Hollidge v Pomeroy

Case [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

  1. 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.

  2. 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.

  3. 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.

  4. 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.  

  5. 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…

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Hollidge v Pomeroy [2014] SASC 45
Case
[2014] SASC 45
Decision Date

CaseChat Overview and Summary

In the case of Hollidge v Pomeroy, the applicant, Hollidge, sought the appointment of a litigation guardian for Pomeroy, the defendant, in probate proceedings. The application was brought under Rule 79(3) of the Supreme Court Civil Rules 2006, which allows for the appointment of a litigation guardian when a party to the proceedings is a person under a disability, meaning they are not mentally able to make rational decisions about taking, defending, or settling proceedings. The application was supported by affidavits and expert evidence obtained by a litigation guardian already appointed for Pomeroy to assist him and the court in responding to the application.

The court was required to decide whether Pomeroy was a person under a disability within the meaning of Rule 4 of the Supreme Court Rules, and if so, whether it was appropriate to appoint a litigation guardian for him. The court considered evidence including affidavits from the plaintiff, the third defendant, and the solicitor for the third defendant, as well as hospital notes and a restraining order. The court found that Pomeroy was indeed a person under a disability and that it was appropriate to appoint a litigation guardian for him.

The court's reasoning was based on the evidence presented, which showed that Pomeroy had made irrational statements and exhibited delusional behavior. The court found that Pomeroy was not mentally able to make rational decisions about taking, defending, or settling the proceedings, and that the stress and pressure of litigation could further harm his mental health. The court appointed the Public Trustee as the litigation guardian for Pomeroy, with the limited purpose of the applicant's application. The plaintiff was ordered to provide copies of all pleadings in the matter, together with a copy of the order and reasons, to the Public Trustee within 21 days.

In conclusion, the court found that Pomeroy was a person under a disability and appointed the Public Trustee as his litigation guardian for the purpose of the probate proceedings. The decision was made in the interest of Pomeroy's well-being and to facilitate the efficient conduct of the action.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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