. Despite this allegation being made on multiple occasions, it is telling that no application has been made by Mr Pomeroy to take any remedial action in that regard. The material in relation to the 2002 incident includes a litany of complaints about mistreatment by the police. There is material relating to restraining orders against him to stay away from the Semaphore premises, and material in relation to the alleged loss of valuables. There is material as to his belief that the third defendant was responsible for his father’s death.
Included in the material is a copy of the reasons for decision of Magistrate Little of 7 December 2010, in which he was found not guilty because of a lack of relevant evidence called by the police. There is a discussion of a trespass claim.
There is further material exhibiting correspondence from Stephen Wade, MP, and, again, material relating to the 22 November 2002 events.
There is a chronology and a summary of handwritten notes, and a statement of 20 July 2011 that includes photocopies of files held by MALSSA Incorporated sent to Mrs Pederick, his former lawyer. MALSSA is part of the Australian Network of Disability Advocacy Services.
Further in folder 1 is copy correspondence between Mr Pomeroy’s former lawyers and the Coroner’s Court, and various statements received by the Coroner. There are statements received from two police officers, in particular Constable Latus, which details all of the various medical complaints apparently suffered by Mr Underhill-Pomeroy prior to his death.
In folder 2, there is a copy of an affidavit of the third defendant of 23 March 2010, together with letters complaining of various threats allegedly made by Mr Pomeroy. Those letters emanated from solicitors for the second defendant and solicitors for the third defendant.
There are copies of correspondence with the Legal Practitioners Conduct Board in relation to complaints that Mr Pomeroy made against a solicitor in the firm of solicitors representing the plaintiff and against a former solicitor.
There is a statement of a Ms Bernadette Morrison, who was formerly involved with Mr Pomeroy, and a report in relation to the removal of various vehicles from the Semaphore property.
There is a summary of events apparently taken from Mr Pomeroy’s diaries, and another copy of Scammell’s review of the Queen Elizabeth Hospital Notes.
The folder contains correspondence between the solicitors for Mr Pomeroy and the first defendant, and between other solicitors.
There is a 17 November 2009 report of Dr Catherine Gibb to the effect that the deceased was suffering delirium. Various undated notes and statements are included, including a statement of Monika Swan.
The Application
This application has taken a considerable time to come to submissions and finalization. It was first before the Court on 12 November 2012, when the first defendant advised the Court that it would be defended, and that it contained a lot of false allegations and dirty lies. He noted that he had successfully defended himself against a few members of the Port Adelaide police. The plaintiff asked that the Court appoint Public Trustee as a litigation guardian. At that time the Court directed that a Master’s inquiry be conducted into whether or not the first defendant was a person under a disability, and raised the issue of the appointment of a litigation guardian to assist the first defendant in responding to the application. The matter was adjourned to 28 November 2012. In that hearing on 12 November 2012, Mr Pomeroy again asserted that the Semaphore home should have been in the joint names of him and his father, not just his father’s name.
On 28 November 2012, the Court reconsidered the matter. At that hearing Mr Daenke advised that he was prepared to accept an appointment as litigation guardian for the purpose of the Master’s inquiry. Mr Pomeroy made a number of interjections, asserting that “these two here [Mr Howard and Mr Hollidge] - which I’ve paid $550 to protect my estate” (again referring to his assertion he should have had a registered interest in the property). He described himself as the victim of circumstances. As to any person who was to assist him he wanted somebody who dealt in criminal law as the other parties had colluded and conspired against him. An order was made appointing Mr Daenke litigation guardian, with various directions, and the matter was adjourned to 24 January 2013.
On 24 January 2013, the Court had received an affidavit from Mr Daenke as to developments and what steps were being taken by him in his investigations. Mr Pomeroy was asking where his “stuff” was from the property. He asserted that the husband of the third defendant had died in suspicious circumstances. He said, “So how many more people have to die?”. Various orders were made to enable the litigation guardian to follow up on the contemplated action. Mr Pomeroy finished with asserting that this room is “full of lies”.
On 10 May 2013, the affidavit of Mr Daenke exhibiting the report of Professor McFarlane had been received. The first defendant wanted to dispute the report and needed time. He wished to see Dr Czechowicz to get a conflicting report. He advised that he would need a month to do that. Various directions were given and the matter was adjourned to 3 July 2013.
On 3 July 2013, it was noted that the first defendant had sent an email requesting an adjournment because Dr Czechowicz was away until August. It was noted that the earlier efforts by the litigation guardian to get a report from Dr Czechowicz had been unsuccessful. The first defendant said that Dr Czechowicz said that he had never heard from the litigation guardian. He asserted that all his supporting reports from Dr Brown and Dr Ortell had been left out of the material provided to Professor McFarlane. That is not in fact the case, although the report from Dr Brown was commented on by Professor McFarlane after his main report.
The Court fixed a timetable on that occasion for a hearing in September in an effort to bring this application to an end. Directions were given about affidavits and expert reports. The first defendant unsuccessfully requested that his former solicitor be ejected from the body of the Court.
The intended hearing on 3 September 2013 was adjourned administratively to 16 September 2013 by consent.
On 16 September 2013, the first defendant asserted that he did not need a litigation guardian. He had an appointment with Dr Czechowicz on 3 October 2013. He asserted that he had made that appointment in early August. He asserted that he had written to Dr Czechowicz seeking a report. He referred to various complaints he had made against Mr Alan Colton, a former solicitor. He said that the third defendant was the main suspect in his father’s suspicious death. The Court permitted an adjournment to accommodate the examination by Dr Czechowicz. On this occasion the first defendant orally sought an order that the ownership of the property be transferred into joint names. He interrupted the submissions of other counsel. He refused to sit when requested. He made allegations of filthy corruption and disgusting conduct in Court. He displayed inappropriate, irrational and uncontrolled behaviour. The matter was adjourned to 12 November 2013 for hearing.
Discussion
The overwhelming weight of evidence in this matter is to the effect that the first defendant suffers from a psychiatric condition of post traumatic stress disorder with delusional beliefs. That does not necessarily mean that all of the first defendant’s beliefs or past history is delusional, but rather that at least some of it is. In considering whether or not he is a person who is able to represent himself, I am mindful of the thirteen criteria set out by Kyrou J in Slaveski’s case – see before. I address each of those criteria.
(a)Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims?
In my view, the first defendant does understand what he has to prove in this action, but there is no indication from his submissions, or from his past actions, that he is aware of the nature and extent of the evidence that he will need to call to support his claim nor of any attention to that issue.
(b)Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her?
The first defendant has difficulty in understanding what is relevant to these proceedings and what is not. The first defendant would like to use these proceedings as something akin to a Royal Commission to inquire into the various injustices and indignities to which he has been exposed over the past twelve or more years. He has great difficulty in focusing and confining his attention to the issues actually before the Court, namely the validity of challenged wills. He constantly seeks to ventilate other matters of grievance.
(c)Is the plaintiff capable of assessing the impact of particular evidence on his or her case?
In my view, the first defendant is not capable of assessing the impact of particular evidence on his or her case in all circumstances. That is because of his preoccupation with past events.
(d)Is the plaintiff able to understand the Court processes and the basic rules for conducting his or her case when these matters are explained to him or her?
The first defendant is probably able to understand the Court processes and basic rules. However, he has demonstrated an inability or unwillingness to comply with them. His failure to file affidavits responding to the assertions made against him is notable. His interjections and at times unseemly behaviour in Court demonstrate this. His periodic complaints of corruption and disgusting conduct are indicative of either his inability or unwillingness to accept Court rulings and to confine his submissions to the issues before the Court.
(e)Is the plaintiff able to understand Court rulings made during the trial when they are explained to him or her?
The first defendant is likely to be able to understand Court rulings but will likely be disinclined to accept them if unfavourable to him.
(f)Assuming the plaintiff is able to understand Court processes, the basic rules of conducting his or her case and Court rulings, is he or she capable of complying with them and directions given by the judge?
Because of his illness the first defendant is not always inclined to or capable of complying with Court directions and rulings.
(g)Does the plaintiff understand the roles of counsel for the defendant, witnesses and the judge and is he or she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse?
The first defendant does not appear to respect the roles of counsel for the other parties (or at least the counsel involved) and makes various accusations against them of unprofessional conduct and accuses some of them of conspiring against him. He has demonstrated inappropriate interference and abuse at times when they have been addressing the Court.
(h)Is the plaintiff able to control his or her emotions and behave in a non-abusive and non-threatening manner when events do not go his or her way during the trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses)?
On occasions the first defendant has not demonstrated an ability to control his emotions and to behave in a non-abusive and non-threatening manner when events do not go his way. On other occasions he has accepted Court rulings.
(i)Does the plaintiff have an insight into the possible adverse consequences of his or her behaviour in court, including delay in the resolution of the claims, the defendant incurring additional costs that the plaintiff might have to pay if the claims are unsuccessful and the tying up of scarce judicial resources when these matters are explained to him or her?
The first defendant’s view of this matter is considerably clouded by his perception of past injustices that he has suffered at the hands of the police and others. The first defendant gives every indication of wanting to have a broad ranging enquiry on all matters of concern to him as part of this claim rather than indicating an understanding and preparedness to deal with the claims and issues set out in the very comprehensive pleadings.
(j)Does the plaintiff understand that he or she could possibly lose the case in whole or in part when this matter is explained to him or her?
It is unlikely that the first defendant understands or accepts that he could lose the case if he is allowed to call all of the material that he considers appropriate in explaining the injustices that occurred in his past rather than concentrating attention and evidence on the testamentary capacity of the deceased at the relevant times.
(k)If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would the plaintiff be capable of forming such a view?
It is unlikely that the first defendant would be capable of forming a view based on commonsense and reasonable intelligence that the claim would fail as his view would likely be clouded by irrelevant factors. However, the first defendant has with the assistance of counsel pleaded a detailed case in support of his cross-action. Considerable evidence will need to be called in support. To ensure that his claim is fairly considered there will need to be a careful presentation of this evidence which is likely to be both long and expert. It will be an exacting task for an experienced counsel at trial. There is no reason to suppose that his claim if properly presented would necessarily fail.
(l)Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties’ submissions and other developments in the proceeding as at the time the proposal is made?
The emotional attachment of the first defendant to many issues outside the ambit of this case, in respect of some of which he sees the other parties in this case being involved, is such that it is unlikely that he would be able to objectively assess any settlement proposal on its merits, nor give instructions in relation to same.
(m)If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm the plaintiff’s physical or mental health?
There is some risk that the stress and pressure of litigation, particularly in the event that the first defendant is not allowed the freedom of inquiry that he seeks, or is otherwise unsuccessful, could well further harm his mental health.
Conclusion
In my view, the plaintiff has met its onus of establishing that the first defendant suffers a disability as defined by the Rules, namely that he is a person who is not mentally able to make rational decisions about taking, defending or settling these proceedings (or to communicate those decisions to others). In those circumstances, it is appropriate that the Court should appoint a litigation guardian pursuant to Rule 79(3) of the Supreme Court Civil Rules 2006, which litigation guardian will be responsible for the future conduct of this matter in accordance with the provisions of Rule 78. This appointment is predominantly for the protection of the first defendant’s interests. It will also facilitate the future efficient conduct of the action. The effect of such an appointment is that the first defendant will no longer be able to personally represent himself or make decisions in relation to the management of his claims in these probate proceedings. He will no longer be able to sit at the bar table or make submissions to the Court. Decisions in relation to his claim will be made by the litigation guardian, most likely on the advice of counsel. It will be for the litigation guardian to arrange for representation before the Court.
The appointment of Mr Daenke as litigation guardian for the first defendant for the limited purpose of the plaintiff’s application is now revoked. I find the defendant to be a person under a disability within the meaning of Rule 4 of the Supreme Court Rules.
There will be an order that Public Trustee be appointed litigation guardian of the first defendant for the purpose of these proceedings. The plaintiff is to prepare Minutes of Order reflecting these reasons. The plaintiff is to provide to Public Trustee within 21 days a copy of all of the pleadings in this matter, together with a copy of this order and these reasons.
For the benefit of the first defendant, I advise that he has 21 days in which he can appeal this decision.
I certify fit for counsel.
Further consideration of this matter will be adjourned to a Directions Hearing in eight weeks to enable Public Trustee sufficient time to consider material provided to it by the plaintiff and to take such steps as it may think appropriate.