Pi v State of New South Wales (No 3)

[2015] NSWSC 1413

Supreme Court

New South Wales

Medium Neutral Citation:	Pi v State of New South Wales (No 3) [2015] NSWSC 1413
Hearing dates:	18 September 2015
Date of orders:	18 September 2015
Decision date:	18 September 2015
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1)   The Plaintiff's notice of motion filed 14 July 2015 be dismissed.  (2)   The Plaintiff pay the Defendant’s costs of the notice of motion.
Catchwords:	TUTOR – application by unrepresented plaintiff to be appointed tutor of other plaintiff – plaintiffs are father and daughter – not shown that daughter a person under a legal incapacity – application dismissed – no question of principle.
Legislation Cited:	- Civil Procedure Act 2005 – s 3
Cases Cited:	- Pi v State of New South Wales [2015] NSWSC 324
Category:	Procedural and other rulings
Parties:	Guang Hua Pi – Plaintiff State of new South Wales – Defendant
Representation:	Counsel: M. Hutchings – Defendant   Solicitors: In person (with interpreter) – Plaintiff McCabes – Defendant
File Number(s):	2014/003768

Judgment (revised from ex tempore)

1. The background to these proceedings was set out in a judgment of Harrison J in Pi v State of New South Wales [2015] NSWSC 324 published on 27 March 2015 which I gratefully adopt. His Honour ordered the striking out of the statement of claim, but granted the plaintiff, that is Mr Pi, leave to file and serve any further statement of claim.

2. In due course, an amended statement of claim was filed which named Mr Pi as the first named plaintiff and his daughter Holly Tan as the second named plaintiff. Mr Pi wishes to be appointed the tutor for his daughter.

3. To regularise matters, on or about 14 July 2015, Mr Pi filed a notice of motion seeking an order adding his daughter as a second plaintiff and seeking leave for him to act as her tutor. As such, the notice of motion sought an order under Uniform Civil Procedure Rule (“UCPR”) UCPR 7.18(2). UCPR 7.18(5) specifies that in proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include, inter alia, evidence that the person for whom a tutor is to be appointed is a person under a legal incapacity. It also requires that there be evidence that the proposed tutor consents to being appointed.

4. There is no doubt that Mr Pi consents to being appointed his daughter’s tutor. UCPR 7.18(5) also requires evidence to be adduced that the proposed tutor does not have an interest in the proceedings adverse to the person under a legal incapacity.

5. In circumstances where one plaintiff seeks to be appointed the tutor of the other plaintiff, and to conduct the entire proceedings unrepresented, there may be an issue concerning whether he has an interest that is either adverse or potentially adverse. However, it is not necessary to consider that further.

6. The concept of legal incapacity is defined in s 3 of the Civil Procedure Act 2005 as follows:

“person under legal incapacity means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes:

1. a child under the age of 18 years, and

2. an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and

3. a person under guardianship within the meaning of the Guardianship Act 1987, and

4. a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and

5. an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.”

7. Mr Pi's daughter is well over the age of 18 years. It is also accepted that she does not fall within subparagraphs (b) to (d) of this definition so that she could only meet the definition of person under a legal incapacity if she is an “incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs”.

8. The strictness of that concept appears to be relaxed to an extent for the purposes of this application in that UCPR 7.13 expands the definition of a person under a legal incapacity to include a person “who is incapable of managing his or her affairs”.

9. The precise role played by this expansion of the definition is not altogether clear, but at least it seems to highlight the need to be satisfied of the particular person's incapacity in relation to specific tasks relevant to the litigation, which in this particular context would involve a consideration of her capacity to communicate with a legal representative acting on her behalf.

10. In relation to this threshold issue, Mr Pi has pointed to a significant amount of evidence in disparate places. A great deal of that evidence extends to the overall claim that his daughter suffered significant mental harm and nervous shock as a result of witnessing the aftermath of the events surrounding what is pleaded to be Mr Pi's wrongful arrest.

11. The specific material relevant to the question of whether his daughter has an incapacity appears to be the following. First, there is a handwritten medical certificate from a consultant psychologist and psychotherapist dated 23 December 2004 which states that Ms Tan “has schizophrenia and severe social anxiety with associated agoraphobia”. The certificate continues by stating, “these conditions make leaving her home to attend appointments, speaking to strangers and answering the telephone very difficult or impossible”, as “she will avoid all these situations”.

12. Second, the material also includes a certificate from a psychologist dated 11 July 2014 which recounts Mr Pi reporting upon his daughter's condition including that she was particularly withdrawn. From the bar table, Mr Pi expanded upon that by stating that she in effect never leaves her room, and that she is scared of any social interaction, and that “her mind is not clear”.

13. One particular difficulty with this application is that there has been submitted a three-page typed statement recounting Ms Tan's experiences at and around the time of Mr Pi's arrest. This statement has the typed date 8 February 2011, but has what is said to be Ms Tan's signature with the handwritten date “18 July 2015” affixed.

14. Mr Pi indicated that, as at the time of his arrest in January 2011, his daughter's condition was obviously of concern to him, but it has deteriorated rapidly since then. He also stated that in July of this year, his daughter attached her signature to this statement after its contents were explained in detail to her. That explanation suggests that, although her condition is obviously troubling, she is not incommunicate in the sense that I referred to earlier, nor incapable of managing her affairs in the sense of being incapable of understanding the course of the litigation and communicating with a legal representative.

15. The unsatisfactory position at the moment is that the evidence is not able to establish that she is a person under a legal incapacity. What is unsatisfactory about that is that one can see how, with a properly prepared report and material, the Court might come to that conclusion. I was advised from the bar table that Mr Pi has had this explained to him, but I am in no position to judge whether that is so.

16. If the Court had come to the conclusion that Ms Tan is a person under a legal incapacity, a difficult question would then arise as to whether Mr Pi would be permitted to be a tutor. There is, as I said, the issue that arises from the fact that he is the other plaintiff and wishes to conduct the proceedings by himself.

17. There is also the further problem that Mr Pi's own claim has at its core the contention that he suffered significant mental harm as a result of his wrongful arrest. In his particulars this is described as including psychotic symptoms and depressive episodes. From the bar table he explained that even with the assistance of medication he has difficulties with his memory. There must be a real question as to whether the Court could allow him in those circumstances to assume the onerous responsibilities of a tutor, although it is not necessary to decide that matter.

18. The consequence is that the Court must reject the application to join Ms Tan and for the appointment of Mr Pi as her tutor.

19. Accordingly, the Court orders:

1. that the Plaintiff's notice of motion filed 14 July 2015 be dismissed;

2. that the Plaintiff pay the Defendant’s costs of the notice of motion.

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Decision last updated: 25 September 2015