Manning v Russell
[2015] SASC 91
•17 June 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
MANNING v RUSSELL & ANOR
[2015] SASC 91
Judgment of The Honourable Justice Nicholson
17 June 2015
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PARTIES - OTHER MATTERS
The plaintiff is seeking, by way of judicial review, an order in the nature of certioriari, setting aside a decision of the Parole Board of South Australia to refuse her application for parole. The second defendant, by interlocutory application, seeks an order that, before entertaining the proceedings “the Court inquire into whether the plaintiff is a person under disability for the purposes of this action”. The second defendant seeks a further order that a person be appointed as a litigation guardian for the purposes of any such inquiry.
Held: The second defendant’s interlocutory application is dismissed. The evidence before the Court is not, in all the circumstances, such as to warrant an inquiry into whether the plaintiff may be a person under a disability with respect to her application for judicial review.
Correctional Services Act 1982 s66; Criminal Law Consolidation Act 1935 s15C, s134, s170, s269W; Mental Health Act 2009 (SA); Criminal Law (Sentencing) Act 1988 Division 2A; Supreme Court Civil Rules 2006 r78, r79, referred to.
Manning v Police [2015] SASC 49; Atkins & Anor v Atkins & Ors [2011] SASC 85; Hollidge v Pomeroy & Ors [2014] SASC 45; Slaveski v State of Victoria & Ors [2009] VSC 596; Dalle-Molle v Manos & Anor [2004] SASC 102, (2004) 88 SASR 193; Dunhill v Burgin [2014] 2 All ER 364; Murphy v Doman [2003] NSWCA 249, (2003) 58 NSWLR 51, considered.
MANNING v RUSSELL & ANOR
[2015] SASC 91Application for judicial review
NICHOLSON J.
Introduction
The second defendant, the State of South Australia, by interlocutory application (FDN 9) seeks an order “that the Court inquire into whether the plaintiff is a person under disability for the purposes of this action”. The second defendant also seeks an order that a person be appointed as litigation guardian for the purposes of such an inquiry. Whether or not the latter order might be made will depend, in the first instance, on whether or not I am satisfied that the Court should embark on such an inquiry. To this end, I heard submissions directed only to the a priori question. For the following reasons, such an inquiry is not called for in the circumstances of this matter or, at least, not called for at this stage.
Relevant history
The plaintiff by a second statement of grounds for judicial review, filed on 11 March 2015 (FDN 5) seeks, inter alia, an order, by way of certiorari, setting aside a decision of the Parole Board of South Australia, made on 30 October 2014, to refuse the plaintiff’s application for parole. The sole ground relied on is that the Parole Board failed to observe section 66(1) of the Correctional Services Act 1982.
It is necessary to outline a little of the background in order to place the plaintiff’s application for judicial review into context. The plaintiff was sentenced in the Magistrates Court on 1 April 2014 for the offences of serious criminal trespass in a place of residence, contrary to section 170(1) of the Criminal Law Consolidation Act 1935, and theft, contrary to section 134 of that Act. A term of 12 months imprisonment with a non-parole period of three months was imposed, both backdated to commence 5 March 2014 being the day on which the plaintiff was taken into custody. The plaintiff was eligible for parole on or about 4 June 2014. However, parole was refused and, as a consequence, the plaintiff continued to serve her sentence.
The plaintiff pursued an appeal against sentence, filed substantially out of time, which appeal was dismissed by me on 27 March 2015.[1] In the judgment dismissing the appeal I summarised[2] the plaintiff’s time in custody history with respect to the offending.
The appellant was eligible for parole sometime in June of 2014. However, parole was refused and, as a consequence, the appellant continued to serve her sentence. On 11 December 2014, an application for bail pending resolution of the appeal was heard and allowed in the Magistrates Court. However, the appellant was not immediately released on bail. Correspondence was entered into between the appellant’s solicitor, the Parole Board and the prison authority which canvassed the question of whether the appellant was entitled to be released at all and, if so, whether on parole or in accordance with the grant of bail. She was ultimately released on 15 December 2014 purportedly, that is, as far as the Parole Board viewed the matter, on parole conditions but also, arguably, subject to bail conditions. However, on 26 December 2014, she was returned to custody upon execution of a Parole Board warrant on the basis of an asserted breach of the parole conditions.
Following further representations from the appellant’s solicitor, the Parole Board revoked its previous order cancelling parole and the appellant was discharged from custody “insofar as all Parole Board orders or warrants are concerned with effect Friday 6 February 2015”.
[1] Manning v Police [2015] SASC 49.
[2] At [5]-[6] (footnotes omitted).
My dismissal of the appeal against sentence on 27 March 2015 meant that the plaintiff had to be returned to custody to complete her sentence. However, more serious events had intervened. It is alleged that, on 17 March 2015 and whilst on bail, the plaintiff had deliberately caused two fires inside a city residence in which four occupants were sleeping. The plaintiff has been charged with one count of arson and four counts of attempted murder. At first, she was compulsorily detained in the forensic mental health facility, James Nash House, pursuant to the provisions of the Mental Health Act 2009. However, as at the time I dismissed the appeal against sentence and as at the time I heard submissions on this application, she was being held at the women’s prison on remand for this latest alleged offending. It was common ground at the hearing of this application that there were no orders or directions in place under the Mental Health Act.
The plaintiff’s complaint in the judicial review proceedings is that, notwithstanding the more serious difficulties she now confronts and the fact that she is in custody on remand for more serious offending, she was unlawfully held in custody for a lengthy period during 2014 (a number of months) given that, as she maintains, she had an absolute entitlement to be released on parole no later than early July 2014.[3] The plaintiff was refused parole following the exercise of a discretion purportedly residing in the Parole Board. However, the plaintiff maintains that no such discretion arose in the circumstances of her case.
[3] If section 66(1) of the Correctional Services Act did apply to the appellant’s circumstances, parole should have been granted no later than 30 days after the day of expiration of the non-parole period, 4 June 2014.
Section 66(1) of the Correctional Services Act 1982 provides as follows.
(1)Subject to subsection (2), the Board must order that a prisoner who is liable to serve a total period of imprisonment of less than five years and for whom a non-parole period has been fixed be released from prison or home detention on parole on a day specified by the Board, being a day—
(a) where, because the commencement of the non-parole period has been back dated, the non-parole period expires prior to the date on which it is fixed, not later than 30 days after the day on which it is fixed; or
(b) in any other case, not later than 30 days after the day on which the non-parole period expires.
Subsection (2) provides for various exceptions to the general rule in subsection (1). One such exception[4] applies where any part of a person’s imprisonment “is in respect of an offence of personal violence”. Relevant to the present matter, “offence of personal violence” is defined to include “a home invasion”.[5]
[4] Section 66(2)(ab).
[5] Section 66(3)(b).
The notion of a “home invasion” is statutorily defined for some purposes. For example, “home invasion” is defined for the purpose of its inclusion as a “category A serious offence” within Division 2A of the Criminal Law (Sentencing) Act 1988. The term “home invasion” is also defined for the purpose of section 15C of the Criminal Law Consolidation Act 1935 (which deals with the requirement of reasonable proportionality in the case of the defence against home invasion). However, “home invasion” is not defined for the purpose of section 66 of the Correctional Services Act.
The offence of serious criminal trespass in a place of residence can, by force of the relevant statutory definitions, constitute a home invasion for the purpose of both Division 2A of the Criminal Law (Sentencing) Act and section 15C of the Criminal Law Consolidation Act. However, where the offence is committed in the absence of a person lawfully present in the place of residence (as was the case here) it does not appear to constitute a “home invasion” for the former purpose.
The circumstances of the offence committed by the plaintiff, placed her offending very much towards the low end of the scale for this type of offence. In essence, she entered unoccupied residential premises through an unlocked door, stole some items and left the same way. On the Crown case this was a “home invasion” and, therefore, within the definition of “an act of personal violence”. The plaintiff maintains that the offence, as committed, is not to be characterised as a “home invasion” for the purpose of section 66.
The essence of the plaintiff’s application for judicial review raises a straightforward, although not necessarily easy, point of statutory construction. It is true, that if the plaintiff were to succeed with her argument that the offence that she committed did not constitute a “home invasion” and therefore did not constitute an “offence of personal violence” for the purpose of section 66(1), the matter would not end there. The plaintiff’s application for an order by way of certiorari or for declaratory relief having the effect, arguably, of rendering invalid the Parole Board’s decision to refuse parole and to keep the plaintiff in custody, is no doubt a first step in a claim for compensation.[6]
The nature of an inquiry into whether the plaintiff is a person under a disability for the purposes of the action
[6] One of the orders sought by the plaintiff in her second statement of grounds is an order for damages. The second defendant maintains that the plaintiff has not pleaded any cause of action capable of supporting relief in the form of damages (response to second statement of grounds (FDN 8) at 4.4). This is a controversy I do not need to enter upon at this stage.
The problem of representation of a party to litigation who is under a disability is addressed by the rules of court. Rule 78 of the Supreme Court Civil Rules 2006 is in the following terms.
78—Representation of party under disability
(1)As a general rule, a person under a disability (a protected person) may only take or defend proceedings through a guardian who has authority to represent the interests of the protected person (a litigation guardian).
Exception—
The Court may, however, permit a protected person to act personally in bringing, or taking any step in, proceedings.
(2)The litigation guardian is responsible for the conduct of the proceedings on behalf of the protected person and may take any step in the proceedings and do anything else that the protected person might have done if of full age and capacity.
(3)A party who becomes aware that another party is a protected person and is not represented by a litigation guardian as required by this rule must inform the Court of that fact.
(4)A judgment or proceeding of the Court is not invalid because a party was not represented by a litigation guardian as required by this rule, but the Court may set aside the judgment or proceeding if satisfied that the party has been substantially prejudiced through the lack of such representation.
The notion of a “person under a disability” is defined in Rule 4. Relevant to the present application is paragraph (c)(ii) of the definition; a person under a disability includes.
A person who is not physically or mentally able –
(i)...
(ii)to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others).
Subrule 79(3) provides.
The Court may, on application by an interested person or on its own initiative, permit or appoint a suitable person to be a protected person's litigation guardian.
The power under subrule 79(3) is predicated on it first being established that the litigant or proposed litigant in question is a “protected person”. It is not the case here that the second defendant is a party who has become aware that the plaintiff “is a protected person and is not represented by a litigation guardian”. As such, the second defendant’s interlocutory application is not to be seen as the second defendant informing the Court of that fact in compliance with the obligation imposed by subrule 78(3).
However, the authorities in this Court have adopted the position that where a party believes that another party is or has become a person under a disability the correct procedure is to apply for an inquiry to be conducted by the Court to determine whether or not that is in fact the case.[7] In Atkins & Anor v Atkins & Ors[8] his Honour Judge Lunn, a Master of this Court, made the following observations.
I consider that the correct procedure is that laid down in Atkin’s Court Forms Second Edition Volume 26, 1992 Issue at page 14 where it is stated:
Where it is unclear whether a party to litigation is a mental patient the court may, on application by the other party, by the party himself or by a person acting as next friend or guardian ad litem for the purpose of this application alone, order an inquiry to be made in the proceedings to determine whether he is in fact a patient within the meaning of RSC Order 80 and accordingly requires the appointment of a next friend or guardian ad litem if proceedings are to be continued. This inquiry is normally heard before the master who can compel the attendance of witnesses (including medical attendants and the plaintiff or defendant himself) and the production of documents.
[Citations of authority omitted][9]
A subsequent paragraph in that Edition of Atkins also states that the Court can direct the Official Solicitor to inquire into whether a party to litigation is the equivalent of a person under disability and report to the Court. However, there is no equivalent at the present time in this State of such an Official Solicitor and so that option is not open in this matter.
I consider that the course which should be adopted in this matter is that if the plaintiffs wish to ensure that the second defendant will be bound by any judgment or settlement they should apply for an inquiry by a Master of the Court as to whether the defendant is a person under disability for the purposes of this action.[10] If the Court makes the order for the inquiry, directions will then be given about how the inquiry is to proceed, which may include directions about disclosure of documents and medical examinations.
[7] See generally, Atkins & Anor v Atkins & Ors [2011] SASC 85 and Hollidge v Pomeroy & Ors [2014] SASC 45.
[8] [2011] SASC 85 at [9]-[10] (emphasis added).
[9] This passage does not appear in the current edition of Atkins Court Forms, apparently because of a change in the legislation in England. However, the Rules and inherent jurisdiction on which it appears to be based seem to be generally equivalent to those now applicable in this State.
[10] It is for the plaintiffs to decide whether to take this step, as if the second defendant is found not to be a person under disability there could be adverse costs orders made against the plaintiffs on the application.
I am at the stage, not of embarking on any such inquiry but, of determining whether, following the second defendant’s request, an order for such an inquiry should be made. No authority has been drawn to or has come to my attention which sets out the appropriate test for this threshold issue. It cannot be the case that such an inquiry should be embarked upon merely upon the request of another party who, ordinarily, will be opposed to the interests of the party into whose capacity they want the Court to inquire. By too readily acquiescing in any such request the Court will risk arming an adversary with an unwarranted forensic opportunity which might serve to unfairly increase the expense and complexity of the litigation for their opponent.[11]
[11] There is absolutely no suggestion in this matter that the second defendant, by raising the issue, is other than properly motivated and endeavouring to fulfil what it understands to be its duty to the Court.
In seeking an answer to this question it is helpful to explore briefly the approach to be adopted when, in fact, undertaking an inquiry into whether or not a party is under a disability in the sense identified in paragraph (c)(iii) of the Rule 4 definition.
Bearing in mind that close attention needs to be paid to the relevant definition in this Court’s Rules, the discussion by Kyrou J in the Victorian Supreme Court decision of Slaveski v State of Victoria & Ors[12] is, with respect, of assistance.[13]
[12] [2009] VSC 596.
[13] See paragraphs [25]-[33] (citations omitted).
There is a presumption that a person of full age is capable of managing his or her own affairs,5 which must include the management of litigation to which he or she is a party. The person who alleges the contrary bears the onus.
There is no universal test for determining whether a person is capable of managing his or her affairs. Lack of capacity is usually denoted by a person’s inability to understand the nature of an event or transaction when it is explained. In relation to litigation in which a person is a party, the person must be able to understand the nature of the litigation, its purpose and its possible outcomes, including the risks in costs.
The words “in relation to the proceeding” in r 15.01 are important because they focus on the person’s ability to bring or defend a particular proceeding rather than on whether the person is able to manage his or her affairs generally or in relation to some other transaction. As Chadwick LJ observed in Masterman-Lister v Brutton & Co: “The test is issue specific; and, when applied to different issues, it may yield different answers.” Accordingly, the fact that a person has been involuntarily admitted to a psychiatric facility under mental health legislation is not conclusive proof of incapacity under r 15.01, but it may be relevant to an assessment of such incapacity.
The question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties. A person can have the requisite capacity for one proceeding and lack it for another.
Where a person is a party to a proceeding and is legally represented, he or she will be incapable of managing his or her affairs in relation to the proceeding if he or she does not have the mental capacity to understand the nature of the acts or transactions in respect of which he or she needs to give instructions to the lawyer.
In Owners of Strata Plan No 3007 v Cross, Edmonds J identified the following factors as relevant to determining whether one of the parties in that case (who was able to be legally represented) was a “person under disability”:
(a)whether the person had the ability to understand that he or she required advice in respect of the relevant legal proceeding;
(b) whether the person had the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, whether he or she could arrange such an appointment of his or her own accord;
(c)whether the person had the ability to instruct the advisor with sufficient clarity to enable him or her to understand the situation and to advise the person appropriately; and
(d)whether the person had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as might be received.
Where a person is a self-represented party to a proceeding, the level of mental capacity required to be a “capable” litigant will be greater than that required to instruct a lawyer because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.
In my opinion, where a plaintiff is self-represented, the following issues are potentially relevant in determining whether he or she is a person under disability for the purposes of r 15.01 of the Rules:
(a)-(m) … .
A self-represented person who is incapable of continuing to act as his or her own advocate is not necessarily incapable of managing his or her affairs in relation to the relevant proceeding, as that person may be capable of retaining legal representatives to continue to conduct the proceeding.
Contested applications for the appointment of a litigation guardian are not particularly common. However, when they do arise they, more often than not, arise with respect to the asserted disability of a self represented litigant.[14] It is unusual for the matter to be raised by a party with respect to an opposing party who is legally represented. In this case, the plaintiff is represented by a solicitor instructing himself as counsel who is an experienced litigator, particularly in the criminal law.
[14] Hollidge v Pomeroy & Ors [2014] SASC 45; Atkins & Anor v Atkins & Ors [2011] SASC 85 and Dalle-Molle v Manos & Anor [2004] SASC 102; (2004) 88 SASR 193, in this State, all concerned a litigant in person as did Slaveski v State of Victoria & Ors [2009] VSC 596.
The question before me is not that which was before Kyrou J in Slaveski, that is, whether or not to make the order but only whether or not I should exercise the discretion open to me, either under the Rules or pursuant to the inherent jurisdiction of this Court, to order that an inquiry into this question be undertaken. I take the view that before exercising this discretion, I need to be persuaded by the second defendant that in the context of this matter and on the basis of such evidence available and relied upon, I have a real apprehension that the plaintiff may be a “person under a disability”, as defined.
The evidence
I turn to identify the evidence or otherwise common ground that is before the Court and relied on by the parties.
A brief summary of the personal circumstances of the plaintiff formed part of my reasons for dismissing the appeal against sentence,[15] the content of which I understand to be common ground.
The appellant is indigenous, is 41 years old and has had a very difficult past, dominated by her longstanding and serious drug addiction. As the Magistrate acknowledged, the offending in question was “very much drug driven”. She went to her drug dealer to obtain drugs but the dealer was not prepared to extend credit. It was indicated that, if she could provide certain items, she would be supplied with drugs. The appellant stole the items in question and presented them to the drug dealer. She admitted being aware that the victim’s house in the city was unoccupied. The backdoor was unlocked and the appellant had entered the house on a number of occasions to steal.
The appellant has been a regular abuser, for many years, of alcohol and a range of illicit drugs, including cocaine. She was diagnosed with schizophrenia in 1999 and has received regular depot medication for this condition over a number of years. According to the author of a bail enquiry report, dated 7 March 2014, which was before the Magistrate, the appellant appeared, at that stage, to be compliant with her recommended treatment.
The appellant has struggled to retain stable accommodation mostly because of her behaviour and failure to comply with the requirements of various supportive accommodation providers. Notwithstanding substantial efforts by government and non-government agencies and an enormous amount of goodwill on the part of caseworkers, the appellant, with her multiple, quite severe, problems, remains a person whom it is extremely difficult, if not impossible, to accommodate and assist appropriately within the system. One of the appellant’s homelessness caseworkers, who has taken some time to obtain an understanding of how the appellant thinks and operates, has formed the view that the appellant, where she can, uses incarceration as a form of respite care when she is not coping and is without stable accommodation.
The appellant has a very significant criminal history and, notwithstanding that her circumstances engender enormous sympathy, she is a woman who is capable of causing great harm and distress to other members of the community through her repeated offending. However, it should be noted that her criminal record discloses minimal, if any, conduct involving violence. Her criminal record comprises, in the main, numerous public disorder offences, failures to comply with court orders, drug offences, offences involving breaking and entering and dishonesty based offences. She has spent many periods of time in prison and has had the benefit of many suspended prison sentences. As an indication of the scale of her offending, the offender history record dated 31 December 2014, which spans the period 1992 until the date of the Magistrate’s sentence in this matter (1 April 2014) contains in excess of 70 separate date entries, the majority of which date entries refer to multiple offences.
[15] Manning v Police [2015] SASC 49 at [15]-[18] (footnote omitted).
The second defendant principally relies on the affidavit of Glenys Madigan together with exhibits GM1-GM9 sworn 9 April 2015. Ms Madigan holds the position of senior administrative officer at the Parole Board of South Australia and her duties include providing administrative services and maintaining the files of the Parole Board. The affidavit exhibits a number of documents setting out information concerning, in part, the historical interactions between the plaintiff and the justice system.
The only expert psychological or psychiatric evidence exhibited is a psychometric evaluation dated 6 January 1993 by a Ms Robyn Freeman (exhibit GM1). Ms Freeman would appear (by reference to the two and a half page report) to have been at the time a forensic psychologist. In 1993, at the time of evaluation by Ms Freeman, the plaintiff was 19 and in custody in the Northfield Women’s Prison. The report commences with some limited background information and a description of psychometric testing undertaken.
Under the heading “Observations during Testing” Ms Freeman recorded:
[The plaintiff] presented as a quite, neatly dressed woman. [The plaintiff] was co-operative and attempted all tasks presented to her in the course of the assessment. Her attention and concentration were good throughout the assessment and her persistence with difficult tasks was noteworthy.
Under the heading “Test Results” Ms Freeman recorded:
[The plaintiff’s] result on The Queensland Test places her general cognitive ability somewhat above average at the sixth decile when compared with other Aboriginal women her age.
Her comprehension of the requirements of the tasks was good however her short-term memory was below average when compared with other Aboriginal teenagers.
The result from [the plaintiff’s] performance on the Raven’s Coloured Progressive Matrices is quite different from her result in the Queensland Test as it fell below average in the borderline area between 75 and 80 I.Q. points. The errors made were mainly of the most common type which was the result of incomplete perception and reasoning. She also tended to rely on applying old solutions to new problems. This result suggests that [the plaintiff] has difficulty applying reasoning to a new situation because she tends to make errors due to incomplete evaluation of the circumstances.
Under the heading “Summary” Ms Freeman recorded:
Overall [the plaintiff] has above average cognitive ability, however her current level of intellectual functioning is quite different from her actual intellectual potential and appears to fall within the developmental vicinity of a nine year old western child.
The patterns of her results suggests that whilst [the plaintiff] has little difficulty solving problems of a concrete, visual nature involving the manipulation of materials, the process of abstract, analogous reasoning such as is needed in social situations is far more difficult for her.
In practical terms [the plaintiff’s] ability to reason clearly adapting past experiences to current situations falls well below that expected for her age and intellectual capacity. Whilst she may have little or no difficulty working through problems presented to her in a rational fashion and appears quite intellectually alert, her results suggest that her ability to interpret more symbolic, abstract problems is quite limited and immature.
(Emphasis added.)
The affidavit of Ms Madigan also exhibits a number of presentence reports prepared by employees of Community Corrections which, in general, describe the plaintiff’s circumstances in a manner consistent with that which one would expect for an indigenous woman who suffers from schizophrenia (which has been treated and managed from time to time) ongoing drug addictions and a significantly deprived upbringing and background. Of course, these documents have been written from a perspective of trying to understand the plaintiff’s criminogenic risk factors and needs with a view to assessing appropriate sentencing regimes given her repeated criminal offending. Typical of the sentiments expressed is the following.
[The plaintiff’s] lack of stable accommodation, ongoing problematic substance abuse, mental health difficulties, poor management of her finances, and lack of consistent engagement with specialist agencies and previous care plans to address her welfare needs all appear to have contributed to her risk of reoffending.
Exhibited to the affidavit are a number of hand written letters from the plaintiff herself addressed to the Parole Board and a number of Parole Board minutes and other documents.
The plaintiff read and relied upon an affidavit sworn by her legal counsel on 24 April 2015. Counsel deposed to a number of matters concerning his professional relationship with the plaintiff both in connection with the appeal against sentence and the present judicial review proceedings. He expressed the opinion based on his observations and dealings with the plaintiff that she was able to provide him with instructions concerning the judicial review proceedings and that she appeared to him to have an understanding of the issues and a capacity to exercise her rights.[16]
[16] The terms of counsel’s affidavit in this respect were, in fact, “I consider that the plaintiff is able to give instructions concerning the within proceedings, has an understanding of the issues in respect of the proceedings, is able to exercise her rights in respect of the proceedings and is mentally fit for trial”. Counsel for the second defendant did not object to the inadmissible aspects of this statement but submitted I should have regard to counsel’s lack of relevant expertise with respect to the weight I might give the asserted propositions. I have done so and reformulated the propositions as set out in the text.
Counsel also identified his considerable experience over the years with clients who have been mentally unwell and the fact that he has on a number of occasions exercised the power available pursuant to section 269W of the Criminal Law Consolidation Act 1935 to make decisions in circumstances in which a client is mentally impaired and unfit to stand trial. Counsel was not suggesting that this is such a case only that he is aware, through experience, of his obligations and the criteria to be satisfied before such a power is exercised in order to make decisions on behalf of such a litigant.
Counsel indicated that he took a cautious approach and was cognisant of the need to form an assessment of a client for the purpose of determining their ability to participate in proceedings and to give instructions. During the period of this practitioner/client relationship (which commenced in July 2014) counsel has assessed the instructions received to have been coherent and appropriate. Counsel had satisfied himself that the plaintiff was able to participate in the present legal proceedings to the extent that would be required, to follow the proceedings, to follow his advice and to make an informed decision about her procedural and substantive rights.
Counsel also referred to the plaintiff’s extensive criminal antecedent report (which was before me at the hearing of the sentence appeal) and, in effect, submitted that it contains no indication that the plaintiff, in the past, has been found unfit to stand trial or has pursued a mental impairment defence. This has been so notwithstanding her longstanding diagnosis and treatment for schizophrenia.
In this latter respect, it was common ground that no community treatment order under the Mental Health Act was in place and that it could be inferred that the prison authorities will supervise the plaintiff’s treatment regime whether it involves medication delivery by depot or otherwise.
Consideration of the request to inquire
The plaintiff has an extensive criminal history, an extensive history of antisocial behaviour, an extensive history of drug abuse probably involving addiction, and a history of diagnosed but treated (from time to time) schizophrenia. She is a, perhaps extreme, example of persons often encountered in the criminal courts in this State.
Notwithstanding this, there is little evidence before the Court to suggest that the plaintiff does not have the capacity to be a plaintiff and to engage in relatively straightforward litigation with the assistance of experienced counsel. In this respect, I am concerned with whether there should be an inquiry into the question of whether she is physically or mentally able “to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others)”.[17]
[17] Paragraph (c)(ii) of the definition in Rule 4.
The affidavit evidence relied on by the Crown is of little assistance. The report of Ms Freeman was prepared in 1993 when the plaintiff was 19 years old. For this reason alone, it would carry very limited weight if one was attempting to assess the plaintiff’s capacities at the age of 41. In addition, I daresay that there have been significant changes over the last 20 years or so in our understanding of the influence of cultural factors on such psychometric testing. For these reasons I place little weight on Ms Freeman’s report. However, if anything, her conclusions (as set out earlier) lend support to the proposition that the plaintiff has a greater intellectual capacity and potential than she was evidencing at the time of the testing. None of the other exhibited materials advance the Crown position to any material extent.
This, limited, state of the evidence, has to be considered in the context of the following matters.
(i)The question of disability, at least insofar as paragraph 3(ii) of the Rule 4 definition is concerned is issue specific. I agree with Kyrou J in Slaveski that:
the question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties. A person can have the requisite capacity for one proceeding and lack it for another.[18]
In my view, the judicial review proceedings as presently constituted are relatively straightforward. The challenges involved in instructing counsel to press all such legal arguments as may be available in favour of an absolute entitlement to parole are not great. It also would not be particularly challenging, in the event that the plaintiff were to succeed with this argument, for her to instruct, receive advice concerning and make decisions about any claim for compensation that might arise. The practical ramifications with respect to the costs of the litigation could be readily understood by a person such as the plaintiff in her circumstances.
(ii)I also accept that a person may lack sufficient capacity as a litigant in person but not necessarily as a represented litigant.[19] The plaintiff is presently represented by experienced counsel who has confidence in his client’s capacity to give instructions and who is prepared to take and rely on his client’s instructions in this matter. Furthermore, I accept that, at all material times, the plaintiff’s counsel has been aware of Rule 78 and the restrictions imposed with respect to the conducting of litigation by a person under a disability in the absence of an appointed litigation guardian. The fact that the plaintiff’s counsel in this matter has not sought the Court’s assistance in this respect and, indeed, is actively resisting the opponent’s application are matters to be taken into consideration when considering whether or not to hold an inquiry.
(iii)Ultimately, the onus rests with the Crown to raise a real apprehension.
[18] Slaveski v State of Victoria & Ors [2009] VSC 596 at [28] and see also, Dalle-Molle v Manos &Anor [2004] SASC 102; (2004) 88 SASR 193, Dunhill v Burgin [2014] 2 All ER 364; Hollidge v Pomeroy & Ors [2014] SASC 45.
[19] Slaveski; Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51.
I have had regard to the matters in (i)-(iii) essentially as the context within which I have assessed the available evidence. Ultimately, I am not persuaded to hold a real apprehension that the plaintiff may be a person under a disability with respect to the litigation presently in contemplation.
I, of course, make no finding as to whether or not the plaintiff is a person under a disability. It is sufficient that I am not satisfied that the circumstances warrant an inquiry into that matter. I dismiss the second defendant’s application. However, this would not necessarily prevent the second defendant from pressing a fresh application in the event that there were to be a significant change in circumstances.
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