Nguyen v State of South Australia - [2024] SASCA 105

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
NGUYEN v STATE OF SOUTH AUSTRALIA
[2024] SASCA 105
Judgment of the Court of Appeal
(The Honourable Justice S Doyle and the Honourable Justice Bleby)
29 August 2024
HEALTH LAW - MENTAL HEALTH GENERALLY - GENERAL LAW AFFECTING PERSONS WITH MENTAL ILLNESS OR IMPAIRED CAPACITY - CONDUCTING LEGAL PROCEEDINGS - LITIGATION GUARDIANS AND NEXT FRIENDS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PARTIES AND REPRESENTATION - PERSONS UNDER LEGAL INCAPACITY OTHER THAN CHILDREN
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
The applicant seeks leave to appeal from the primary judge’s order that the underlying proceedings be stayed pending the appointment of a litigation guardian for the applicant. The applicant requires an extension of the time within which to seek leave to appeal.
Held, per the Court, granting an extension of time but dismissing the application for leave to appeal:
1.Given the limited period of delay, and the respondent’s acceptance that an extension would not give rise to any prejudice, it is appropriate that the applicant be granted an extension of time; and
2.In circumstances where there is no clear merit in the appeal, the appeal does not raise any issue of principle or general importance, and there is limited scope for any substantial injustice if the primary judge’s decision stands, the interests of justice do not favour a grant of leave to appeal.

Uniform Civil Rules 2020 (SA) rr 2.1(b), 23.8, referred to.
Dalle-Molle v Manos (2004) 88 SASR 193; Manning v Russell (2015) 123 SASR 135; Nguyen v State of South Australia [2024] SASC 32; Slaveski v Victoria (2009) 25 VR 160, considered.

NGUYEN v STATE OF SOUTH AUSTRALIA
[2024] SASCA 105
Court of Appeal – Civil: Doyle and Bleby JJA

THE COURT: This is an application for leave to appeal from the primary judge’s order that the underlying proceedings be stayed pending the appointment of a litigation guardian for the applicant.[1]
[1] Nguyen v State of South Australia [2024] SASC 32.
The applicant appeals on two grounds. In Ground 1, the applicant contends that the primary judge erred in finding that the applicant lacked capacity, and in Ground 2 he contends that the primary judge gave insufficient weight to the medical report of an expert relied upon by the applicant, Dr Bryden.
The respondent opposes leave to appeal on the basis that the appeal is not reasonably arguable, the appeal does not raise any issue of principle, and no substantial injustice will arise if the primary judge’s orders stand.
The applicant requires an extension of the time within which to seek leave to appeal. Given the limited period of delay, and the respondent’s acceptance that an extension would not give rise to any prejudice, it is appropriate that the applicant be granted an extension of time.
However, for the reasons which follow, the application for leave to appeal should be dismissed.
Background
In the underlying proceedings, the applicant brought a claim in negligence against the respondent for injuries arising from a medical procedure at the Royal Adelaide Hospital on 17 September 2014. The proceedings have had a protracted procedural history involving a number of procedural defaults by the applicant and several changes to his legal representation. Ultimately, the applicant has been unable to obtain counsel who are prepared to act in the absence of a litigation guardian.
The respondent brought an application before the primary judge for an order appointing a litigation guardian for the applicant, or alternatively, a stay of proceedings pending the appointment of a litigation guardian.
In considering this application, the primary judge took into account the procedural history of the matter; reports from two medical practitioners, Dr Bryden and Dr Rothwell, who each assessed the applicant’s legal capacity; notes from medical practitioners who the applicant consulted in October and November 2019; and affidavit evidence from the applicant’s solicitor, Mr Kerin, setting out the difficulties he faced obtaining counsel for the applicant. Dr Bryden and Dr Rothwell were retained by the applicant and respondent respectively to assess the applicant’s intellectual and reasoning capacity in relation to the underlying proceedings. There was no oral evidence.
After considering this evidence, the primary judge concluded that the applicant is a person under a legal incapacity for the purposes of r 2.1(1) of the Uniform Civil Rules 2020 (SA), and ordered a stay of proceedings until a litigation guardian could be appointed, pursuant to r 23.8 of the Uniform Civil Rules. This decision is the subject of the current appeal.
In respect of the application for leave to appeal, the respondent filed an affidavit sworn by its solicitor, Ms Cartledge, in which she said that the applicant’s solicitor, Mr Kerin, had told her that the Public Trustee had recently indicated that it is prepared to be appointed the applicant’s litigation guardian in the underlying proceedings, following the determination of this appeal. Mr Kerin subsequently filed an affidavit clarifying that whilst he had had a conversation with a representative of the Public Trustee about the prospect of it acting as litigation guardian, he had not intended to convey it had necessarily committed to doing so.
Application for leave to appeal
In deciding whether to grant leave to appeal, the Court acts in the interests of justice and by reference to three inter-related questions: whether the decision is attended by sufficient doubt to warrant its reconsideration on appeal; whether the appeal raises an issue of principle or general importance; and whether allowing the decision to stand would work a substantial injustice to the applicant. It is convenient to address the second and third considerations before addressing the merits of the appeal.
This appeal does not raise any issue of principle or general importance. The general principles governing the determination of party’s legal capacity are well settled.[2] The issues on appeal relate only to the application of these principles in the circumstances of this particular matter.
[2] See Manning v Russell (2015) 123 SASR 135 at [15]-[20] (Nicholson J); Dalle-Molle v Manos (2004) 88 SASR 193 at [12], [20]-[30] (Debelle J); Slaveski v Victoria (2009) 25 VR 160 at 182-185 [24]-[34] (Kyrou J).
As indicated above, it appears likely that the Public Trustee will be prepared to act as the applicant’s litigation guardian in the event that the appeal is unsuccessful. Assuming this appointment is made, the applicant will be in a position to pursue his claim. It follows that there is limited scope for any substantial injustice in the event that the primary judge’s decision is left to stand.
Merits
Determining whether a person is under a legal incapacity is a multifactorial inquiry which involves having regard to the facts, subject matter and complexity of the particular proceedings. The Court must determine whether the person is a person who, ‘because of a mental or physical disability or illness, is not capable of managing their participation in a proceeding’.[3] As the primary judge observed, this involves consideration of whether the person is capable of understanding the ‘nature of the litigation, its purposes and its possible outcomes, including the risks in costs’.[4]
[3] Uniform Civil Rules 2020 (SA) r 2.1(1) (definition of ‘person under a legal incapacity’).
[4] Nguyen v State of South Australia [2024] SASC 32 at [56], applying the authorities mentioned in fn 2 above.
As explained above, in determining the respondent’s application, the primary judge took into account the procedural history of the matter, reports by Dr Bryden and Dr Rothwell, medical notes from general practitioners who the applicant consulted in October and November 2019, and affidavit evidence from the applicant’s solicitor.
The applicant complains that there was insufficient evidence to support the primary judge’s finding of legal incapacity and that, in reaching this conclusion, his Honour gave insufficient weight to the medical report of Dr Bryden, and erred in his assessment of the report of Dr Rothwell and the medical notes.
In developing this complaint, the applicant first contends that greater weight should have been given to Dr Bryden’s view that if relevant support is put in place, the applicant may be able to understand the facts and issues relevant to his claim and therefore act in the proceedings. As explained above, the ultimate determination of the applicant’s legal capacity is a matter for the Court. It is apparent that the primary judge accepted Dr Bryden’s view that the applicant has a cognitive disability and, in light of the other medical evidence and the procedural history of the matter, concluded that the applicant would not be able to adequately understand the facts and issues in the proceeding so as to properly assess and manage the risks involved. Having regard to the body of evidence before him, it cannot be said that this conclusion was erroneous, or in some way precluded by the opinions expressed by Dr Bryden.
The applicant also contends that the primary judge gave improper weight to Dr Rothwell’s opinions as they were based on hearsay and secondary evidence which took precedence over his clinical observations of the applicant. There is no sound basis for this contention. Dr Rothwell opined that the applicant’s cognitive function was impaired as a result of chronic and acute use of Temazepam, which was not disputed and in any event documented in the medical notes tendered before the primary judge. In any event, Dr Rothwell ultimately assessed the applicant’s level of cognitive impairment based on his clinical observations of the applicant and the cognitive assessments conducted by Dr Bryden. Dr Rothwell’s view was an important part of the evidence, and appropriately relied upon by the primary judge in determining the applicant’s capacity.
The applicant also complains that the primary judge erred in giving weight to the medical notes on the basis that they were not a contemporary record of the applicant’s Temazepam consumption. However, in circumstances where the primary judge relied on those notes merely as revealing the applicant’s historical use of Temazepam and instances of his erratic behaviour, this complaint has no merit.
The primary judge considered the whole of the evidence before him and determined that the applicant is a person with a legal incapacity. In particular, his Honour found that due to his impaired cognitive function, the applicant is unable to appreciate and weigh the advantages and disadvantages of the competing forensic choices which must be made in the underlying proceedings, and that there is therefore a real risk that, without a litigation guardian, he will be disadvantaged in the conduct of his affairs. For the reasons explained, the applicant’s proposed grounds of appeal do not disclose any reasonably arguable basis for challenging the primary judge’s findings or conclusion.
Conclusion
In circumstances where there is no clear merit in the appeal, the appeal does not raise any issue of principle or general importance, and there is limited scope for any substantial injustice if the primary judge’s decision stands, the interests of justice do not favour a grant of leave to appeal.
For the reasons set out, we grant an extension of time but dismiss the application for leave to appeal. We order costs in favour of the respondent in the amount of $1,000.