Mirosevich v Mirosevich

[2025] NSWSC 490

Supreme Court

New South Wales

Medium Neutral Citation:

Mirosevich v Mirosevich [2025] NSWSC 490

Hearing dates:

15 May 2025

Date of orders:

15 May 2025

Decision date:

15 May 2025

Jurisdiction:

Equity

Before:

Hmelnitsky J

Decision:

Dismiss the amended notice of motion

Catchwords:

CIVIL PROCEDURE — Medical examinations —Whether a medical examination of the plaintiff should be ordered to determine capacity

Legislation Cited:

Succession Act 2006 (NSW), s 59

Uniform Civil Procedure Rules 2005 (NSW), r 23.4

Cases Cited:

Angius v Salier [2020] NSWSC 114

Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136

Wells (by his tutor McGuffog) v Hunter New England Local Health District [2018] NSWSC 1877

Yakmore v Handoush (No 2) (2009) 76 NSWLR 148; [2009] NSWCA 284

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Richard Mirosevich (Plaintiff)
Cynthia Mirosevich (First Defendant)
Dennis Mirosevich (Second Defendant)

Representation:

Counsel:
R Bianchi (Plaintiff/Applicant)
First and Second Defendants in person

Solicitors:
Glass Goodwin (Plaintiff/Applicant)

File Number(s):

2023/319670

Publication restriction:

Nil

JUDGMENT (EX TEMPORE, REVISED)

1. These proceedings concern the estate of the late Mladenka Mirosevich who died in September 2022 at the age of 81 years. The plaintiff and second defendant are her two sons. The first defendant is the wife of the second defendant.

2. The plaintiff propounds a will of the deceased made in 1992 together with a 1996 codicil. In the alternative he says that the deceased died intestate. The second defendant propounds a will made in 2016, however there is an issue as to whether the deceased had capacity to make that will. The second defendant also brings an application for further provision under s 59 of the Succession Act 2006 (NSW).

3. The presence of the first defendant, being the second defendant's wife and the daughter-in-law of the deceased, is explained by the fact that in 2016 a property was acquired in Corlette, NSW by the deceased and the first defendant as tenants in common in equal shares. There is an issue about the capacity in which the first defendant holds her share in the Corlette property.

4. The proceedings have been listed for a final hearing before me for three days commencing on 4 June 2025. The second defendant was represented by solicitors in the proceedings until about the end of June 2024. Since his solicitors went off the record it appears that there have been various delays in the preparation of the matter for hearing owing to the fact that the second defendant is unrepresented. Nonetheless, as I have already mentioned, the matter is listed for final hearing commencing 4 June and I was assured on a previous occasion that all of the material on which the parties rely for the purposes of that final hearing has been filed and served.

5. The present application is brought by the plaintiff. He seeks an order pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the second defendant submit himself to an examination by Dr Jane Lonie, a consultant neuropsychologist, so that Dr Lonie may prepare a report as to his capacity to understand and make informed decisions about the current and further issues in these proceedings and to conduct the proceedings on his own behalf.

6. The immediate impetus for the application was a series of emails from the second defendant in which the second defendant himself appears to raise concerns about his capacity to conduct proceedings without representation. For example, on 30 January 2025 the second defendant wrote to the Registrar in relation to an upcoming directions hearing which was listed for 5 February. In that letter he said:

"Attached is a medical certificate confirming that I have cognitive impairment due to a substantial growth that is displacing structures in my neck and affecting blood flow in my carotid artery.

For this reason I kindly request an AVL to attend the trial direction's proceedings on February 5.”

7. The attached medical certificate was dated 13 December 2024 and was from a doctor who was treating the second defendant for a benign growth in his neck. The report said:

“I am writing to inform the court regarding my patient's current medical condition and upcoming surgical procedure.

The patient has been diagnosed with a large benign nodular goitre. They are scheduled for thyroid surgery on 18 February 2025. Due to this condition, they are experiencing fluctuating cognitive symptoms including difficulties with concentration and word finding. These symptoms significantly impact their ability to participate effectively in legal proceedings at present.

Given the scheduled surgery and expected recovery period I recommend deferring any court proceedings until after March 2025. This will allow adequate time for post-surgical recovery and ensure they can participate fully in legal proceedings."

8. The plaintiff points to other material that, in his submission, shows that an issue has arisen as to the second defendant's mental capacity to conduct the proceedings.

9. The plaintiff originally brought this application in March 2025. The orders as originally sought contemplated that the second defendant would attend a consultation with Dr Lonie in sufficient time for her to prepare a report and for it to be considered well prior to the June hearing. It was contemplated that if Dr Lonie were of the opinion that the second defendant did not have capacity to represent himself in the proceedings then the court would at that point consider appointing a tutor to represent the second defendant in the proceedings.

10. The Notice of Motion was originally returnable before me on 11 April 2025. On that occasion I heard briefly from the parties and received some assurances from the second defendant that he was actively seeking to engage lawyers to represent him in the proceedings and that he understood the seriousness of the question being raised by the plaintiff. At that stage the first defendant was, as she had been throughout the proceedings, separately represented. There was an appearance on that occasion by her solicitor who I understood would be acting for the first defendant at the final hearing. It seemed to me at that point that it was likely that the second defendant would be represented at the final hearing and that there would, in any event, be a contradictor to the plaintiff's claims who was represented.

11. When the matter came back before me on 22 April 2025 there was an appearance, albeit only as a courtesy to the court, from counsel who informed me that he was likely to receive instructions to appear for the second defendant at the hearing. The second defendant agreed saying that he was in discussions with a solicitor who he hoped would agree to represent him in the proceedings and to instruct counsel.

12. On that basis I did not consider it appropriate to further consider the plaintiff's application and so I adjourned the Notice of Motion to the final hearing but gave liberty to apply for the plaintiff to bring the application on again if anything should transpire to upset the arrangement about which I was advised on 22 April. In fact, things did transpire. The second defendant has now informed the parties and the court that he was unable to reach an agreement with the proposed solicitor. As matters stand he will be unrepresented at the hearing commencing 4 June. It also transpires that the first defendant is no longer represented.

13. The plaintiff therefore has exercised liberty to apply and now presses for the relief already described, namely, orders for the second defendant to submit to an examination by Dr Lonie. However, the passing of time means that there is now no way that Dr Lonie can consult with the second defendant and provide a report in time for anything to be done ahead of the June hearing. That is not a criticism of the plaintiff. As mentioned the plaintiff brought the application promptly enough for it to be dealt with prior to the hearing. Nevertheless, rightly or wrongly, the current position is that any order for medical examination would necessarily mean that the June hearing dates would be lost.

14. No party seems troubled by this aspect of the matter. For the second defendant's part he says that he is waiting on the outcome of a complicated transaction whereby someone is proposing to draw credit against gold reserves held in the Central Bank of Bougainville which will allow funds to flow to him for the purpose of engaging lawyers. I am not sure what to make of that statement. It seems that the second defendant still has in mind that, if he is able to do so, he will instruct lawyers to represent him at the final hearing.

15. The court's power to order a party to submit to a medical examination is to be found in UCPR r 23.4. The expression "medical expert" in r 23 is defined in such a way as to include a psychologist such as Dr Lonie. Rule 23.4(1)provides:

23.4  Order for examination

(1) The court may make orders for medical examination including an order that the person concerned submit to examination by a specified medical expert at a specified time and place.

16. It has been held that a medical examination is within the scope of r 23.4 where the physical or mental condition of the person concerned is relevant to a matter in issue in the proceedings; see Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136 at 726 (Hodgson JA, Allsop P and Tobias JA agreeing) and Wells (by his tutor McGuffog) v Hunter New England Local Health District [2018] NSWSC 1877 at [46]. It has also been held that the r 23.4 power may be exercised where the question in issue is whether the plaintiff is capable of conducting proceedings, including with the assistance of legal representation: see Angius v Salier [2020] NSWSC 114. In that case Ward CJ in Eq (as her Honour then was), made orders that the plaintiff consult with Dr Lonie in circumstances where one set of hearing dates had already been lost and there was a fear that further hearing dates would be lost owing to the plaintiff's inaction, seemingly as a result of his mental incapacity to prosecute the matter in an appropriate way.

17. Although the plaintiff in the present proceedings and those who represent him are justified in having some concern about the second defendant's ability to represent himself in the upcoming hearing, I am not persuaded that it would be appropriate for the court to order the second defendant to subject himself to a medical examination. My reasons for reaching this conclusion are as follows.

18. First, although I have some concern about the second defendant's capacity to put forward his very best case without the assistance of lawyers, this is a case where the evidence has been filed and served and the matter is ready for hearing. Although lawyers may well be able to present the second defendant's case better than him, I am at least confident that the material on which the second defendant seeks to rely will be before the court.

19. Secondly, the specific material on which the plaintiff relies does not necessarily demonstrate that the second defendant is or will be unfit to conduct the hearing in June. I appreciate that the plaintiff's case does not go so far as to say that that material actually proves a lack of capacity. The plaintiff only says that it gives rise to a concern. Nonetheless I note that the correspondence that most squarely raises his fitness to conduct the proceedings was sent in the context of earlier interlocutory hearings and in the context of particular medical matters that arose at about that time. I do not read the material as necessarily shedding much light on whether the second defendant has any lasting incapacity.

20. Thirdly, I have real doubts as to whether it will be practically possible to identify a tutor who is prepared to act for the second defendant in the event that Dr Lonie or anyone else expresses the view that he lacks capacity to represent himself. It is highly likely that the only way someone will be found will be on the basis that they are fully indemnified out of the estate. That is a departure from the ordinary rule in relation to tutors which is that they are ordinarily liable for the costs of the proceedings: Yakmore v Handoush (No 2) (2009) 76 NSWLR 148; [2009] NSWCA 284 at [45].

21. In the present case the estate is not terribly large. The total value of the estate seems to be somewhere between about $600,000 and $2 million. There are liabilities of at least $108,000. If the plaintiff succeeds in the litigation he should be entitled to a half share of the estate. If the second defendant succeeds in the litigation the plaintiff should be entitled to a 10 percent share of the estate. So, depending on the ultimate size of the estate and having regard to the undoubted liabilities of at least $108,000 the actual amount in dispute between the parties may be very little. Costs to date must already be significant. I would be loathe in these circumstances to appoint a tutor on the basis that his or her costs will come out of the estate come what may.

22. Fourthly, it is one thing to order a party to attend a medical examination where the issue in dispute is, say, the extent of a work injury where that is the question with which the proceedings are concerned. It is a very different thing to require someone to attend a medical examination with a neuropsychologist to determine whether or not they are capable of conducting proceedings at all. That is not to say that such an order should not be made in an appropriate case. However, in my view such an order should only be made, as it was in Angius v Salier, where there is a relatively strong case to suppose that a person lacks capacity and where there are pressing reasons, for example to do with the preparation of the matter for hearing or where the party appears not to understand the issues in the proceedings, for the examination to take place.

23. I note that in Angius v Salier, the order had the effect, or at least hoped-for effect, of ensuring that a second round of hearing dates would not be lost in circumstances where the plaintiff's evident lack of capacity had already led to the loss of the first round of hearing dates. Here, by contrast, it is inevitable that hearing dates will be lost if the order is made. Furthermore, they will be lost even if it transpires that the second defendant is able to conduct the proceedings on his own behalf. As mentioned, I fully appreciate this is a situation which the plaintiff sought to avoid by bringing the application as early as he did. Nonetheless, through no fault of the plaintiff, it is the position the court now finds itself in.

24. Given the fact that I am confident that the court will have the material before it to allow the whole of the proceedings to be concluded in the allocated hearing dates I am not prepared to make the orders sought. I do, however, consider that the plaintiff was justified in raising this matter and so I will make no order as to costs.

25. The order of the court will therefore be as follows:

1. The Amended Notice of Motion is dismissed.

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Decision last updated: 19 May 2025