Nicholas v Jimenez (2)

[2020] NSWDC 187

District Court

New South Wales

Medium Neutral Citation:	Nicholas v Jimenez (2) [2020] NSWDC 187
Hearing dates:	24-25 February 2020, 03-05 March 2020
Date of orders:	11 May 2020
Decision date:	11 May 2020
Jurisdiction:	Civil
Before:	Weber SC DCJ
Decision:	(1) That the order made on 7 November 2019 appointing Taleigha Jones as tutor of Dianne Nicholas be vacated; (2) That there be judgment and verdict for the defendant; and, (3) That the plaintiff pay the costs of these proceedings on a full indemnity basis.
Catchwords:	PRACTICE – Removal of tutor – no justification for the appointment of the tutor   COSTS – Indemnity costs – plaintiff to pay defendant’s costs – evidence of unreasonable conduct on behalf of the plaintiff
Legislation Cited:	Universal Civil Procedure Act 2005 (NSW)
Cases Cited:	3WJ Pty Ltd v Kanj [2008] NSWCA 321 Murray v Williams [2010] NSWSC 1243 Rozniak v Government Insurance Office [1997] NSWLR 608 Stokes v McCourt [2014] NSWSC 61
Category:	Consequential orders
Parties:	Dianne Nicholas (Plaintiff) Leanne Jimenez (Defendant)
Representation:	Counsel:  Ms E. Welsh (Plaintiff) Mr G. Watson SC with Ms C. Allan (Defendant)  Solicitors:  Bryden’s (Plaintiff)  Hall and Wilcox (Defendant)
File Number(s):	2018/207435
Publication restriction:	None

Ancillary Judgment

1. On 31 March 2020 I delivered judgment in these proceedings and indicated my prima facie inclination to order:

1. That Taleigha Jones be removed as the plaintiff’s tutor; and,

2. That the plaintiff pay the defendant’s costs on a full indemnity basis.

2. I shall refer to these matters as the “outstanding issues”.

3. These orders had been sought by the defendant during the hearing of the matter, but the plaintiff’s counsel justifiably considered that she was not in a position to deal with the outstanding issues at that time, that is to say, before judgment.

4. In the principal judgment, I indicated that if the plaintiff wished to be heard in relation to the outstanding issues, she should indicate that desire by communication with my associate. This occurred, and I made orders in chambers for the exchange of written submissions in relation to the outstanding issues, on the basis that I would decide the issues on the papers.

Removal of the Tutor

5. The order for the appointment of Ms Jones (the plaintiff’s granddaughter) as a tutor was made on 7 November 2019. This order was made on the basis of an opinion of Dr Klug, a forensic psychiatrist, to the broad effect that the plaintiff’s psychiatric condition was such as to justify the appointment.

6. On the findings that I have made, the plaintiff suffered from no psychiatric disorder, and the opinions expressed by Dr Klug were no doubt the result of the plaintiff having deliberately misrepresented her disabilities to Dr Klug, as she had similarly misrepresented them to other medical practitioners.

7. It follows that the basis upon which the order for the appointment of the tutor was made has disappeared. There can be no doubt that the court has power to make the order sought by the defendant (Stokes v McCourt [2014] NSWSC 61; Murray v Williams [2010] NSWSC 1243).

8. The plaintiff casts doubt on the utility of removing the tutor at this stage of proceedings. She speculates that the intention behind the order is to obtain an order for costs against the plaintiff personally, rather than against the tutor. It is interesting that, in the light of my findings, the tutor would oppose such an outcome, but beyond that I will say nothing.

9. Beyond doubting the utility of her removal, the tutor makes no submissions justifying the continuance of her appointment.

10. The simple fact is that there is no justification for the appointment of the tutor. If the true situation in relation to the plaintiff’s psychiatric health was made known such an appointment would never have been made. It follows therefore, that the situation should be regularised, and the order appointing the tutor revoked, so that the plaintiff suffers the consequences of the proceedings personally.

Indemnity Costs

11. On the findings which I have made as to the dishonest nature of the claim there is, in my view, little that can be said in opposition to the proposition that the plaintiff ought to pay the defendant’s costs on a full indemnity basis. In Rozniak v Government Insurance Office [1997] NSWLR 608 at 616 the court stated that the discretion to depart from the usual rule required “some evidence of unreasonable conduct”.

12. On the findings which I have made, it could hardly be gainsaid that the conduct of the plaintiff which led to the institution of the proceedings could, at the very least, be described as “unreasonable”.

13. The plaintiff’s opposition to the proposed indemnity costs order came down to two propositions; namely:

1. That the defendant ought to have admitted liability earlier than she did; and,

2. That the defendant ought to have pleaded fraud, and disclosed the existence of the surveillance footage at an earlier stage.

14. It should be noted in relation to the last proposition that the defendant obtained leave from a judge of the court allowing it to withhold the surveillance footage pursuant to provisions of Part 31 Rule 10 of the Universal Civil Procedure Act 2005 (NSW) (“UCPR”).

15. The submissions of the plaintiff, in my view, cannot withstand the simple fact that, on the findings that I have made, the plaintiff should never have made the claim on the defendant’s insurer, and as such, the proceedings both in the claims resolution system, and later in this court should simply never have occurred. By dishonestly making the claim the plaintiff set in motion the processes about which she now complains. It rings hollow in her mouth to do so.

16. As the defendant aptly submitted, the plaintiff’s submissions, in reality, amount to a complaint that the defendant should have conducted its defence differently, with the effect that the plaintiff would have known earlier what she already knew, that is to say, that she had no claim.

17. The plaintiff sees fit to bring fraudulent proceedings, she can hardly complain about the forensic decisions made by the defendant as to the manner in which that fraud would be exposed.

18. As to the proposition that the defendant ought to have disclosed the surveillance footage earlier, this submission appears to go nowhere. It certainly cannot be suggested that the earlier disclosure would have brought the proceedings to a halt, this is so as even after the footage was disclosed on the first day of the hearing, the plaintiff continued to prosecute the case.

19. Finally, I should add that the proposition that fraud should have been pleaded is not well founded (3WJ Pty Ltd v Kanj [2008] NSWCA 321).

20. For these reasons, I am of the view that it is appropriate that the plaintiff, Dianne Nicholas, pay the defendant’s costs on a full indemnity basis.

Orders

21. I make the following orders:

1. That the order made on 7 November 2019 appointing Taleigha Jones as tutor of Dianne Nicholas be vacated;

2. That there be judgment and verdict for the defendant; and,

3. That the plaintiff pay the costs of these proceedings on a full indemnity basis.

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Decision last updated: 11 May 2020