LL & PL & SDP

[2005] FamCA 715

[2005] FamCA 715  JFLLPLSDP

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 78 of 2004
File No. SYF 3036 of 1996

IN THE MATTER OF:

LL

Applicant/Wife

- and -

PL

Respondent/Husband

- and -

SDP

Case Guardian

REASONS FOR JUDGMENT

BEFORE:  Finn, Coleman & Boland JJ
DATEOF HEARING:          11^th day of February 2005
DATE OF JUDGMENT:     4^th day of August 2005

APPEARANCES:                 Mr Lloyd of Counsel, (instructed by H.A. Miedzinski Solicitors) appeared on behalf of the applicant wife.

Mr Cook of Counsel, (instructed by P & A Lawyers) appeared on behalf of the respondent husband.

Mr Durston of Counsel, (instructed by Searle & Associates Solicitors) appeared on behalf of the Case Guardian.

Name of Appeal  LL & PL & SDP
Appeal Number  EA 78/2005
Date of Appeal hearing  11^th day of February 2005
Date of Judgment  4^th day of August 2005
Coram  Finn, Coleman & Boland JJ

Catchwords:   Application for Leave to Appeal orders dismissing the Case Guardian’s application for summary dismissal of orders sought by the respondent husband to dismiss his Case Guardian.

In order to satisfy the test for summary dismissal the Case Guardian obliged to satisfy the trial Judge that the husband could not demonstrate that he was no longer in need of a Case Guardian as a person not able to understand the consequences of the case or to adequately conduct a case - Aldred and Aldred; Westpac Banking Corp (1986) FLC 91-753 and Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 followed.

Contention that husband had no standing to apply to terminate the appointment of his Case Guardian rejected – The husband had standing as a “person” pursuant to Rule 6.10 - Drew v S (unreported, Young J in Equity, 13 March 2000) cited in support of that conclusion.

Challenge to adequacy of reasons for the trial Judge’s decision to dispense with the Family Law Rules 2004 to allow doctor’s report into evidence – Nature of the proceedings impacts upon the requirement of reasons – Her Honour’s decision was interlocutory and did not affect the parties’ final rights – Reasoning process was clearly discernible - Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 and Bennett and Bennett (1991) FLC 92-19 applied.

Challenge to the admissibility of the doctor’s evidence – Although not in accordance with those appearing in the Rules, the terms of reference of the doctor’s report did not render it irrelevant to the issue before the Court and thus was not inadmissible.

Application for Leave to Appeal refused
Parties at liberty to make written submissions with respect to costs

1. By application incorporated in an Amended Notice of Appeal filed 17 September 2004 the wife sought Leave to Appeal against orders made by Lawrie J on 9 July 2004 dismissing an application by the Case Guardian for the husband (“the Case Guardian”), for “summary dismissal of the husband’s application filed 29 April 2004”.  The application of the husband of that date sought “That the Order for the appointment of the next friend of the Applicant [husband] of … Accountant be discharged”.   

2. The husband resisted the wife’s Application for Leave to Appeal. 

3. The wife supported the application of the Case Guardian for summary dismissal of the husband’s application before Lawrie J.  Although the Case Guardian has not sought to appeal against Lawrie J’s refusal to summarily dismiss the husband’s application, before this Court the Case Guardian sought to support the wife’s application.  No issue having been taken with respect to the wife’s standing to seek to appeal against Lawrie J’s decision or the standing of the Case Guardian to be heard in support of the wife’s Application for Leave to Appeal, we say nothing about either of those matters.

BACKGROUND

1. Whilst it is clear that there has been a significant history of litigation between the husband and wife, it is necessary for present purposes to make only limited reference to that history. 

2. On 14 May 2003 the Case Guardian of the husband was appointed by order of the Family Court, albeit at that time, pursuant to the Rules then in force, the Case Guardian was styled the husband’s “next friend”. Orders for the appointment of a “next friend” for the husband had been made on a number of prior occasions.

3. On 9 January 2004 consent orders were made for settlement of property in the Family Court.  Such orders varied the terms of earlier orders for settlement of property.  The Terms of Settlement were executed on behalf of the husband by his Case Guardian. 

4. Issues have subsequently arisen in relation to implementation of the orders of 9 January 2004.  By his application filed 29 April 2004, the husband sought to have the appointment of his Case Guardian terminated.  The wife and the Case Guardian both opposed that application. 

5. It is less than clear when, and if so by what document, the Case Guardian sought summary dismissal of the husband’s application to discharge the appointment of his Case Guardian, although it is clear that on 9 July 2004 the Case Guardian sought such relief from Lawrie J.  Sensibly, having regard to the transcript of proceedings before Lawrie J, there is no issue in this Court that all parties were aware that Lawrie J was, on 9 July 2004, entertaining the Case Guardian’s application for summary dismissal of the husband’s application to terminate the appointment of the Case Guardian. None of the parties was in doubt that her Honour was entertaining such an application. No party objected to her doing so.

   THE RELEVANT LAW

6. There was sensibly no issue before this Court that the relevant orders made by Lawrie J on 9 July 2004 were “interlocutory” (see Hall v Nominal Defendant (1966) 117 CLR 423 at 443). As is clear from the terms of her Honour’s orders and her reasons for making such orders, all that her Honour did on 9 July 2004 was to decline to summarily dismiss the husband’s application for the removal of his Case Guardian. Her Honour’s orders did not mean that the husband’s application would be successful, but simply that it should be heard and determined on its merits. Her Honour’s orders did not finally dispose of the rights of the parties.

10.The law which governs the present application is not in doubt and does not require extensive re-statement. Following the decision of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, the Full Court of the Family Court in Rutherford and Rutherford (1991) FLC 92-255 said:

“As counsel for the husband rightly remarked there is not as yet any reported authority on the principles to be applied in granting leave under section 94AA(1). However, there are a number of authorities dealing with equivalent provisions in relation to the Federal Court of Australia and the Supreme Courts of the States. In our view, counsel rightly invited us to seek guidance in the remarks of the High Court in Adam P Brown Male Fashions Pty. Ltd. v. Philip Morris Inc. (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ as follows:-

“An interlocutory order for an injunction is a matter of practice and procedure. See McHarg v. Universal Stock Exchange Ltd [[1895] 2 QB 81 at 82]; Minister for The Army v. Parbury Henty and Co. Pty. Ltd. [(1945) 70 CLR 459 at 489]; White v. White [[1947] VLR 434 at 438].

Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd [[1978] VR 431 at 440]; on the other hand, De Mestre v. A.D. Hunter Pty. Ltd. [(1952) 77 WN (NSW) 143 at 146]. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in Im re the Will of F.B. Gilbert (dec.) [(1946) 46 SR (NSW) 318 at 323]:

‘...I am of the opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.’” ” (at 78,715 per Ellis, Nygh and Wilczek JJ)

THE PROPOSED GROUNDS OF APPEAL

11.In essence, the wife seeks to agitate three challenges to Lawrie J’s refusal of the Case Guardian’s application for summary dismissal.  We perceive such challenges to relate firstly to the standing of the husband to make an application to terminate the appointment of his Case Guardian, secondly to her Honour’s decision to dispense with the Family Law Rules 2004 (“the Rules”) to allow Dr D’s report to be received into evidence and thirdly to the admissibility of such evidence. Each of the wife’s contentions was supported by the Case Guardian.

12.Before considering the challenges sought to be raised by the wife with the support of the Case Guardian, it is appropriate to refer briefly to the law governing applications for summary dismissal.   

13.In Aldred and Aldred; Westpac Banking Corp (1986) FLC 91-753 Nygh J said at 75,491:

“The inherent jurisdiction of the Court is not confined to the dismissal of frivolous and vexatious proceedings in the strictest sense, but extends to the dismissal of actions “which must fail or which the plaintiff cannot prove and which is without a solid basis”: Halsbury's Laws of England 4th ed., vol. 37 Practice and Procedure, para. 435, citing Lawrance v Lord Norreys (1880) 15 A.C. 210 at p. 219 per Lord Herschell.”

14.In Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 Kirby J said at 544-5:

“The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:

1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided; [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418.

2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action [Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J] or in advancing a claim that is clearly frivolous or vexatious; [Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.]

3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. [Coe v The Commonwealth (1979) 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR at 5-7.] Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;

4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of a demurrer. [Coe v The Commonwealth (1979) 53 ALJR 403 at 409.] If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;

5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. [Church of Scientology v Woodward (1980) 154 CLR 25 at 79.] A question has arisen as to whether O 26, r 18 applies to part of a pleading. [ Northern Land Council v The Commonwealth (1986) 161 CLR 1 at 8.] However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim; and

6. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.”

15.The Family Law Rules 2004 provide (Rule 10.14) that the Court may “dismiss any part of the case” where an application is found to be “frivolous, vexatious or an abuse of process” (Rule 10.12(c)) or has “no reasonable likelihood of success” (Rule 10.12(d)). An application may be regarded as an abuse of process if it has no reasonable likelihood of success.

16.In our view an application for summary dismissal could be made to the Family Court pursuant to that Rule.

17.Nygh J referred to the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125 wherein His Honour said at 130:

“… in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

18.Nygh J regarded the test as being whether the “case for relief” on the “pleadings and assuming that all facts alleged … are true, is such that it cannot possibly succeed” (at 75,492).  We would respectfully endorse that formulation, particularly having regard to the caveat expressed by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (supra).  In the circumstances of the present case, in order to be successful the Case Guardian bore the onus of satisfying Lawrie J that, even if the evidence of Dr D was accepted, the husband could not demonstrate that he was no longer in need of a Case Guardian as a person who did not understand “the nature or possible consequences of the case” (Rule 6.08(1) Family Law Rules 2004), or was not capable of adequately conducting or giving adequate instructions for the conduct of the case. (See also Beck (2004) FLC 93-181).

THE HUSBAND’S STANDING TO APPLY FOR AN ORDER TERMINATING THE APPOINTMENT OF HIS CASE GUARDIAN

19.The husband’s standing to pursue his application filed 29 April 2004 was in issue before Lawrie J.  Her Honour concluded in that regard:

“There does not appear to be any special way in which the word ‘person’ is used.  There is no definition of person that I can see in the dictionary which appears at the end of the rules, and I think it must therefore bear its ordinary meaning ‘A person’, would include the husband.” (Judgment, paragraph 3)

20.Before this Court, it was submitted on behalf of the wife that “it was [the Case Guardian] and only [him] who at the date of the hearing before Lawrie J had the necessary locus standi to bring an application to remove himself.  This he did not do” (Appellant’s Summary of Argument, paragraph 4B). 

21.It was thus submitted that Rule 6.08(1) “qualifies” Rule 6.10.  The latter rule provides that:

“A person may apply for the appointment, replacement or removal of a person as the case guardian of a party.

Note 1    Chapter 5 sets out the procedure for making an Application in a Case (Form 2).

Note 2    An application in relation to a case guardian may be made by a party or a person seeking to be made the case guardian or by a person authorised to be a case guardian.”

22.Notwithstanding the primary submission to which we have referred, it was ultimately submitted on behalf of the wife that:

“… the only way the Husband could seek to remove … his case guardian, was to do so by using another case guardian to bring that application.  So in effect, there needed to be appointed a case guardian to bring an application on behalf of [the husband] to remove [the case guardian].” (Appellant’s Summary of Argument, paragraph 4F)

23.With great respect to the ingenuity of the argument advanced on behalf of the wife, we cannot accept, as a matter of construction, that her Honour erred in concluding that the husband had standing as “a person” to seek an order terminating the appointment of his Case Guardian.  Albeit for good reason, the appointment of a Case Guardian represents a substantial infringement of the fundamental legal rights of a citizen.  It is not difficult to envisage situations in which the continued appointment of a Case Guardian may become unnecessary or even inconsistent with the legitimate interests or legal rights of the person the subject of an order for Case Guardianship.  The Court appoints Case Guardians and must be vigilant to ensure that the appointment and regulation of the duties of Case Guardians are consistent with the underlying purpose of such appointments and the requirements of justice.

24.In Drew v S (unreported, Young J in Equity, 13 March 2000) Young J, in proceedings brought under the Protective Estates Act 1983 (NSW) for a declaration that a person was “incapable of managing her affairs”, said at 1-2:

“… the court does not look at this sort of case as ordinary adversarial litigation. The court’s duty is to see that if a person cannot look after her affairs, her affairs are properly supervised. On the other hand, the court must also make sure that a person who is capable of managing her affairs is able to conduct those affairs as she pleases, even though she may be wasteful to some extent. It is generally the right of every Australian to do what they like with their property.”

25.Those words fortify us in the conclusion we have reached with respect to her Honour’s construction of “person” in Rule 6.10. We see no reason to qualify the ordinary meaning of “person” in the Rules, and every reason to endorse Lawrie J’s conclusions in that respect. We are thus not satisfied that the first area of proposed challenge to her Honour’s decision has merit.

WHETHER HER HONOUR WAS ENTITLED TO RECEIVE EXPERT EVIDENCE WHICH DID NOT COMPLY WITH THE RULES OF COURT

26.Her Honour referred to the provisions of Part 15 of the Rules relating to expert evidence. Her Honour’s reasons reveal extensive references to those rules. Her Honour recorded (paragraph 18) in 23 dot points, the content of Dr D’s evidence.

27.Her Honour referred to the provisions of Rule 1.04 and Rule 1.12. The latter rule provides:

“Court may dispense with Rules

(1) These Rules apply unless the court, on application or its own initiative, orders otherwise.

(2) The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.

(3) In considering whether to make an order under this rule, the court may consider:

(a) the main purpose of these Rules (see rule 1.04);

(b) the administration of justice;

(c) whether the application has been promptly made;

(d) whether non-compliance was intentional; and

(e) the effect that granting relief would have on each party and parties to other cases in the court.”

28.She thus concluded:

“The affidavit should not be struck out on the basis of the non-compliance with the details of the rules, even though it has been sworn and filed since the new rules came in, and I would dispense with compliance with those rules to enable it to be used in proceedings in the Court.” (Judgment, paragraph 21)

29.It was submitted that her Honour erred in not providing “adequate reasons for not striking out the affidavit and report of Dr. [D]”. It was further asserted that:

“… by dispensing with the Rules, the situation now is that in these proceedings we have [the husband] representing himself and [the husband’s case guardian] also representing [the husband], a situation that the Rules do not allow for.” (Appellant’s Summary of Argument, paragraph 5A)

30.It was further complained that “inadequate reasons” were given for dispensing with the Rules.

31.We have earlier referred to the decision of Young J in Drew v S (supra). His Honour’s observations have relevance to this complaint. It is also relevant to have regard to the nature of the application before her Honour and to the law which governed it, to which we have earlier made reference. As the trial Judge was clearly aware (paragraph 22), there remained “testing the report” of Dr D. Her Honour was solely, and properly, concerned to determine whether, on the evidence upon which he relied, the husband’s application to terminate the appointment of his Case Guardian was doomed to fail.

32.It was submitted that the effect of her Honour’s decision was that “we now have two husbands”. The colourfulness of that submission is not matched by its merit. The issue for determination was whether or not the husband required the continuing appointment of a Case Guardian. That was, as her Honour correctly suggested, an issue of fact. There could only be one husband, the issue being whether the husband had the capacity to manage his own affairs or required a Case Guardian to do so for him. Put simply, it was one or the other, but could not be both.

33.Significantly, none of the submissions to this Court on behalf of either the wife or the Case Guardian suggested, at least within the context of the summary dismissal application, that any prejudice would flow to either of those parties if there was not a strict compliance with the Rules.

34.In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279, McHugh JA said:

“… without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as ‘a necessary incident of the judicial process’ because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.”

Soulemezis v Dudley (Holdings) Pty Ltd (supra) and other authorities were followed by the Full Court of this Court in Bennett and Bennett (1991) FLC 92-191. The Full Court there said (at 78,266):

“Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.”

35.The nature of the proceedings before the Court impacts upon the requirement of reasons for judgment (see Apps v Pilet (1987) 11 NSWLR 350; Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (No 2) (1990) 21 NSWLR 200; Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Australian Breeders Co-op Society Ltd v Jones (1997) 150 ALR 488; and Amadio Pty Ltd v Henderson (1998) 81 FCR 149). Extensive reasons were not necessary in the present case given that her Honour’s order was interlocutory and did not affect the final rights of the parties. To be sufficient, the reasons needed to adequately reveal the basis of her decision. There is no suggestion that her Honour was in error in formulating the law governing the application before her. She said of the evidence with respect to the doctor’s report “That is a matter for testing … but on the face of it, I do not see this as a matter for striking out the husband’s application on a summary basis” (Judgment, paragraph 22). Her reasons for not rejecting the evidence of Dr D were thus revealed. In our view, her Honour’s reasoning process was thus clearly discernable. In the circumstances of the case, no more needed to be said.

36.In our view, her Honour gave compelling reasons for dispensing with the Rules so as to enable Dr D’s evidence to be received. As her Honour was clearly aware, so doing could not operate to the detriment of the wife or the Case Guardian so far as the determination of the husband’s application on its merits was concerned. We thus do not perceive this complaint to have substance.

37.Her Honour had a discretion in relation to the application of the Rules. Nothing to which we have been referred demonstrates error in her Honour’s exercise of that discretion. The absence of any suggestion of prejudice to the wife or the Case Guardian as a result of her Honour’s decision to dispense with the Rules supports that conclusion. As her Honour was clearly aware, the objective of the Rules is to facilitate the dispensing of justice. To have rejected the evidence of Dr D, would, in our view, have been an unnecessary adherence to the Rules which would have benefited none of the parties and led to either an adjournment of the proceedings or a new application, no res judicata issue estoppel having arisen, supported by an affidavit of Dr D which complied with the Rules but said nothing different of substance.

38.The second proposed complaint thus lacks substance.

THE ADMISSIBILITY OF DR D’S EVIDENCE

39.It was submitted on behalf of the wife and the Case Guardian that the trial Judge erred either in allowing Dr D’s report into evidence, or by failing to give sufficient reasons for so doing. In considering the second proposed challenge to Lawrie J’s decision, we have dealt with the adequacy of her reasons for allowing Dr D’s evidence notwithstanding non-compliance with the Rules of Court. It remains to consider the challenges to the admission of the report based upon the rules of evidence.

40.Her Honour, in the 23 dot points to which we earlier referred (paragraph 18), summarised the content of the doctor’s report. It is clear from the doctor’s report that significant portions of the report were hearsay. Whether, and if so on what basis, such hearsay evidence might be received pursuant to the Evidence Act 1995 (Cth) was not tested before her Honour.

41.The conclusions in Dr D’s report appear to have been influenced in part by the hearsay material which his report contained. Whilst some of the hearsay contained in the report may not be admissible on any basis, it is apparent that Dr D interviewed the husband on two occasions in April 2004, each interview lasting about one hour and fifteen minutes.

42.In support of the first aspect of the present complaint, it was submitted that:

“… in summary Heydon JA in Makita’s case found inter alia, for evidence to be admissible as expert evidence the following requirements must be satisfied;

(1)To the extent that the expert’s opinion is based on facts observed by the expert, those facts must be identified and admissibly proved by the expert. To the extent that the opinion is based on assumed or accepted facts, they must be identified and proved in some other way.

(2)It must be established that the facts on which the expert’s opinion is based form a proper foundation for it.” (Appellant’s Summary of Argument, paragraph 5C)

43.In reliance upon R v Jenkins; ex parte Morrison (1949) VLR 277 it was submitted that the Court was “presented with conclusions without foundations for those conclusions, in admissible [sic] form” (Appellant’s Summary of Argument, paragraph 5F). Dr D, it was asserted, did not explain the basis of the theory or experience upon which the conclusions he stated rested.

44.In reliance upon Gibbons v Wright (1954) 91 CLR 423 it was submitted that Lawrie J had erred in allowing Dr D to give evidence of conclusions without the “foundation” for such conclusions. It was submitted that the failure to have in evidence “those foundation documents” rendered Dr D’s conclusions inadmissible. The documents thus complained of included affidavits by the husband’s son Christopher and a solicitor, both of whom Dr D spoke to by telephone, as well as medical reports previously prepared by three medical practitioners with respect to the husband.

45.On behalf of the husband, the Court was referred to a number of portions of Dr D’s report. It was submitted that those paragraphs were clearly admissible and provided a foundation for Dr D’s conclusions, without needing to rely upon the portions of his report which were hearsay.

46.It is instructive to have regard to Dr D’s report. The “REASON FOR REPORT” was said by Dr D to be:

“Whether or not [the husband’s] mental state at the present time presents any psychiatric factor that may substantially interfere with his mental capacity with respect to his direct participation in his court proceedings.” (Dr D’s report, quoting from Mr Garry Watts, solicitor)   

47.Whilst the terms of reference for Dr D’s report are not identical to those appearing in the Rules, at least for the purposes of the summary dismissal application before her Honour, the terms of reference for the report did not render the report irrelevant to the issue before the Court and, as such, inadmissible. Nothing submitted to this Court asserts otherwise.

48.As previously acknowledged, Dr D had a “clinical interview” with the husband on two occasions which, in total, occupied two and a half hours of interviews and observations. A “HISTORY OF CURRENT LEGAL CONTEXT” was taken from the husband, as was a “PSYCHIATRIC HISTORY”. It is apparent that the “PSYCHIATRIC HISTORY” was a recording of symptoms and feelings from time to time said to be experienced or exhibited by the husband.

49.Under the heading “MENTAL STATE DURING ASSESSMENT”, Dr D recorded his observations of the husband during clinical interviews and what he, in his professional opinion, considered to be the significance of such presentation. Dr D’s professional expertise has not been challenged in this Court or before Lawrie J.

50.Significantly, Dr D reported administering a “basic cognitive assessment”, the husband’s score in respect of which “suggests that his cognitive functioning is grossly within normal limits”.

51.Under the heading “PSYCHIATRIC FORMULATION”, Dr D set out his conclusions with respect to the husband’s capacity in a number of paragraphs. It is clear from reading those passages that Dr D did not regard the husband’s capacity as necessarily clear or without complication.

52.Dr D then proceeded to his “DIAGNOSIS ACCORDING TO DSM-IV”. The DSM-IV is a well known and authoritative publication (Diagnostic and Statistical Manual of Mental Disorders: DSM-IV-TR, 4^th ed, American Psychiatric Association, Washington DC, 2000). It was sensibly not suggested that Dr D’s failure to include the DSM-IV in his report was a matter of significance.

53.Dr D concluded his report with the heading “RECOMMENDATIONS REGARDING CAPACITY”. He there suggested that:

“… despite the presence of a distorted assessment of the outcome of legal proceedings and some disorganization of thinking, [the husband] appears to comprehend the important details of his situation and to understand the possible ramifications of choices available to him. His at times grandiose, impassioned and somewhat disorganized presentation do impair his functioning, however I do not believe that they prevent him from grasping and evaluating the facts of his case to the extent necessary to allow him to instruct a lawyer or participate in his own legal proceedings. It is my view that there is no psychiatric factor currently present which substantially interferes with his mental capacity with respect to his direct participation in his court proceedings.”

54.In our view, at least for the purpose of the application for summary dismissal before her Honour, the passages of Dr D’s report to which we have referred were admissible and constituted a sufficient identification of the facts upon which the opinion was based. It is apparent that the opinion expressed by Dr D was at least in part based upon statements made to him by the husband. A reading of the passages we have identified reveals that Dr D did not rely upon the truth or accuracy of such statements in exercising his professional judgment. A number of Dr D’s comments leave little room for doubt in this regard.

55.At least for the purpose of admissibility, the matters which we have identified provided a “proper foundation” for the expression of Dr D’s professional opinion. Having received into evidence those passages, it could not seriously be suggested that the application for summary dismissal of the husband’s application to terminate the appointment of his Case Guardian could succeed. The complaints sought to be agitated on appeal by the wife and Case Guardian are directed to the exclusion of Dr D’s report, rather than to the impact of such report on the summary dismissal application.

56.Lawrie J referred to the assertion that “the doctor relies on various matters that can be proved to be incorrect by evidence” and correctly recorded that:

“There is no evidence before me.  That is a matter for testing the report, but on the face of it, I do not see this as a matter for striking out the husband's application on a summary basis.”

Nothing to which we have been directed persuades us that her Honour erred in so concluding.

57.We thus do not see merit in this proposed challenge.

CONCLUSION

58.None of the proposed grounds of appeal being shown to have substance, the Application for Leave to Appeal should be dismissed.

COSTS

59.We have earlier referred to a number of somewhat unusual aspects of the current proceedings. As we apprehend it, the Case Guardian will seek to be reimbursed out of the property of the husband regardless of the outcome of this application. The costs implications of our decision are potentially less than straight forward. We accordingly propose directing that written submissions be made with respect to costs inter-parties and the costs of the Case Guardian before us.

ORDERS

1.That the Application for Leave to Appeal be refused.

2.That any party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal within 21 days of the date hereof.

3.That the other parties have a further 14 days in which to make written submissions in answer thereto.

4.That the first mentioned party have a further seven (7) days in which to make any written submissions in reply thereto.

I certify that the preceding
59  paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
 
Associate
Date: 04/08/05