Krnjic v Bunnings Group Ltd (No.2)
[2018] FCCA 1609
•18 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KRNJIC v BUNNINGS GROUP LTD (No.2) | [2018] FCCA 1609 |
| Catchwords: DISCRIMINATION – Applicant alleged by respondent to suffer from mental incapacity – inadequacy of medical evidence. LITIGATION GUARDIAN – Application by respondent for appointment of litigation guardian to applicant – no formal application made by application in a case – application made ore tenus – application reliant on note from applicant’s solicitor and letter from consultant psychiatrist – no medically and legally supportable psychiatric evaluation – no detailed evidence of applicant’s mental state – letter not adequate to support legal contentions that respondent urged – letter failed to dissect the elements recorded in rule 11.08 of the Federal Circuit Court Rules – respondent application premature and disproportionate – application dismissed – extensive review of authorities. |
| Legislation: Guardianship and Administration Act 1995 (Tas), s.25 |
| Cases cited: Ahmet v Jardine [2014] VSCA 52 |
| Applicant: | JOHN KRNJIC |
| Respondent: | BUNNINGS GROUP LTD (ACN 008 672 179) |
| File Number: | MLG 1004 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 5 April 2018 |
| Date of Last Submission: | 5 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 18 June 2018 |
REPRESENTATION
| Solicitors for the Applicant: | AED Legal Centre |
| Counsel for the Respondent: | Ms R. M. Nelson |
| Solicitors for the Respondent: | Lander & Rogers |
ORDERS
The respondent’s application made ore tenus on 5 April 2018 for the appointment of a litigation guardian for the applicant is dismissed.
On or before 2 July 2018, each party file and serve any written submissions on the question of the costs of the application in a case.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1004 of 2017
| JOHN KRNJIC |
Applicant
And
| BUNNINGS GROUP LTD (ACN 008 672 179) |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
On 5 April 2018 when I handed down judgment in respect of the applicant’s statement of claim, counsel for Bunnings Group Ltd argued that this proceeding should be stayed pending the appointment of a litigation guardian. That application was made ore tenus. Counsel for the respondent relied on a five page written submission that incorporated matters of fact and law, including the decision of the Full Court of the Federal Court of Australia in L v Human Rights and Equal Opportunity Commission.[1]
[1] [2006] FCAFC 114
The respondent relied on a note from the applicant’s solicitor to the effect that the applicant’s emotional fabric was delicate. No detailed evidence of the applicant’s mental state has been adduced in this case.
The issue in context
As appears from my decision in Krnjic v Bunnings Group Ltd,[2] in this litigation the applicant has claimed damages for disability discrimination allegedly committed by the respondent. The version of the statement of claim on which the applicant will proceed to trial has yet to be filed.
[2] [2018] FCCA 813
On the day I handed down interlocutory judgment on the respondent’s application for the summary dismissal of this proceeding (the upshot of which was the dismissal of that application) counsel for the respondent received my written reasons and moved, ore tenus, for an order staying the proceeding pending the appointment of a litigation guardian for the applicant. The motion had obviously been well considered in advance of 5 April 2018 because counsel for the respondent handed to me a five page 20 paragraph written submission headed “Respondent’s outline of argument – stay of proceeding” that advanced propositions of fact and law to support the respondent’s contention that this proceeding should be stayed until a litigation guardian was appointed.
It must be pointed out at once that no formal application was made by application in a case for the orders the respondent sought. Further, the applicant did not file material in opposition to the respondent’s motion. That was hardly surprising as the motion was made ore tenus and to the applicant’s perspective (indeed to my way of thinking) on the run, notwithstanding the detailed thought and consideration that had gone into the preparation of the respondent’s written submissions.
The respondent relied on an email sent to the applicant’s solicitors dated 29 March 2018. With that email was a letter from the respondent’s solicitors also dated 29 March 2018 together with a letter dated 22 March 2018 from Dr Byron Rigby, a consultant psychiatrist. In his letter, Dr Rigby stated that the applicant was –
not able to sustain the necessary activities of instruction and comprehension involved in litigation.[3]
[3] Letter from Dr Byron Rigby to AED Legal Centre, 22 March 2018.
In the letter from the applicant’s solicitors they stated that the applicant was unable to give instructions for a period of six months on account of the applicant’s ill health.
The respondent said those two items of information (the letter from Dr Rigby and the letter from the applicant’s solicitors) put the court on notice that the applicant’s solicitors and his treating psychiatrist were of the opinion that the applicant did not then have capacity to give instructions. Yet no one on behalf of the applicant sought the appointment of a litigation guardian.
Citing the decision of the Court of Appeal and Supreme Court of Victoria in Ahmet v Jardine,[4] the respondent contended that in those circumstances it was open to me to appoint a litigation guardian and that until such appointment was made, the appropriate course was for me to stay this proceeding.
[4] [2014] VSCA 52
Synopsis
At the outset let me state that I shall do no such thing. These are my reasons for my conclusion.
The evidence in this case
It must be observed at this juncture that the psychiatric evidence in this case was, so far, perfunctory, to say the least. The respondent focused on a single proposition that emerged from Dr Rigby’s letter, namely, that the applicant was then not able to sustain the necessary activities of the instruction and comprehension involved in the litigation. As this proceeding presently stands, pursuant to my orders of 5 April 2018 the applicant has been given leave to re-cast his statement of claim. He has until 20 September 2018 to do that. While the applicant is undertaking that activity, the respondent is not required to do anything. It will not incur any costs in this case until it is served with the applicant’s revised version of the statement of claim. Events may well transpire that the applicant’s revised version of the statement of claim is unassailable and the case can then move to the next phase in this litigation. Conversely, the applicant may not comply with the orders requiring him to provide a revised statement of claim. Considerable time remains for the events to unfold.
In the ordinary course of events, expert evidence of a psychiatric nature on which a party urges the court to rely usually takes a very much more sophisticated form than was the extremely truncated information from Dr Rigby. Naturally, I accept that Dr Rigby expressed a particular view in his letter, but by no means did his letter purport to be the expression of a medically and legally supportable psychiatric evaluation. Self-evidently Dr Rigby did not put his letter forward on the basis that it represented a proper forensic distillation of the applicant’s psychiatric condition. In my experience in common law courts in which medical evidence is tested on a daily basis, a considered psychiatric assessment takes into account an array of issues that Dr Rigby did not examine. No doubt that was for the very good reason that Dr Rigby had not been requested to provide, and he therefore did not provide, a comprehensive psychiatric assessment of the applicant. Had Dr Rigby offered a comprehensive psychiatric assessment of the applicant, his evidence would have covered such details as the number, dates and contents of each consultation the psychiatrist had with his patient, the factual and historical information gained from the psychiatrist, any diagnostic testing undertaken by the psychiatrist, an examination of learned writings in the field, the psychiatric observations of the patient’s presentation, a considered opinion about the patient’s psychiatric condition, the patient’s prognosis and any recommendations for treatment. The details into which an expert is required to descend, as a matter of expert evidence, was set out by the High Court in Dasreef Pty Limited v Hawchar.[5]
[5] (2011) 243 CLR 588
Meaning no disrespect to Dr Rigby, that level of detail was not undertaken by Dr Rigby in his letter. It seemed readily apparent that Dr Rigby was not asked to provide a detailed psychiatric assessment of the applicant in this case. That said, it was an enormously ambitious approach for the respondent to seek a stay of this proceeding in the absence of such psychiatric evidence. Dr Rigby’s 22 March 2018 letter was not adequate to support the legal contentions that the respondent urged.
In my view, the approach undertaken by the respondent was both premature and disproportionate. Curiously, the respondent’s approach in commending me to stay this proceeding had been formulated in writing ahead of the publication of my reasons on 5 April 2018. In paragraph 24 of those reasons, I said the following in reference to the then statement of claim –
In my view, the statement of claim should not be permitted to go forward. I will make an order to strike it out. But I refuse to make an order preventing another attempt to correct the current deficiencies. To accede to the respondent’s request in that regard would be quite wrong and wholly unjust. By a backdoor it would have the effect of stultifying the entirety of the applicant’s claim. I am not willing to do that at this stage. Such an order should not have been sought in the first place.[6]
[6] Krnjic v Bunnings Group Ltd [2018] FCCA 813, [24]
Those observations apply yet again. The respondent should not have sought an order staying this proceeding. Yet again, by a back door and with grossly inadequate evidence, the respondent attempted to stultify this claim. It should not be permitted to do so.
In her excellent written submissions, counsel for the respondent took me to a significant number of decided cases, along with rules of this and other courts of the Commonwealth of Australia that have addressed the issue of staying a proceeding on account of an applicant’s incapacity. In deference to Ms Nelson’s very helpful submissions, it is desirable to make some observations about those points.
The rules of court of most courts in Australia deal with persons needing a litigation guardian. Ms Nelson referred to div 9.6 of the Federal Court Rules. Strangely, she did not refer to div 11.1 of the Federal Circuit Court Rules as r 11 addresses matters relevant to a litigation guardian in the Federal Circuit Court of Australia. While it is true that in the absence of a specific rule in the Federal Circuit Court Rules on point it is permissible to incorporate the Federal Court Rules and apply the Federal Court Rules[7] that circumstance applies where the Federal Circuit Court Rules are silent on point. Here, they are not so silent on a particular point. In fact, div 11.2 makes express provision for litigation guardians. It was more pertinent for the respondent to have addressed the applicable Federal Circuit Rules rather than div 9.6 of the Federal Court Rules.
[7] See Federal Circuit Court Rules 2001, r 1.05
The starting point was r 11.08 of the Federal Circuit Court Rules. In essence, it provides in broad terms for the circumstances in which a person needs a litigation guardian in relation to a proceeding. Two circumstances are prescribed. The first is where the person does not understand the nature and possible consequences of the proceeding. The second is where the person is not capable of adequately conducting or giving instructions for the conduct of the proceeding. That rule differs from the equivalent in the Federal Court. In the Federal Court, a mentally disabled person, being one of several categories of person described as a person under a legal disability is a person who, because of a mental disability or illness, is not capable of managing the person’s affairs in a proceeding. Conversely, in the Federal Circuit Court of Australia, a person needs a litigation guardian in the two circumstances described above, namely, that person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting or giving adequate instructions for the conduct of the proceeding.
The question was whether the medical evidence demonstrated those elements. In my view, it did not. Dr Rigby stated in a very cursory manner that the applicant was not able to sustain the necessary activities of instruction and comprehension of the litigation. Aside from the fact that that statement was not a considered opinion and that it did not disclose Dr Rigby’s path of reasoning by which that conclusion was deduced, the statement itself did not address the elements of r 11.08 of the Federal Circuit Court Rules. That rule calls for evidence of the applicant not understanding the nature and possible consequences of the proceeding. Dr Rigby did not say as much. Dr Rigby stated the applicant was not able to sustain the necessary activity of comprehension involved in litigation. The relevant rule called for specific evidence about an applicant not understanding the possible consequences of litigation. Those consequences included the litigation process, the way the trial is likely to be conducted, the way the applicant is likely to be cross-examined, the stress and emotional strain involved in the court process, the likely personal toll the litigation process will exert on the applicant, as well as other matters. I did not construe Dr Rigby as contemplating each of those matters in his compendious reference to the applicant not being able to sustain the necessary activity of, among other things, the comprehension involved in litigation. Dr Rigby’s statement failed to dissect the elements recorded in r 11.08. For example, the applicant has previously appeared in court during an interlocutory mention of this case. That was an activity involved in litigation. No suggestion was made that the applicant did not realise he was in a court, that he was watching his own case or that he was aware of the fact that he was participating in the litigation process.
Dr Rigby also stated that the applicant was not able to sustain the necessary activity of instruction. The relevant rule addressed whether a person was not capable of conducting or giving adequate instructions for the conduct of the proceeding. That went beyond the issue Dr Rigby addressed. The rule spoke of a person “not being capable”. Dr Rigby said the applicant was “not able to sustain the necessary activity” of instruction. Those two concepts might be the same, although I cannot at this juncture offer a definitive view on the point. The rule introduced the phrase “adequately conducting or giving adequate instruction for the conduct of” the proceeding. Dr Rigby seemed to impose a blanket and unqualified view about the applicant’s instructions. But that was not the test for the purpose of the rule. The test involved an assessment of the applicant’s ability to adequately conduct a proceeding or an assessment of the applicant’s ability to give adequate instructions. Something less than a perfect ability was invoked. Dr Rigby did not speak of the applicant’s ability to provide adequate instructions. For example, he did not make any observations about the applicant’s ability to, say, telephone his solicitor, to read and understand emails, to confer, to provide input into court documents, to discuss tactics, to discuss witnesses, to process apparently inconsistent factual scenarios or to contribute to strategic decision making. As with most litigation, litigants have degrees of ability to undertake the steps involved. The degree of ability is the essence of r 11.08. It calls for an assessment of the adequacy of the person’s ability. Dr Rigby did not immerse himself into a consideration of that issue.
At an evidentiary level, it seemed to me that r 11.08 of the Federal Circuit Court Rules had not been engaged.
Ms Nelson’s review of the authorities on point was premised by a rather more generic consideration of issues concerning the appointment of a litigation guardian. To that extent, those authorities are useful, but only up to a point. No authority specifically concerning r 11.08 was cited. Instead, authorities from the Federal Court, from various state courts, and even international authorities were cited. Those authorities were of some utility, although they address different rules of court. My survey of them is set out below. But before addressing the authorities, it is useful to examine the statutory framework in which orders for the appointment of litigation guardians are conventionally made.
In the State of Victoria, the same rules govern litigation guardians in the Supreme Court as well as in the County Court. In both, the regime is prescribed by O 15. That order provides that –
A person under disability shall commence or defend a proceeding by the person’s litigation guardian.[8]
[8]Supreme Court (General Civil Procedure) Rules2015, O 15.02 (1); County Court Civil Procedure Rules 2008, O 15.02(1)
The definition of “person under disability” include a person called a “handicapped person” being a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity, of managing that person’s affairs in relation to a proceeding. The concept of managing the affairs of a party has equivalent concepts in O 15 as it does under r 11.12 of the Federal Circuit Court Rules. Whether the concept of ‘managing that person’s affairs in relation to a proceeding’, in O 15 equates to providing instructions for the purpose of r 11.08 need not be decided here.
In the County Court of Victoria O 15 is similar but not identical to O 15 in the Supreme Court as O 15.08(3) has been deleted in the County Court Rules. That said, the definitions of ‘person under disability’ and ‘handicapped person’ are the same.
In the Victorian Civil and Administrative Tribunal, O 4.02 makes provision for the appointment of the litigation guardian for a child.[9]
[9] Victorian Civil and Administrative Tribunal Rules2008, r 4.02
In New South Wales, r 7.13 and following of the Uniform Civil Procedure Rules address the circumstances a person under legal incapacity. A person under legal incapacity includes a person who is incapable of managing his or her own affairs. Under r 7.15 of the Uniform Civil Procedural Rules, a person may become the tutor of a person under legal incapacity without the need for any formal instrument of appointment or any order of a court. A person is eligible in New South Wales to be the tutor of a person under legal incapacity unless the tutor himself or herself is under legal incapacity or is a judicial officer involved in the administration of a court, or is a person with an adverse interest to the person under legal incapacity. In New South Wales the court can appoint or remove a tutor. In the case of appointing a tutor, evidence in support of the motion must include evidence that the person for whom the tutor will be appointed is a person under legal incapacity together with evidence that the proposed tutor consents to being appointed and does not have any interest in the proceeding adverse to the interest of the person under legal incapacity.
Importantly, in New South Wales a person under legal incapacity includes a person who is incapable of managing his or her own affairs. But that is an inclusive rather than an exhaustive definition.
In Queensland, ch 3 pt 4 of the Uniform Civil Procedure Rules 1999 addresses litigation guardians. In Queensland, unless a person is appointed a litigation guardian by a court, a person becomes a litigation guardian of a person under legal incapacity by filing the person’s written consent to being the litigation guardian in the proceeding. The court has power to appoint or remove a litigation guardian ‘if the interests of a party who is under legal incapacity require it’.
In South Australia, ch 5 of the Supreme Court Civil Rules speak of a ‘protected person’ and a ‘litigation guardian’. Rule 78 provides that as a general rule, a person under a disability, described as a protected person, may only take or defend proceedings through a litigation guardian having authority to represent the interests of the protected person. Rule 78(3) contains a provision that seemed to resonate with the submissions of counsel for the respondent in this case. That rule provides that a party to a proceeding who becomes aware that another party is a protected person and who is not represented by a litigation guardian must inform the court of that fact. Rule 79 makes provision for various categories of persons to be litigation guardians. They include parents of the protected person, the holder of an enduring power of attorney, the holder or other lawful authority to manage or administer the person’s affairs or a person appointed by the court.
The court has power of its own initiative to appoint or permit a person to act as a litigation guardian. In the District Court of South Australia, the position is largely identical because rr 78 and 79 of the District Court Civil Rules mirror rr 8 and 79 of the Supreme Court Civil Rules.
In the Australian Capital Territory, a person may become a litigation guardian of a person with a legal disability without the need for any formal instrument or appointment or order of the court. Unless the court appoints a litigation guardian, a person becomes a litigation guardian by filing an affidavit by the solicitor for the person with the legal disability stating that the person has agreed to be the litigation guardian, is an appropriate person to be the litigation guardian, and does not have an interest adverse to the interest of the person with a legal disability, together with the proposed written consent of the litigation guardian.
In Western Australia, a person under a disability is someone who, by reason of mental illness, defect or infirmity (howsoever occasioned) is declared by the court to be incapable of managing his or her affairs in respect of any proceeding to which the declaration relates. That is the effect of O 70 r 1 of the Rules of the Supreme Court. No order is necessary appointing a person to be a next friend or a guardian ad litem of a person under a disability. Under O 70 r 7 the court may of its own motion or on the application of a party or any other person remove a guardian ad litem and the court may stay a proceeding until a replacement guardian has been appointed.
In the Northern Territory a person may be a litigation guardian of a person under a disability if that person is not under a disability and he or she has no interest in the proceeding adverse to that of the person under a disability. Where a person becomes a person under a disability after the commencement of a proceeding, the court must appoint a litigation guardian to that party.
In Tasmania, an order of the court appointing a person to be a litigation guardian of a person under a disability is not necessary. A person authorised under the Guardianship and Administration Act is authorised to conduct litigation as the litigation guardian of a person under a disability.[10] Under r 295 of the Supreme Court Rules, if a person under disability does not have a litigation guardian, the court may appoint a person to be the litigation guardian so long as the proposed guardian consents.
[10] See, eg, Guardianship and Administration Act 1995 (Tas), s 25
From the foregoing survey it is readily apparent that the rules and procedures for the appointment of a litigation guardian vary very considerably from jurisdiction to jurisdiction. Having undertaken that survey, I have re-examined Ms Nelson’s submissions on the subject. It seemed to me that having re-read those submissions, it was necessary to consider them very carefully because judicial pronouncements from state to state and even in the Federal Court of Australia are based on rules of court that differ from the rules of the Federal Court of Australia, making the learning to be drawn from those other authorities of different importance and application.
So far as my analysis of each jurisdiction’s rules was concerned, none has a parallel to r 11 of the Federal Circuit Court Rules. In that rule, the element of a person not understanding the nature or possible consequence of the case is key. That consequence is of considerable veneration in the context of mental incapacity. In Gibbons v Wright,[11] Dixon CJ held as follows –
The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires in respect of every transaction a capacity in each party to understand the general nature of what he is doing by participating in that transaction.[12]
[11] (1954) 91 CLR 423, 437
[12] Ibid, 423
That formulation has been followed in Mackedie v The Public Trustee & Ors,[13] Angliss v Urquhart[14] and Bridgewater v Leahy.[15] In the Court of Appeal in Murphy v Doman[16] Handley JA also applied Dixon CJ’s formulation. The behaviour in court of a person might – I repeat might – call for the appointment of a litigation guardian and in such a case, the court has power to make such an order of its own notion as was canvassed in Kowalski v Bourne.[17]
[13] [1996] QCA 253
[14] [2002] NSWCA 256
[15] (1998) 194 CLR 457
[16] (2003) 58 NSWLR 51
[17] [2011] FCA 269
In this case, at no stage have I seen the applicant conducting himself in such a manner that I would be justified of my own motion appointing a litigation guardian.
Ms Nelson of counsel for the respondent relied on a collection of authorities that she contended contained general but all pervading statements of principle in this field of law and that I was required to follow them. In the passages below I have addressed the holdings of those authorities. But as to the concept that those authorities provide statements of general principle, let me point out that none address the rules of the Federal Circuit Court and instead all turned on their own facts and rules. That is not to say that this field of jurisprudence is not one of antiquity. It is. Persons with disabilities and litigation guardians have concerned the courts for centuries. For that matter, at one stage, a judicial officer known as the Master in Lunacy controlled a category of cases alongside the Master in Equity and the Master of the Rolls.
It must not be forgotten that a presumption of sanity applies unless and until the contrary is proved. The presumption harks back to the 18th century in Attorney-General v Parnther[18] and R v M’Naghten,[19] a point observed by Handley JA in Murphy v Doman.
[18] (1792) 29 ER 632
[19] (1843) 8 ER 718
In that last mentioned case, Handley JA held that the presumption of sanity means in modern terms that a person of full age is presumed to be capable of managing his or her own affairs. Ms Nelson referred to a decision of the English Court of Appeal in Masterman-Lister v Brutton & Co.[20] The rules under consideration in that case included a provision to the effect that a ‘person under disability’ meant a person who was an infant or a patient. Other rules provided that a person under a disability was not to bring or make a claim in a proceeding, except by his next friend and such a next friend or litigation guardian could only act through a solicitor. The case concerned a plaintiff who sustained very severe injuries in a motorcycle accident. In the course of examining whether the trial judge erred in his assessment of the plaintiff’s capacity to enter into a compromise of the litigation, the Court of Appeal made various observations concerning litigation involving persons with capacity issues. The case provides some useful indicators, the more relevant emanating from the judgment of Kennedy LJ having been extracted below. They were –
a)the jurisdiction of the court of protection is only exercised when, after considering medical evidence, a judge is satisfied as to a person’s incapacity;
b)all adults are presumed to be competent to manage their property and affairs unless the contrary is proved;
c)the burden of proof rests on those asserting incapacity; and
d)even where the issue does not seem to be contentious, a trial judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists.
[20] [2003] 1 WLR 1511
In the same case, Potter LJ and Chadwick LJ made other equally important observations. Among them were the following –
a)a person must have the necessary mental capacity if he is to do a legally effective act or make a legally effective decision, as has been held in such cases as Harwood v Baker,[21] Banks v Goodfellow,[22] In re Ball v Mannin,[23] Beaney, decd,[24] In re Durham v Durham[25] and In ReMB (Medical Treatment);[26]
b)the mental capacity required by law is capacity in respect of the transaction to be effected, as well as the capacity to understand the nature of that transaction when it is explained, citing in In re F (Mental Patient: Sterilisation);[27]
c)in re C (Adult: Refusal of Treatment),[28] Thorpe J put the proposition in terms of whether the person’s mental capacity was so reduced by chronic mental illness that he did not sufficiently understand the nature, purpose and effect of what was, in that case, a proposed amputation;
d)at common law, the question of capacity is issue-specific;
e)the pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity and the court is concerned not only to protect its own process but to provide protection of both parties to litigation who come before it and to that end, a defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend or litigation guardian;
f)the jurisdiction of the court exercised by the Crown as parens patriae in relation to persons who, by reason of unsound mind, were unable to manage their affairs or property ceased upon the commencement of the United Kingdom’s Mental Health Act 1959, relevantly translated to Australian circumstances, upon the commencement of legislation in most Australian jurisdictions governing guardianship and administration; and
g)while a person’s general capacity may be impaired, as it was In re C (Adult: Refusal of Treatment), by schizophrenia, the evidence in a given case may not establish that a person does not sufficiently understand the nature, purpose and effect of a relevant event, in that case, the amputation of a foot on account of gangrene.
[21] (1840) 3 Moo PC 282, PC, Moore 282
[22] (1870) LR 5 QB 549
[23] (1829) 6 E.R. 568
[24] [1978] 1 WLR 770
[25] (1885) 10 PD 80
[26] [1997] 2 FLR 426, CA
[27] [1989] 2 WLR 1025
[28] [1994] 1 WLR 290
Potter and Chadwick LJJ further held that the test to be applied was whether the party to legal proceedings (here the applicant) was capable of understanding with the assistance of such proper explanation by legal advisors and experts in other disciplines as the case required, the issue on which his consent or decision is likely to be necessary. Their Lordships further held that if the relevant person has capacity to understand that which he needs to understand in order to pursue or defend a claim, their Lordships could see no reason why the law – whether substantive or procedural – should require the imposition of a litigation guardian, following the Court of Appeal decision in Kirby v Leather.[29]
[29] [1965] 2 QB 367
May I respectfully say that I endorse all of the observations extracted above from Masterman-Lister v Brutton & Co, whether expressed by Kennedy LJ, by Potter LJ or by Chadwick LJ.
Importantly for this case I should catalogue the more pertinent matters on which I have concluded, based on the authorities thus far considered that the respondent’s application was forlorn. They are as follows –
a)the applicant enjoys the presumption of capacity as the respondent bears the onus of proving otherwise and it failed to discharge that onus in this case;
b)capacity is an issue-specific matter calling for an examination of capacity to undertake the specific task under consideration and even if a person’s mental fabric may be frail in the overall, with proper assistance that person may nevertheless have capacity to make considered decisions with the effect that the person can, in fact, manage his or her own affairs; and
c)in the absence of medical and other evidence demonstrating that the person does not have capacity to understand that which he needs to understand in order to pursue or defend a claim in court, no reason exists or procedurally, to impose a litigation guardian on a litigant, relevantly here, on the applicant.
Ms Nelson also relied heavily on the 2006 decision of the Full Court of the Federal Court of Australia in L v Human Rights and Equal Opportunity Commission, a decision of Black CJ, Moore and Finkelstein JJ. Among the many presently relevant matters for which that authority stands, one issue emerged on which the Full Court pronounced having a direct parallel to this case. It will be recalled that, in this case, the moment after I handed down my reasons for judgment on the respondent’s application to summarily dismiss this proceeding, counsel for the respondent (who by then had not even read let alone considered those reasons) rose to her feet, handed me a written submission on this stay application and launched into that application. At the time, the applicant’s solicitor was present yet it was readily apparent to me that the stay application was a considered strategic application well developed by the respondent and intended to overcome the possibility that I refused the respondent’s application for summary dismissal of the proceeding. In other words, this stay application had been the product of considerable thought, preparation, legal analysis and deliberateness. It was also readily apparent to me that the applicant had not had an equivalent opportunity to read, absorb, consider and respond to Ms Nelson’s written submissions.
That recital was relevant because in L v Human Rights and Equal Opportunity Commission the appellant (the applicant in the inferior court who had been ordered by the inferior court to not take any step in the proceeding until a litigation guardian has been appointed or psychiatric evidence obtained) complained on the hearing of a similar stay application that she was given inadequate notice of the basis of the stay application. In that set of circumstances, the Full Court in L v Human Rights and Equal Opportunity Commission held that the High Court’s decision in Commissioner of Police v Tanos[30] demanded compliance with the deep rooted principle of law that before a person can be prejudiced by a proceeding, he must be given an opportunity of being heard. In L v Human Rights and Equal Opportunity Commission upon the stay application being made, the inferior court gave the applicant one hour and 40 minutes to respond. The Full Court held that the appellant had in those circumstances been denied procedural fairness.
[30] (1958) 98 CLR 383, 395
In my view, the respondent brought this application with unseemly haste.
In debate with Ms Nelson I raised with her the inadequacy of medical information in this case and how she seemed to base her client’s application for a stay on little more than a throwaway line from an item of casual correspondence from a medical practitioner. I said I regarded that as incapable of providing a forensically maintainable and legally justifiable basis for adopting the course she urged me to take. Ms Nelson said detailed medical evidence was not required according to certain observations in L v Human Rights and Equal Opportunity Commission. The particular observations on which Ms Nelson relied emanated from paragraph 27 of the Full Court’s reasons to the effect that a court is entitled to rely on its own observations to make an assessment of a person’s capacity, citing paragraph 37 of Handley JA’s decision in Murphy.
In that paragraph of Murphy, Handley JA did not rely on any authority to support the proposition his Honour expressed. Beyond referring to that very paragraph in Murphy, the Full Court in L v Human Rights and Equal Opportunity Commission relied on a single judge decision in AJI Services Pty Ltd v Manufacturers’ Mutual Insurance Ltd.[31] In none of those cases did the respective courts address the very detailed examination of the subject that the UK Court of Appeal gave in Masterman-Lister v Brutton & Co, in which the court emphatically stated that medical evidence was required before appointing a litigation guardian as well as stating that a person’s overall impairment may be significant, yet the person may nevertheless understand matters adequately so as to manage his or her own affairs when properly explained. Naturally I am unable to state that I reject the Full Court’s observations in L v Human Rights and Equal Opportunity Commission at paragraph 27, yet I do observe that they do not align with the other observations extracted above about the need for medical evidence when a court is investigating a litigant’s capacity. In my view, there was no proper medical evidence in this case on which I could base an order staying the proceeding on account of the applicant’s want of capacity.
[31] [2005] NSWSC 709
Conclusion
In my view, the respondent failed in its application to stay this proceeding. I dismiss this application.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 19 June 2018
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