Manning v Russell

Case [2015] SASC 91

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 91

Application for judicial review

NICHOLSON J.        

Introduction

  1. 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

  2. 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

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Manning v Russell [2015] SASC 91
Case
[2015] SASC 91
Decision Date

CaseChat Overview and Summary

In the case of Manning v Russell, the dispute involved the competency of the plaintiff, Manning, to engage in litigation without the assistance of a litigation guardian. The case was heard in the Supreme Court of South Australia. The key issue before the court was whether Manning, who has a history of drug addiction, criminal behaviour, and diagnosed schizophrenia, lacked the mental capacity to participate in the litigation process. The court had to determine whether there was a real apprehension that Manning was a "person under a disability" as defined by the Rules of Court, which would necessitate an inquiry into her capacity to litigate.

The court examined the evidence presented, including a report from 1993, which the court deemed outdated and of limited relevance. The court acknowledged Manning's history of drug abuse and mental health issues but noted that she was currently represented by experienced counsel who had confidence in her capacity to give instructions. The court also considered the relatively straightforward nature of the litigation and the potential for Manning to understand the practical ramifications of the litigation.

In assessing the Crown's request for an inquiry, the court concluded that the evidence did not sufficiently support a real apprehension that Manning lacked the capacity to litigate. The court emphasized that the determination of capacity must be specific to the litigation in question and that Manning's capacity could vary depending on the circumstances. Given the plaintiff's representation by experienced counsel and the straightforward nature of the litigation, the court decided not to exercise its discretion to order an inquiry.

The court's decision was that no inquiry into Manning's capacity to litigate should be undertaken. This decision was based on the lack of substantial evidence to support a real apprehension that Manning lacked the requisite mental capacity, coupled with the plaintiff's representation by experienced counsel who had confidence in her ability to participate in the litigation process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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.