Orrman v Orrman - [2007] WASC 227

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ORRMAN -v- ORRMAN [2007] WASC 227

CORAM: EM HEENAN J

HEARD: 13 SEPTEMBER 2007

DELIVERED : 13 SEPTEMBER 2007

FILE NO/S: CIV 1201 of 2006

BETWEEN: YVONNE ORRMAN
Plaintiff
AND
EVILD HENRICK ORRMAN
Defendant

Catchwords:

Trial - Adjournment - Litigant in person - Absence - Apparent medical disability - Doubtful capacity - Directions to enable medical examination and report

Legislation:

Property Law Act 1969 (WA)

Result:

Trial adjourned on terms
Medical reports to be obtained
Liberty to apply for appointment of guardian ad litem

Category: B

Representation:

Counsel:

Plaintiff: Mr K E Yin
Defendant: No appearance

Solicitors:

Plaintiff: Frank Unmack & Cullen
Defendant: No appearance

Case(s) referred to in judgment(s):

Nil

EM HEENAN J: I am sitting this morning at the commencement of a trial of this action between Yvonne Orrman and her brother‑in‑law, Evild Henrick Orrman, which has been regularly listed for trial.
Notice of the proceedings has been given to the defendant and, for a series of reasons which will emerge, I am satisfied that the defendant is aware of and has had an opportunity to attend at this trial. There is no appearance before me, by or on behalf of Mr Orrman this morning. The question, therefore, is whether I should proceed with the trial as desired by the plaintiff.
It is perhaps unnecessary to say that circumstances usually favour the progress of a trial on the dates which have been set and that very unusual circumstances need to be established before a trial can be adjourned. The present situation is, however, quite unusual.
This action concerns a house and land owned by the parties as tenants in common in equal shares at 44 Hammad Street, Palmyra; the full title particulars of which are given in the statement of claim. The history of the ownership of this property is that it belonged in the past to the mother of the defendant, Ada Doris Harper. When she died on 25 December 1976 it passed, by the provisions of her will, to her two sons, Carl Sigfrid Orrman and the defendant, who both duly became registered, in December 1980, as the sole proprietors of the land as tenants in common in equal shares.
The plaintiff is the widow of Carl Sigfrid Orrman. He died in August 2001 and left his undivided interest in the property to her. She duly became registered, on 7 November 2001, as a proprietor of the land as tenant in common in equal shares with the defendant.
Since then, the history of the ownership and control of the house has been an unhappy and an unsatisfactory one. There has been disagreement by the defendant with any proposals to sell or dispose of the land. The property has been occupied by junior members of the family from time to time. However, the appearances are that it has been neglected, it has attracted adverse attention from the local municipality and the owners have been prosecuted for failing to take steps to keep it free of rubbish, unruly growth and the like. All attempts by the plaintiff to deal constructively with her brother‑in‑law about the management of the house and the land have come to nothing. There even have been refusals by the defendant to accept financial contributions from her for the payment of rates.
In those circumstances, the plaintiff has commenced this present action seeking an order for sale of the property pursuant to s 126 of the Property Law Act 1969 (WA) and for the equal distribution of the net proceeds of the sale between herself and the defendant. It almost goes without saying that, prima facie, she has an entitlement to such an order on proof of the ownership of a tenancy in common in equal shares of the land, which has been admitted.
The defendant, however, in a defence which was filed by solicitors who are no longer acting for him in the proceedings, opposes any order for the sale or division of the land. By a counterclaim he alleges that there was an agreement reached between him and his late brother, Carl Sigfrid Orrman, the plaintiff's deceased husband, some time in March 1998. The substance of the alleged agreement was: that in the event that Carl predeceased his brother, Carl's share in the land should go to the defendant; that Carl would execute a will to give effect to that intention; and, that the defendant would pay all the outgoings on the property. The defendant alleges that there was a document executed by Carl to this effect, referred to in the pleadings as the '1998 document'. However, that document has not been produced, nor has it been discovered, and the plaintiff denies any knowledge of the existence, whereabouts or particulars of such a document or any such alleged agreement.
Nevertheless, the defendant says that in reliance upon what he claims was a common intention of his brother, he undertook personal labour on the upkeep of the property and paid all outgoings on the property in their entirety. Further, he says that following his brother's death in August 2001, he continued to expend labour and resources in the upkeep of the property and by meeting all outgoings.
The defendant alleges, perhaps not in as many words, but in effect, that he is the beneficiary of a constructive trust of the plaintiff's undivided half share in the property and that this should be transferred to him so that he can become the sole proprietor of an estate in the land in fee simple. Failing that, he pleads that, because of the various matters which I have already described, if there is to be any disposition of the property, it ought be physically partitioned. In that claim he says that the property is capable of subdivision; that it should be partitioned in such a way as to provide for him the half upon which the house is erected; and, that orders be made to that effect.
Witness statements have been filed and documents have been lodged which confirm the basis of the plaintiff's claim, repeat the substance of the defendant's claim, but, conspicuously, omit any independent support for the existence of the alleged agreement between the brothers by which the property is said to be held on trust as claimed in the counterclaim. Consequently, the strength of the case, if that is an important consideration in what is about to be decided, appears to me very much to favour the plaintiff. However, the problem of the absence of the defendant is a very real one.
At a directions hearing yesterday, I mentioned, and it will be recorded on the transcript, how communications were made to the court by a lady, a Ms Vera Zeman, apparently acting on behalf of the defendant, to advise that the defendant was ill, apparently with some cardiac problem, and would be unable to attend the court. Since then, in circumstances which I have described earlier at the hearing this morning, the court has received a report from the defendant's doctor, Dr Brett Montgomery, dated 12 September 2002 (Exhibit A). Dr Montgomery says that the defendant is a patient of his, and continues:
He [the defendant] has many medical problems including chronic back pain due to spinal stenosis, diabetes, high blood pressure, renal impairment, and a long history of mental illness, including depression and anxiety features.
He feels that he is unfit on medical grounds to appear in the [Supreme Court] for a case this week. He feels that he would be unable to testify and perhaps unable even to walk to the stand. He tells me that he collapsed during an attempt at mediation last week. My impression is that this collapse is likely to have related to extreme stress rather than any acute physical illness.
He and his carer Vera Zeman describe a worsening of his depressive symptoms in recent days including decreased appetite, poor sleep, reduction in self‑care and (of most concern) an increase in suicidal thinking. He feels that he would be at substantial risk of suicide should the court case not go in his favour.
On balance, I feel that these symptoms do indicate that it may not be safe to proceed to trial this week, and I thus find him unfit on medical grounds to attend court. However, I have discussed with him that such a court case will inevitably carry some degree of stress and that I cannot support postponing it indefinitely on medical grounds. Indeed, ongoing avoidance of potential stressors carries a risk of worsening stress. I have therefore asked that he seek the opinion of his treating psychiatrist, Dr Jane Fitch, as to his fitness to testify. I have asked that he arrange an appointment as soon as reasonably possible.
This report has not been verified by affidavit. It has been sent to the court in response to a request conveyed at my direction and there is no formal application before me for any adjournment. However, as raised with counsel for the plaintiff, I have no reason to doubt the authenticity of Dr Montgomery's report and his report appears to me, with all respect to him, to be thorough, thoughtful, responsible and, as far as one can tell, realistic. The picture of the patient which it paints seems to me to coincide very well with the history of the problems which have arisen in relation to the control of this house and may well go a long way to explaining the differences and difficulties which have led to this litigation. For that reason it has every appearance of being correct.
It also seems to me that the report indicates that there is a probability that, whenever confronted with the need to address the problems about the future of this house, the defendant is likely to deteriorate in condition, show further signs of depression and to have difficulty in handling this case or his representation. However, as Dr Montgomery very responsibly writes, he could not support postponing the trial indefinitely.
I have given quite a degree of thought to what should be done in these circumstances. It seems to me that, although this information before the court is not verified by affidavit or supported by a formal application, I simply cannot overlook the conclusion that a doctor ‑ who does know the patient, who is aware of the circumstances and who gives every appearance of making a balanced and independent judgment ‑ considers that the defendant is unfit on medical grounds to appear. If I were to proceed with the trial in those circumstances, it seems to me that I would be at risk of causing an injustice to the defendant. There is also, in practical terms, the possibility of doing some harm to the plaintiff by exposing her to a situation that any resulting judgment might be set aside because of the defendant's unfitness.
In those circumstances, I consider that I should adjourn this trial, but on terms. The terms will be that the case is adjourned to a date to be fixed, but is to be given priority in the list, and is to be brought on at short notice when considered appropriate. Any costs of the adjournment or costs thrown away by reason of the adjournment are to be met by the defendant.
Further, I will direct that the defendant do, within 30 days, arrange to supply to the court and to the plaintiff's solicitors a report from his treating psychiatrist, Dr Fitch, or any other psychiatrist whom he may attend, concerning his fitness to conduct this litigation, and, within that 30‑day period, another report from Dr Montgomery dealing with the same issue.
Next, I will direct that the plaintiff shall be at liberty to require the defendant to submit himself for examination at a specified time and place by a medical practitioner provided and paid for by the plaintiff and, at that examination, a medical adviser chosen by the defendant shall be entitled to be present if the defendant so desires. The medical practitioner conducting that examination shall provide a report to the court, the plaintiff and the defendant setting out the practitioner's opinion as to the capacity of the defendant to conduct this litigation - that means his ability to give instructions or to present his case. Should it be considered necessary by the plaintiff as a result of that examination, the defendant may be required to undertake a second similar examination by a consultant psychiatrist on the same terms and for the same purpose; again the report to be made available to the court and to the parties.
In addition, I will direct that although the plaintiff is required to meet the costs of these examinations, they shall form part of the costs in the action and, unless otherwise ordered after the trial or other disposition of the action, shall be paid by the defendant.
I will give liberty to the plaintiff to apply to the court for further directions at any time, but preferably after the medical report or reports described have been received, with a view to the court deciding whether, and if so when, the case ought be relisted for trial; or, alternatively, whether a guardian ad litem, and if so whom, should be appointed to conduct the interests of the defendant in the litigation. I will also give general liberty to apply.