Lewis v Doyle; Miles v Doyle; AA v PD

[2023] NSWSC 1301

Supreme Court

New South Wales

Medium Neutral Citation:

Lewis v Doyle; Miles v Doyle; AA v PD [2023] NSWSC 1301

Hearing dates:

27 October 2023

Date of orders:

27 October 2023

Decision date:

27 October 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Application for adjournment dismissed.

Catchwords:

CIVIL PROCEDURE — application for adjournment — whether material establishes defendant under legal incapacity

Cases Cited:

Doyle v R; R v Doyle [2014] NSWCCA 4

Category:

Procedural rulings

Parties:

2018/200890:
Darren John Lewis (Plaintiff)
Phillip William Doyle (Defendant)

2018/204001:
Paul John Miles (Plaintiff)
Philip William Doyle (Defendant)

2021/155673:
AA (Plaintiff)
DD (Defendant)

Representation:

Counsel:
R Brown (Plaintiffs)
M Barbeliuk (by leave as judgment debtor’s attorney until he withdrew)

Solicitors:
Carroll & O’Dea (Plaintiffs)

File Number(s):

2018/200890
2018/204001
2021/155673

ex tempore JUDGMENT (revised)

1. In the three cases listed before me today, the matters of Lewis v Doyle, Miles v Doyle and AA v PD (PD is a reference to Mr Doyle), I am hearing motions filed on 6 December 2022 and 15 September 2023 in each case relating to the enforcement of the judgment that each of the plaintiffs, now judgment creditors, has obtained against the defendant, now judgment debtor.

2. As the transcript will show, when the matter was called at 10am there was no appearance for the defendant. I do not propose to go through all the circumstances in relation to that which have been recorded on the transcript of proceedings today, and which I reiterated when the defendant belatedly appeared at about 10.30am. I will simply record when there was no appearance at 10am, I stood the matter down to 10.15am. When there was no appearance at 10.15am I decided to proceed for the reasons I then gave.

3. When Mr Doyle, and the person who has his power of attorney, Mr Barbeliuk, appeared at 10.30am I was hearing from Mr Brown of counsel his submissions as to why I should make the orders sought.

4. Although no notice of motion had been filed, nor any affidavit in support, Mr Barbeliuk sought an adjournment of today's proceedings. He principally sought that adjournment, as I understood what he had to said, on two bases. The first basis was that they wished to have an adjournment for the purpose of securing legal advice. Insofar as I understood it, the second ground was that Mr Doyle was under a legal incapacity and required the appointment of a tutor.

5. During the course of Mr Barbeliuk's submissions, as the transcript will show, Mr Barbeliuk, of his own motion, elected to withdraw. I informed him that if he chose to take that course, I would not hear from him again, and I would not grant him leave to appear again. Notwithstanding my clear warning in that regard, Mr Barbeliuk chose to withdraw and handed the proceedings over to Mr Doyle.

6. Mr Doyle was given the opportunity to supplement what Mr Barbeliuk had said about why there should be an adjournment. However, notwithstanding my attempts to keep Mr Doyle on track as to matters relevant to an adjournment application of these motions, he insisted upon, in particular, attacking the judgment in favour of Mr Miles. I redirected him more than once to the topic that he was required to address, if he wished to address me, but he on each occasion reverted to his tirade, if I may put it that way, concerning Mr Miles. I acknowledge that when Mr Doyle was addressing me, two or three times he made a reference to, "We're going to eat some ice cream". I formed an impression that those stray comments were proffered in some sort of attempt to persuade me that he was mentally unsound in that he had raised such an irrelevant and inconsequential matter during solemn legal proceedings. My impression, so far as I could form one, was that this was a subterfuge for that purpose.

7. I should observe that there are three judgments in these cases, made by different judges of this Court in each case. I have been informed that all of them are listed for hearing in the Court of Appeal on 17 November 2023, subject to an interlocutory decision, as I understand it, of White JA. I should also record, by way of interpolation, that on 22 June 2023, amongst other orders, Griffiths AJA of the Court of Appeal dismissed an application for a stay of each judgment and refused an application that a tutor be appointed.

8. Returning then to the question of whether these proceedings should be adjourned, I record, as Griffiths AJA did in his judgment, that very frequently when the matter has come before the Court for different purposes Mr Barbeliuk has informed the Court that matters had to be adjourned, inter alia, to obtain legal advice. Indeed, it has been put to me in the current application, counsel, unnamed, is looking at the matter and is considering drawing summonses to seek leave to appeal from the interlocutory determinations of Yehia J and, apparently, Walton J who adjourned the case on 17 October at the request of Mr Barbeliuk. There has been no assurance provided as to when the unnamed counsel will be available. No direct access retainer agreement has been tendered. I must say, I confess to being somewhat sceptical as to whether any counsel has, in fact, been approached, let alone whether any counsel has, in fact, agreed to accept the brief. I make this comment because it has been a frequently mentioned ground for delay in these cases, as I have said.

9. I repeat, the second reason for the adjournment relates to whether Mr Doyle is under a legal incapacity. I should point out that no attempt has been made to comply with the rules in relation to an appointment of a tutor, just as no attempt had been made in that regard when the matter was before Griffiths AJA.

10. After reviewing all of the medical evidence, Griffiths AJA held the evidence did not establish that the judgment debtor was legally incapacitated. In arriving at this conclusion his Honour fully reviewed all of the factual evidence and the principles governing legal incapacity. His Honour held as follows:

“The issue of the appellant’s legal capacity is, of course, also raised in ground 2 of the three notices of appeal in the present proceedings, but that claim alone does not demonstrate that he in fact lacks legal capacity. It is merely an unsubstantiated assertion.” ([2023] NSWCA 140 at [64]).

11. His Honour made it quite clear that he did not regard the evidence that had been read as establishing incapacity, particularly when viewed in all of the circumstances of the case, including Mr Doyle's apparent capacity to renew the power of attorney given to Mr Barbeliuk on 21 July 2022. That document was accompanied by a certificate from a legal practitioner certifying that the judgment debtor "appeared to understand the effect of this power of attorney". His Honour was also concerned that there had been noncompliance with the requirements of the Rules in relation to the appointment of a tutor, a matter which inures before me. His Honour concluded (at [71]):

“For all these reasons, the Tutor Motions will be dismissed with costs. In the event that appropriate medical evidence is obtained which establishes that the appellant is under legal incapacity (and the other relevant requirements are addressed), appropriate steps can be taken to have the matter considered by this Court.”

12. The only change in the material before me for my review of the evidence in the case is the production of another report from Dr Dick Quan dated 3 October 2023. That report, I must say, is unsatisfactory in many respects, including the fact that it is directed to "to whom it may concern" rather than the Court, and it does not contain the certification that Dr Quan has read and agrees to be bound by the Code of Conduct. Leaving those matters to one side, it is apparent that Dr Quan has been asked to read reports of a Dr Tanveer Ahmed, a consultant psychiatrist, of 14 October 2022; and also of Dr Donald Rowe, a consultant neuropsychologist, of 3 December 2022.

13. Dr Quan has been the judgment creditor's treating GP since 7 July 2022. It is clear that Dr Quan is very substantially basing his opinion on Dr Ahmed and Dr Rowe's medical reports, because he says so in his conclusion numbered 1. He goes on to say, at conclusion 2, that he is of the opinion that Mr Doyle has remained under legal incapacity during the whole time that Dr Quan has been treating him. He says he does not have the cognitive skills to understand the proceedings he is involved in or to give competent legal instructions.

14. In my judgment, this report is not entitled to much weight. On my reading of Dr Ahmed's report, his opinion does not support the conclusion that Mr Doyle is under a legal incapacity; nor does the opinion of Dr Rowe. Both of these matters were before and considered by Griffiths AJA in his judgment to which I have already made reference. In particular, Griffiths AJA dealt with Dr Rowe's opinion at [48]-[50] of his judgment. I agree with his conclusion that Dr Rowe's report does not establish that the appellant is currently under a legal incapacity. In my judgment, the bare ipse dixit of Dr Quan to the contrary is not capable of carrying the day. With all due respect to Dr Quan, he is a general practitioner and not a specialist psychiatrist, gerontologist or neurologist. It also remains the case that no attempt whatsoever has been made to comply with the important procedural requirements of the rules in relation to the appointment of a tutor.

15. In my judgment, neither the assertion that legal advice and legal representation is required and available, nor the assertion that Mr Doyle is under a legal incapacity have been made good and neither assertion justifies a further adjournment of these proceedings.

16. I should add, as a final note, that, as the transcript shows, I raised with the parties the fact that I was a member of the bench in Doyle v R; R v Doyle [2014] NSWCCA 4. When I informed Mr Barbeliuk of that consideration he immediately said he needed an adjournment to get legal advice about whether I should disqualify myself. I explained, as the transcript records, my reasons for believing that my participation in that bench did not disqualify me from hearing these applications. Mr Barbeliuk was not able to articulate any ground upon which my participation in that matter would lead me to decide these applications other than in accordance with my sworn judicial duty. I adhere to the view I expressed, as recorded in the transcript, that having regard to the nature of the appeal, in particular, and the consideration that no occasion arose at any time to consider Mr Doyle's creditworthiness or otherwise that my participation in the hearing and determination of the appeal does not disqualify me from hearing these notices of motion.

17. For all of these reasons, the adjournment application is refused, and I will continue to hear the case.

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Decision last updated: 31 October 2023