Petronaitis v Rowles

[2011] NSWCA 426

Court of Appeal

New South Wales

Case Title:

Petronaitis v Rowles

Medium Neutral Citation:

[2011] NSWCA 426

Hearing Date(s):

20 December 2011

Decision Date:

20 December 2011

Jurisdiction:

Before:

Beazley JA

Decision:

1. Dismiss order 1 of the notice of motion filed on 15 December 2011;
2. Refer the notice of motion insofar as it seeks orders 3 and 5 to the Equity Division to be listed on 3 February 2012 before the Registrar in conjunction with summons 2011/381012;
3. Refer the applicant to the Registrar for pro bono legal assistance to obtain advice in relation to the proceedings;
4. Order the applicant, Ms Dalia Petronaitis, to pay the costs on the notice of motion of the second, third and fifth respondents.

In respect of the notice of motion filed in court today on behalf of the second and third respondents, I make the following orders:
1. That service of the notice of motion be dispensed with;
2. That the notice of motion be returnable instanter;
3. That the notice of motion be listed before the Registrar on 13 February 2012;
4. I make no orders as to costs in relation to today in respect of the notice of motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

Legislation Cited:

Guardianship Act 1987
Uniform Civil Procedure Rules 2005

Cases Cited:

Texts Cited:

Category:

Principal judgment

Parties:

Dalia Petronaitis (Applicant)
Michael Rowles (First Respondent)
Michael Petronaitis (Second Respondent)
John Petronaitis (Third Respondent)
Guardianship Tribunal (Fourth Respondent)
Kay Petronaitis (Fifth Respondent)

Representation

- Counsel:

Counsel:
In person (Applicant)
No appearance of or for the First Respondent
P Jeffriess (Second and Third Respondents)
Submitting appearance (Fourth Respondent)
D Roberts (Fifth Respondent)

- Solicitors:

Solicitors:
In person (Applicant)
Everingham Solomons (Second and Third Respondents)
Crown Solicitor (Fourth Respondent)
Michael McHugh (Fifth Respondent)

File number(s):

2011/404847

Decision Under Appeal

- Court / Tribunal:

- Before:

Slattery J

- Date of Decision:

28 October 2011

- Citation:

P v D1 & Ors

- Court File Number(s)

2009/46

Publication Restriction:

No

JUDGMENT

1. HER HONOUR: On 15 December 2011 the applicant, Ms Dalia Petronaitis, filed a notice of motion in which she sought the following five orders:

   "1.Order to stay the enforcement of the order of Slattery J to stay the execution of his order allowing the lifting of the injunction on the sale of the home and any consequent sale to be halted or withdrawn.

   2.I am requesting an abridgment of time for service and hearing of the matter(s).

   3.I request the removal of tutor/solicitor Mr Michael McHugh of Law Company, Tamworth along with his Barrister D Roberts.

   4.I ask that the matter and proceedings be referred to "Pro-Bono Assistance" by the Honourable Court for the Plaintiff, as I have been unsuccessful to be granted Legal Aid plus private solicitors.

   5.I request another solicitor to represent my mother, Kay Petronaitis, in replacement of Mr McHugh of Tamworth for the case to be fair."

2. In support of her notice of motion, the applicant filed an affidavit also sworn on 15 December 2011. In response to the notice of motion and the supporting affidavit, an affidavit has been filed by Jessica Marion Simmonds on 18 December 2011. Ms Simmonds is the solicitor with the carriage of the matter on behalf of the second and third respondents. Michael McHugh has also sworn an affidavit of 20 December 2011 in response to the affidavit of Ms Petronaitis. The last two affidavits to which I have referred, that is, of Ms Simmonds and Mr McHugh, are also directed to a notice of motion which was filed in Court today seeking the striking out of a summons for leave to appeal which has been filed in the proceedings. I will deal with that matter later.

3. Perhaps I should indicate that I did not ascertain whether Ms Petronaitis had any objections to the content of the affidavits of Ms Simmonds and Mr McHugh. However, I have read those affidavits. Ms Simmonds' affidavit essentially contains a chronology of the proceedings before the Court and I do not see that any of that material is objectionable. Mr McHugh's affidavit raises additional matters including the costs that have been incurred and he is concerned that the effect of the legal proceedings and continued applications in it will deplete the estate of the fifth defendant. I do not see there is any objectionable material in that affidavit and I propose to rely on them for that purpose.

4. Insofar as Ms Petronaitis' affidavit of 15 December is concerned, she makes a number of statements in that affidavit as to her care for her mother, she makes statements on behalf of her mother such as in para 5 which says that her mother is being kept in a nursing home against her will; and in para 13 where she states that Michael Petronaitis wants to sell the fifth defendant's property behind her back. She also states that the fifth defendant, who is the mother of Ms Petronaitis and the second and third respondents, does not want to sell her property. I do not propose to strike out any parts of the affidavit. To the extent that there are assertions in the affidavit, I will treat those assertions as submissions in the matter.

5. To put the matter in context, I will record the following brief statement of facts. The fifth defendant, Ms Kay Petronaitis, is an elderly lady, presently aged ninety-one as I understand it. She has been diagnosed as having some cognitive disability, particularly in relation to significant organisational matters insofar as her personal affairs are concerned, but as I understand it from the judgment of Slattery J given on 4 April 2011, she still retains significant cognitive ability. However, because of her mixed cognitive functioning, the Guardianship Tribunal, in June 2006, determined that the fifth defendant required a guardian and on that occasion appointed the third respondent as her guardian for a period of six months. In making that determination, the Guardianship Tribunal expressly rejected an application by the applicant to be the fifth defendant's guardian. Following the appointment of the third respondent as guardian, the fifth defendant was moved into a nursing home for respite care.

6. There was a second hearing in the Guardianship Tribunal in January 2007. On that occasion, the principal issue before the Tribunal was the financial management of the fifth defendant's affairs. On that occasion, the Tribunal continued the guardianship order for a further period of three years. The Tribunal also appointed the second respondent as her financial manager. Again on that occasion the Guardianship Tribunal rejected the plaintiff's submissions that she was appropriately managing the fifth defendant's affairs.

7. There were then two further proceedings before the Guardianship Tribunal, one in August 2008 and one in September 2008. Those guardianship proceedings were significantly focussed around the circumstances in which the applicant removed the fifth defendant from the nursing home and did not return her.

8. There was a fifth tribunal hearing and a determination made in January 2009 in relation to the financial management of the fifth defendant's affairs. By that time the fifth defendant had been moved to a nursing home facility in Tamworth. In the fifth tribunal hearing, the fifth defendant had asserted that she was capable of managing her own affairs. However, the Guardianship Tribunal was not satisfied that the fifth defendant had understood that she had made the application for review in relation to her existing financial management.

9. A sixth tribunal hearing occurred in July 2009, when an application was made to revoke the existing guardianship order. The Tribunal declined that application with the result that the second and third respondents remained as the fifth defendant's financial manager and guardian under the terms of the Guardianship Act 1987.

10. The applicant on the notice of motion with which I am dealing sought leave to appeal from certain of the Tribunal's decisions. On 4 April 2011, Slattery J refused her leave to appeal from the various guardianship decisions. In respect of the decisions of 19 June 2006, 9 January 2007 and 29 January 2009, his Honour found that the applications to appeal were not brought within time and his Honour refused to extend time. In relation to the decision of 10 July 2009, which was the last of the guardianship decisions, his Honour refused leave to appeal against that decision.

11. On 28 October 2011 his Honour made a number of consequential orders. Order 1 was in the following terms: The orders of Rothman J made on 15 September 2009 restraining the sale of the property known as xx xxxxxx xxxxxx, Bronte, as amended from time to time, be discharged. The fifth defendant is the registered proprietor of the property at xx xxxxxx xxxxxx, Bronte and it was her home until she was moved into nursing home care as I have already described. The Bronte property was also the home of the applicant until recently.

12. The applicant left the Bronte property in circumstances where an order for possession of that property had been made by the Supreme Court.

13. Following upon the discharge of Rothman J's order restraining the sale of the Bronte property, the second respondent moved to sell the property. He did so pursuant to a direction of the Protective Commissioner.

14. The property was in fact auctioned and sold on 29 November 2011. Settlement of the sale of the property is set for 21 February 2012.

15. To the extent that order 1 sought by the applicant in her notice of motion seeks a stay of the lifting of the injunction on the sale of the home, that order cannot be made, because the property has been sold. However, she also seeks an order that any consequent sale be halted or withdrawn.

16. Ms Petronaitis made an application to White J on 29 November 2011 that the sale and its settlement be halted but that was refused by his Honour ex parte. There has been no further application before a single judge of the Equity Division for a further order or any appeal from his Honour's order.

17. In my opinion, no basis has been established as to why an order halting the settlement of the sale of the property should be made. The sale of the property was entered into by the person who is charged with the financial management of the fifth defendant's affairs. It was entered into in circumstances where it had been made known to the Court that the fifth defendant would like to live independently in the Bronte home with Ms Dalia Petronaitis and it was made in circumstances pursuant to an appropriate authority of the Office of the Protective Commissioner, dated 3 June 2009.

18. For those reasons, I would refuse order 1 in the notice of motion.

19. I have already indicated that I dispense with strict compliance with the orders for service and in that way I have fully dealt with order 2 to the extent that it needed to be dealt with by me.

20. The third order sought in the notice of motion is that Mr McHugh be removed as the tutor and solicitor for the fifth defendant and that Mr Roberts of counsel also be removed as a legal representative. In my opinion, that is not a matter which can appropriately be dealt with by me on an application of this nature. If it is sought to have Mr McHugh removed as the tutor, then appropriate steps can be taken to do so in the Equity Division under the Uniform Civil Procedure Rules 2005 (the UCPR), Pt 7, subrule 18.

21. The applicant also asks that she be referred for pro bono assistance. She says that she has been unsuccessful in obtaining Legal Aid. She also says she has been unsuccessful in obtaining any private representation. This morning at the commencement of the hearing, she indicated that a Mr David Elliott of counsel indicated that he would be able to act for her, instructed by Gerard Malouf, solicitors. Apparently that was a conversation which took place at the bar table, Mr Elliott having been in Court earlier this morning taking judgment in a matter in which he was briefed. He did not stay as a matter of courtesy to the Court to indicate whether he was able to appear, or would appear, or what he might do, or when that might be. In those circumstances, I refused the adjournment. The applicant has indicated that she continues to seek order 4 and that it would be of assistance to her if she had pro bono assistance.

22. This Court has the power to refer a matter for pro bono assistance pursuant to UCPR, Pt 7, Div 9. UCPR, r 7.36 provides that if it is satisfied that it is in the interests of the administration of justice, the Court may by order refer a litigant to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance. In deciding whether to make such a referral, the Court is to take into account the means of the applicant, the capacity of the litigant to obtain legal assistance outside the scheme, the nature and complexity of the proceedings and any other matter that the Court considers appropriate.

23. It seems to me from what I have been told, although this is without evidence, that the means of Ms Dalia Petronaitis are such that it is unlikely that she is able to bear the costs of conducting a full court case. There is a statement in the judgment of Slattery J that she is on a pension and she herself stated that she had solicitors in the matter until she was unable to afford to continue to pay their legal fees. She has stated that she has been refused Legal Aid and she also stated from the bar table that she has three pages of names of solicitors that she had contacted to ask to act for her without success until the offer of Mr Elliott this morning.

24. In the normal course, the Court recognises that it is of great assistance to unrepresented persons to have the assistance of a legal practitioner. I must say that having regard to the manner in which Ms Petronaitis put her submissions this morning, she has either been able to herself master the rules that relate to applications for a stay or she has had some assistance. That's not said as a way of criticism. It is an indication that she has been able to master some of the rules that do apply, including that a refusal of a stay of the settlement would cause irreparable damage to her mother in particular because the property by then would have been lost.

25. One difficulty that I have with deciding whether or not to make a referral is that on the material which is available to me at the moment, it seems that Ms Petronaitis' application and applications before the Court to date are based upon her concern to honour her mother's wishes to be looked after independently in her home and to have the company of herself. That is, to have the company of her daughter, the applicant. That is a very understandable wish. However, the Guardianship Tribunal has had this matter before it over many years and has made decisions which clearly indicate how the Tribunal considers he best care of the fifth defendant will be achieved, namely, by the appointment of a guardian and financial manager other than Ms Petronaitis.

26. Having said that, it may well be of great assistance to Ms Petronaitis to understand whether or not she has real prospects of success in seeking leave to appeal from the judgment of Slattery J and whether she has any prospects of a success in seeking the other orders, including for the removal of Mr McHugh as tutor and solicitor. For that reason I have decided, on balance, to refer Ms Petronaitis to the Registrar for referral to a barrister or solicitor for legal assistance in relation to giving advice on the proceedings.

27. If that advice is that there are prospects of successfully obtaining any of the orders that Ms Dalia Petronaitis seeks, either in respect of the summons for leave to appeal from the judgment of Slattery J or in respect of the removal of the tutor, she can approach the Registrar for an extension of the referral, to extend to representation in legal proceedings.

28. Insofar as order 5 that Ms Petronaitis seeks is concerned, that is, for another solicitor to represent her mother in replacement of Mr McHugh of Tamworth, I am of the opinion that that application will go hand in hand with any application that she makes for the removal of Mr McHugh as solicitor. It is not a matter that I can appropriately deal with. I perhaps should also indicate that there is nothing before me which would indicate that there is a reason to remove Mr McHugh. It does appear from the judgment of Slattery J that Mr McHugh faithfully reported to the court the wishes of the fifth defendant, and the affidavit which has been filed in court today by him sworn 20 December 2011 indicates his concern as to the legal costs which are being incurred.

29. I make the following orders on the notice of motion filed by the applicant on 15 December 2011:

    1.Dismiss order 1 of the notice of motion filed on 15 December 2011;

    2.Refer the notice of motion insofar as it seeks orders 3 and 5 to the Equity Division to be listed on 3 February 2012 before the Registrar in conjunction with summons 2011/381012;

    3.Refer the applicant to the Registrar for pro bono legal assistance to obtain advice in relation to the proceedings;

    4.Order the applicant, Ms Dalia Petronaitis, to pay the costs on the notice of motion of the second, third and fifth respondents.

    In respect of the notice of motion filed in court today on behalf of the second and third respondents, I make the following orders:

    1.That service of the notice of motion be dispensed with;

    2.That the notice of motion be returnable instanter;

    3.That the notice of motion be listed before the Registrar on 13 February 2012;

    4.I make no orders as to costs in relation to today in respect of the notice of motion.

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