"R" v Manly Hospital and 7 Others
[2011] NSWDC 6
•04 March 2011
District Court
New South Wales
Medium Neutral Citation: "R" v Manly Hospital & 7 Others [2011] NSWDC 6 Hearing dates: 28 February, 1 and 2 March 2011 Decision date: 04 March 2011 Before: Levy SC DCJ Decision: 1. The motion filed by the first six defendants seeking to strike out and to dismiss the plaintiff's proceedings is dismissed;
2. Order that the proceedings brought by the plaintiff be stayed until the further order of this Court, or orders of the Supreme Court in its Protective Division;
3. The defendants are to pay the plaintiff's costs of each motion on the ordinary basis unless otherwise ordered;
4. The exhibits may be returned;
5. Liberty to apply on 7 days notice if further orders are required;
6. The court registry and the sixth defendant are to provide the plaintiff with a copy of this judgment.
[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: PRACTICE AND PROCEDURE - litigant in person affected by legal incapacity - proceedings commenced and carried on by plaintiff without a tutor or a solicitor - application by defendants to strike out and dismiss the plaintiff's proceedings - counter-application by plaintiff for a stay pending regularisation - whether the plaintiff's proceedings are futile - consequences of irregularity - whether strike out or stay indicated - whether incorrect joinder or naming of parties and the absence of particulars is fatal to the proceedings - whether statement of claim discloses a reasonable basis for action Legislation Cited: Civil Procedure Act 2005, ss 3(1), 56, 57, 58, 63, 72
Crown Proceedings Act 1988, s 5
Mental Health Act 1990, s191
Mental Health (Forensic Provisions) Act 2007
NSW Trustee and Guardian Act 2009
Protected Estates Act 1983, s 13(1)
Trustee Act 1925, ss 5, 63
Uniform Civil Procedure Rules 2005, rr 7.14, 7.16, 12.7, 14.28, 15.5, 15.12, 31.36Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Gunns Ltd v Marr [2005] VSC 251
P v R [2003] NSWSC 819
R v NSW Trustee and Guardian [2010] NSWDC 1154
R v P (2001) 53 NSWLR 664
Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 at 496
Strinic v Singh [2009] NSWCA 15
Sullivan v Moody [2001] HCA 59; 207 CLR 562
Tame v New South Wales [2002] HCA 35; 211 CLR 317Category: Interlocutory applications Parties: "R" (Plaintiff in person)
"Manly Hospital" (First defendant)
"Health Department NSW"(Second defendant)
"Premier, NSW Government" (Third defendant)
"Police Commissioner, NSW" (Fourth defendant)
"Manly/Northern Beaches Command" (Fifth defendant)
"OPC" (Sixth defendant)
"Eli Lilly" (Seventh defendant)
"Lunbeck Australia Pty Ltd" (Eighth defendant)Representation: Counsel:
Plaintiff in person
Mr E Chrysostomou (First, second, third, fourth, fifth and sixth defendants)
Ms R Francois (Seventh defendant)
Mr P Miller (Eighth defendant)
Solicitors:
Plaintiff in person
IV Knight, Crown Solicitor (First, second, third, fourth, fifth and sixth defendants)
Clayton Utz (Seventh defendant)
Lee & Lyons (Eighth defendant)
File Number(s): 2008/314155 Publication restriction: Order prohibiting the publication or disclosure of the name of the plaintiff, or any detail from within the court file, or from the evidence in the proceedings, that either identifies, or tends to identify, the plaintiff.
Judgment
Table of Contents
Non-publication order
[1]
Background
[2] - [13]
Notices of motion
[14] - [18]
Nature of the underlying case
[19] - [23]
Basis of the relief claimed by the defendants
[24] - [29]
Procedural history
[30] - [31]
Evidence in support of the motions
[32] - [38]
Submissions of the parties
[39] - [52]
Claimed futility of plaintiff's proceedings
[53] - [64]
Significance of irregularity in this case
[65] - [83]
Defects in the statement of claim
[84] - [92]
Lack of due despatch in this case
[93] - [103]
Conclusion
[104] - [107]
Disposition and costs
[108]
Orders
[109]
Non-publication order
Having regard to the plaintiff's legal status as a protected person, at the outset of the hearing of these two contested motions, I made an order prohibiting the publication or disclosure of the name of the plaintiff, or any detail from within the court file, or from the evidence in the proceedings, that either identifies, or tends to identify, the plaintiff. I have assigned to the plaintiff the litigation pseudonym "R" : s 72 of the Civil Procedure Act 2005.
Background
The factual background is largely uncontroversial. Some aspects of the background are evident from the public record of the various court proceedings in which the plaintiff has in the past been involved : Exhibit "1".
The plaintiff is presently aged 75 years. In 1979, when she was aged 43 years, she was seriously injured in a motor vehicle collision. Litigation on behalf of the plaintiff then ensued with respect to her claim for compensation in respect of those injuries. In 2001, on an interim basis, for the purpose of conducting those damages proceedings, the Protective Commissioner of NSW ["OPC"] was appointed as the receiver and manager of the plaintiff's estate. The proceedings in which the OPC was appointed involved consideration of conflicting medical evidence concerning disabilities that affected the plaintiff's cognitive status, her functioning, and her personality: R v P (2001) 53 NSWLR 664.
The evidence discloses that before she sustained her injuries, the plaintiff had functioned at a reasonably high level as an intelligent person in a position of significant responsibility, with advanced qualifications in the nursing profession as well as having a diploma as a teacher.
On 9 September 2003, and following an earlier conclusion of the underlying litigation in favour of the plaintiff, protective orders were made under s 13(1) of the Protected Estates Act 1983 ["PE Act"]. At that time the plaintiff was declared to be a person with a legal incapacity for managing her affairs. The OPC was appointed as the without security manager of the plaintiff's estate: P v R [2003] NSWSC 819. It was common ground between the parties that to date, those orders have not been revoked. The plaintiff therefore remains a person under a legal incapacity within the meaning of s 3(1) of the Civil Procedure Act 2005 ["CP Act"].
As a result of matters that have occurred in the plaintiff's life since her damages litigation had been concluded, and after she had been declared to be a person with a legal incapacity for managing her own affairs, the plaintiff has sought by these proceedings, to claim damages from the various entities she has named as defendants. Her statement of claim refers to several causes of action. I shall return to the wide-ranging nature of the plaintiff's litigation in due course.
The plaintiff's post-injury circumstances, and her desire to pursue the claims that are embodied in these proceedings, have brought her into conflict with the OPC, and the successor in title of that entity, the NSW Trustee and Guardian ["NSWTG"].
In these proceedings, she has made a number of assertions of alleged wrongdoing involving various parties and representatives of Government, including the OPC/NSWTG. As best I can make out from the materials, and from what she has said, key amongst her other allegations, is her claim that her estate has been negligently mismanaged by the OPC/NSWTG, resulting in the financial depletion of her estate.
For present purposes, focussing for the moment only on the position of the OPC/NSWTG in this litigation, a substantive procedural difficulty has emerged at the outset, because the OPC/NSWTG had a relevant conflict of interest. On the one hand, as the manager of the plaintiff's estate, the OPC/NSWTG would ordinarily be the logical choice as tutor to be appointed in respect of any proceedings sought to be brought on behalf of the plaintiff. On the other hand, in this instance, at the outset, the OPC/NSWTG was conflicted and disqualified from being the plaintiff's tutor in these proceedings because the plaintiff sought to name the OPC as a defendant in her proceedings, which she filed in 2008.
The foregoing complication has materially contributed to the circumstance of the plaintiff irregularly commencing, and carrying on, the present proceedings, without the interposition of a tutor or a solicitor retained by a tutor to represent her interests.
Those circumstances have in turn led to procedural difficulty and confusion for the plaintiff, as well as multiple court appearances. There have been numerous interlocutory appearances, not only in these current proceedings, but also in other related proceedings in the Supreme Court. Over time, as has been shown in the evidence, after she had been declared to be a person with a legal incapacity, the plaintiff has nevertheless been involved in a considerable amount of litigation in the Local Court, the District Court, the Supreme Court, the Court of Appeal and the High Court of Australia, representing herself on most of those occasions, except for a few instances where she has received pro bono assistance from both branches of the legal profession.
At no stage has the plaintiff ever been declared to be a vexatious litigant, nor is it suggested here that she is such a litigant. In those circumstances, without examining the factual foundations and detail of the other litigation in which the plaintiff has been involved, it would be unreasonable and inappropriate for me to infer that the plaintiff has in the past, and continues to engage, in unmeritorious litigation.
The only litigation with which I am concerned is the present case, and the previous proceedings in which she was declared an incapable person, as that decision impacts upon the regularity, or irregularity of these proceedings.
Notices of Motion
There are two notices of motion before the court. These have arisen because the underlying proceedings have been irregularly commenced by the plaintiff without the appointment of a tutor and without the involvement of a solicitor. This has occurred and whilst the plaintiff has remained, as a person who is under a legal incapacity.
The first motion in time, which was filed by the first six defendants on 30 September 2010, amongst other things, seeks to either strike out or to dismiss the plaintiff's claim due to procedural irregularity because of the absence of a tutor and a solicitor to represent the plaintiff's interests.
The second motion in time is the plaintiff's request that the litigation be placed in the court's inactive list, or adjourned, so that she can either obtain a tutor to represent her in her claim against the present defendants, or to seek to have revoked the declaration of her status of legal incapacity which occurred on 9 September 2003. She claims that if she were to be permitted to follow either of those options, this would then finally enable these proceedings to be advanced to conclusion.
The motion filed by the plaintiff on 4 February 2011, omitting parts not necessary to recount for present purposes, included the following claims for relief:
"1. For these proceedings (sic) remain in the inactive List or adjourned until Legal Aid locates my Legal Aid Review Committee application, in which I had requested, be held until the appointment of a Tutor and confirmed by the Supreme Court, be processed and determined. ..."
At the commencement of the hearing of these motions, the plaintiff sought an adjournment for the purpose of obtaining legal assistance. I considered that having regard to the procedural history of the matter, including the interest of justice between all of the respective parties, the nature of the underlying litigation, the apparently irregular commencement of the litigation, the numerous interlocutory listings that have already occurred, the need to ensure orderly disposal of the business of the court, and the last minute nature of the application, that the request for an adjournment should be refused. This was so particularly since the defendants had briefed counsel who were ready to proceed, and the plaintiff had been on notice of the hearing of the motions since 7 December 2010, having beforehand determined that she would appear in person in the proceedings : Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; s 56 of the CP Act.
Nature of the underlying case
Before outlining the basis upon which the defendants seek the relief claimed in the first filed motion, and without intending any disrespect to the plaintiff, in order to provide the context for that motion, it is relevant to summarise the nature of the underlying proceedings brought by her.
In her own name and purported right, the plaintiff filed a handwritten statement of claim comprising 26 paragraphs, by which, without the inclusion of structured particulars, in summary she variously alleges against the defendants, that:
(a) she has been subjected to public intimidation and stalking by unnamed police officers, wrongfully arrested and denied access to telephone and other privileges;
(b) she has been prevented from securing her domestic premises against intruders;
(c) she has been incorrectly medically diagnosed and treated by unnamed medical practitioners as being psychotic and delusional, which has resulted in the administration to her of anti-psychotic medications;
(d) she has been wrongfully scheduled and detained by unnamed persons or entities in a mental health facility, without proper psychiatric examination and evaluation;
(e) she has been dealt with in a punitive and wrongful manner, by unnamed persons or entities, in the course of being given medical treatment, including allegations of assault and breach of duty of care owed to her;
(f) she has been denied, by unnamed persons or entities, the opportunity of access to relevant records in relation to hearings before magistrates, causing her to suffer procedural disadvantage and unfairness at unspecified times, when her civil rights and her liberty were being considered;
(g) she has been denied, by unnamed persons or entities, her civil rights, by the wrongful infringement of those rights;
(h) she has been left with permanent impairment of her respiratory and cardiac health, as a consequence of claimed mal-administration of psychotropic drugs by unnamed persons or entities, including as a result of absence of warnings of the potential adverse effects of such medication, which she also claims was the subject of inadequate warnings by the manufacturer of those drugs;
(i) she has been subjected to bias, discrimination, and malfeasance, by various unnamed public officials, including police, medical staff, and staff of the formerly entitled OPC, now the NSWTG.
As a consequence of these matters, the plaintiff seeks to claim damages, including for, amongst other things, stress, anxiety, the experience of flashbacks, and fear concerning apprehended further episodes and encounters of the kind complained of in her statement of claim.
In ordinary circumstances, absent the availability of a suitable tutor, a person who is under a legal incapacity would as a matter of course be represented by the OPC/NSWTG. In this instance, the representation of the plaintiff by that statutory entity has been rendered impossible because that entity has an interest that is in a relevant sense, in conflict and adverse to an interest of the plaintiff.
Although the preceding circumstances that I have outlined have resulted in numerous interlocutory court listings of this litigation between the parties, including some related satellite litigation in the Supreme Court, the present motions before the court are concerned only with the procedural status of these proceedings numbered 104 of 2008, and the legal standing of the plaintiff to continue these proceedings.
Basis of the relief claimed by the defendants
The first, second, third, fourth, fifth and sixth defendants, who are represented by the NSW Crown Solicitor, have brought the first motion seeking to either dismiss, or to strike out, the plaintiff's statement of claim. The application is advanced on three alternative bases.
The first basis of relief, claiming dismissal, asserts that the plaintiff's claim is not maintainable because she has sought to commence, and to continue the proceedings without a tutor and solicitor, contrary to the requirements of UCPR r 7.14, which prohibits a person under a legal incapacity from commencing proceedings except by a tutor.
The second basis of relief, claiming an order to strike out the plaintiff's claim, asserts that the statement of claim discloses no reasonable cause of action against the first, second, third, fourth, fifth and sixth defendants, and that the plaintiff's statement of claim has a tendency to cause prejudice, embarrassment or delay in the proceedings, thus attracting the sanction of strike out, pursuant to UCPR r 14.28, which applies where evidence is provided to demonstrate the presence of the factors contemplated by UCPR r 14.28.
The third basis of relief, which seeks dismissal of the plaintiff's claim generally, is made pursuant to UCPR r 12.7, which provides that proceedings may be dismissed if not conducted with due despatch.
The seventh and eighth defendants support the course sought in the first motion filed by the first six defendants. The seventh and eighth defendants have not filed their own motions seeking strike out or dismissal.
Since the orders sought by the defendants, if granted, would have the effect of fundamentally affecting the plaintiff's civil rights, including by terminating these proceedings, it is relevant and necessary that I set out something of the lengthy and complicated procedural chronology and history of the matter, before moving to a consideration of the merits of the issues calling for decision.
Procedural history
On 22 May 2008 the plaintiff filed her own statement of claim in the Parramatta registry of the District Court. The originating process did not name a tutor nor include any reference to a tutor, and it contained no reference to there being a solicitor retained on her behalf.
The plaintiff's proceedings have previously been the subject of numerous interlocutory listings at Parramatta District Court, including on 18 August 2008, 6 February 2009, 23 October 2009, 20 May 2010, 27 July 2010 and 11 November 2010. There was a subsequent call over/mention of the proceedings in the District Court at Sydney on 7 December 2010, at which time the present motions were allocated a date for hearing. On those occasions, the plaintiff appeared in person, and each of the eight defendants were represented by counsel. A chronological summary of some of the significant events that occurred on those occasions, and in between those occasions, including in other courts, is as follows:
(a) On 18 August 2008, at Parramatta District Court, Delaney DCJ ordered that the proceedings be placed in the inactive list due to a lack of readiness of the proceedings. That course had been opposed by the defendants;
(b) On 6 February 2009, at Parramatta District Court, Delaney DCJ declined to accede to an application made by the defendants, who were seeking, pursuant to UCPR r 12.11, to have the plaintiff's originating process set aside due to non-compliance with UCPR r 7.14. That rule provides that a person under a legal incapacity is required to proceed by way of a tutor. His Honour took that course in order to enable the plaintiff an opportunity to obtain a tutor and regularise the proceedings, and in the meantime, he ordered that the proceedings be stayed;
(c) On 23 October 2009, at Parramatta District Court, Delaney DCJ adjourned a dismissal application by the defendants to 23 February 2010. His Honour made that order to enable the plaintiff a short period of time in which to move the Supreme Court for orders concerning the appointment of a tutor;
(d) On 23 February 2010, at Parramatta District Court, the proceedings were again mentioned before Delaney DCJ. At that time, his Honour reviewed the status of the proceedings and was informed by the plaintiff that she had apparently encountered some difficulties in securing the appointment of a tutor. His Honour then adjourned the proceedings to 20 May 2010, with the indication that on 20 May 2010, it was envisaged that the plaintiff would be required to show cause as to why the proceedings should not be dismissed;
(e) On 23 February 2010 the plaintiff filed in the court's registry at Parramatta, a consent form she states was by her sister, who had agreed to act as the plaintiff's tutor. That document was dated 22 February 2010. That document did not incorporate a certificate by a solicitor, as is required by UCPR r 7.16;
(f) On 18 May 2010 the plaintiff filed a notice of motion in the Supreme Court, returnable the following day, in which she sought removal of the OPC/NSWTG as her tutor. She also sought the appointment of her sister as tutor in these proceedings. That application was heard and dismissed by Ward J on 19 May 2010;
(g) On 20 May 2010, at Parramatta District Court, Delaney DCJ again reviewed the proceedings. At that time the plaintiff and her elder sister, her apparent tutor, attended court. At that time, there was some apparent confusion as to what steps had been or were being taken concerning the appointment of a tutor in the proceedings. His Honour then adjourned the proceedings to 27 July 2010, pending the plaintiff indicating her choice of person to be appointed as her tutor in these proceedings. In adjourning the proceedings, his Honour gave the plaintiff leave to file and serve a notice of motion to seek the appointment of a tutor : 20 May 2010, T11.40;
(h) On 20 July 2010, the plaintiff served on the Crown Solicitor's Office, a sealed copy of a Notice of Intention to Appeal orders made by Ward J on 19 May 2010. It is not necessary to follow the progress of that appeal;
(i) On 27 July 2010, Delaney DCJ again reviewed the proceedings and noted that these proceedings had appeared in his list on some 10 prior occasions, some of which I have already summarised. The transcript of the listing before his Honour on 27 July 2010 clearly shows that his Honour had pointed out to the plaintiff that a number of the defendants had been incorrectly joined to the proceedings and that the plaintiff should instead be proceeding against the State of NSW: 27 July 2010, T8.34; T12.46. On that occasion, at T13.38, his Honour again drew the plaintiff's attention to the requirement that she should proceed by way of tutor, as was required by UCPR r 7.14. In the course of his Honour's review, it was disclosed that on 23 February 2010, a document had apparently been filed in the court registry, which signified the consent of the plaintiff's sister to being appointed as a tutor in these proceedings: 27 July 2010, T16.6. That circumstance was an apparent surprise to the defendants. In the course of his Honour's review at that time, at T17.10, it was indicated to the parties that the matter of the appointment of a tutor for the plaintiff should be regularised. His Honour ordered that the proceedings be stood over to 11 November 2010 for the purpose of a foreshadowed show cause hearing as to why the proceedings should not be dismissed. His Honour also indicated to the parties that any other motions sought by any party were required to be filed by 4.00pm on 30 September 2010;
(j) On 1 September 2010, the plaintiff filed a further notice of motion in the Supreme Court, seeking the same orders that she sought in the motion heard and determined by Ward J on 19 May 2010;
(k) On 23 September 2010, the plaintiff's motion filed in the Supreme Court on 1 September 2010 came before Palmer J, who stood the hearing of the application before him over to 5 October 2010 to enable the plaintiff's proposed tutor, her older sister, to appear for the purpose of determining her suitability to act as a tutor;
(l) On 30 September 2010, the first to sixth defendants filed their current notice of motion seeking strike out and dismissal of the plaintiff's claim;
(m) On 5 October 2010, Palmer J ordered that the plaintiff's named older sister be appointed as tutor in these proceedings numbered 104 of 2008 : R v NSW Trustee and Guardian [2010] NSWDC 1154, at [17]. On that occasion, the plaintiff was represented by counsel who provided her with pro bono assistance. The order made by Palmer J at [17] relevantly stated :
"[17] I order, pursuant to UCPR 7.18(1)(a) and pursuant to the Court's inherent jurisdiction, that Mrs K [the plaintiff's sister] be appointed as tutor for R in proceedings in the District Court of New South Wales 104/2008."
(n) On 11 November 2010, the proceedings again came before Delaney DCJ. On that occasion his Honour reviewed his previous orders, and noted the plaintiff's apparent non-compliance with those orders. In the course of his review, his Honour recorded his view that having regard to his previous involvement in the case management of the proceedings at Parramatta District Court, and having regard to the fact that at the time, he was the only judge rostered to be listed for civil cases at that court, in fairness to the plaintiff and in the interest of justice, it would be better for all concerned if the proceedings were transferred to the District Court at Sydney. His Honour then recused himself from the further hearing of the matter, and then made orders to that effect, to ensure a listing for mention in the District Court at Sydney, on 7 December 2010;
(o) In the course of the hearing of the present motion before me, I was informed by counsel for the defendants, and confirmed by the plaintiff, that in early 2011, Mrs K, the plaintiff's elder sister, had "resigned" from her appointment as tutor, although no formal documents to that effect had been filed or served. It was submitted that this should not only be inferred from the hearsay account given to that effect, but also because the plaintiff's sister, who had appeared at court on 11 November 2010, did not appear in these motions;
(p) On 7 December 2010, the Judicial Registrar fixed the two notices of motion presently before the Court for a hearing to commence on 28 February 2011;
(q) The hearing of these motions proceeded on 28 February and 1 March 2011. The matter was listed for a continuation of the hearing on 2 March 2011 in order to hear final submissions from the plaintiff, as all other parties had concluded their submissions on the previous day. I was informed that unfortunately, the plaintiff became unwell shortly before the resumption of the hearing, and she was taken from the courtroom to hospital by ambulance.
Evidence in support of the motions
In support of their application, the first six defendants read the affidavit of Ms Helen Christina Maamary, which was sworn on 26 October 2011. Ms Maamary is the solicitor employed by the NSW Crown Solicitor who has carriage of the plaintiff's proceedings on behalf of the first six defendants. In essence, her affidavit traced the principal procedural and interlocutory events that have transpired in the proceedings between the time of the filing of the proceedings in May 2008, and the time of the filing of her affidavit. The relevant matters referred to in Ms Maamary's affidavit have been included in the preceding procedural chronology.
Ms Maamary deposed to the fact that at the time of the filing of her affidavit, no correspondence had been received by her from any solicitor retained to act on behalf of the plaintiff in these proceedings, or from the named tutor who had been appointed by the order of Palmer J, made on 5 October 2010 in the inherent, or parens patriae jurisdiction of the Supreme Court.
In her strenuous resistance of the strike out application by the defendants, and in support of her own application to have her proceedings remain in the inactive list, the plaintiff attested to, and relied upon, her own affidavit, which was undated but apparently witnessed, and filed in the Parramatta registry of the District Court on 11 November 2010: Exhibit "A" on the plaintiff's motion. That document, which comprised some 21 paragraphs within 19 unnumbered handwritten pages, incorporated extensive extracts that purported to be quotations from evidence given in other proceedings in which the plaintiff has previously been involved.
The plaintiff also gave brief oral evidence in support of her motion, indicating her desire to pursue the present litigation, including by regularising it through the appointment of a solicitor and to seek to have the 9 September 2003 declaration of her legal incapacity revoked : T51.35 - T52.20. She stated that to that end, she had an appointment with a solicitor at 11.00am on 9 March 2011. She was not cross-examined on that evidence. I also note her primary stated intention was to seek to have the orders declaring her to be legally incapable revoked : T27.37.
The seventh defendant tendered a folder of 15 tabbed transcripts and decisions of the plaintiff's various appearances in the NSW Administrative Decisions Tribunal, the Supreme Court in its various divisions, the Land and Environment Court, the Court of Appeal and the High Court of Australia : Exhibit "1". The seventh defendant otherwise relied upon the affidavit evidence relied upon by the first six defendants.
The eighth defendant did not tender any evidence, and also relied upon the evidence tendered by the first six defendants and by the seventh defendant.
With the consent of the parties, I have reviewed the transcripts of the previous interlocutory hearings in the proceedings in this court to assist with identifying the background and the issues. Those transcripts are within the court file.
Submissions of the parties
In essence, the combined effect of the submissions made on behalf of the defendants is as outlined in the first motion, to the effect that strike out and dismissal of the plaintiff's proceedings is justified because:
(a) the plaintiff's proceedings have been irregularly commenced and carried on. The irregularity arises because the plaintiff is a person who has been declared to have a legal incapacity which requires that she proceed by way of a tutor represented by a solicitor, and she has not done so;
(b) the plaintiff's originating process is defective. It is argued that the plaintiff's statement of claim, as framed, disclosed no reasonable cause of action, is embarrassing and has a tendency to cause prejudice and delay;
(c) the plaintiff's proceedings have not been conducted with due despatch.
The defendants argued that as there was a degree of overlap between these grounds, individually and in combination, these considerations justified the remedies that were sought by the defendants.
It was put against the plaintiff by the defendants that the nature and extent of the procedural defaults inherent in her litigation were hurdles of such proportions, that it would be futile to allow further adjournments or amendments, as the plaintiff's proceedings were be doomed to failure.
In that regard, the first six defendants submitted that the portion of the plaintiff's claim which related to alleged breaches of duty of care on the part of police officers in the discretionary pursuit of their duties, is met with defences that result in immunity from suit on grounds of public policy considerations, including such considerations as were canvassed in Sullivan v Moody [2001] HCA 59; 207 CLR 562 and Tame v New South Wales [2002] HCA 35; 211 CLR 317.
The first to sixth defendants also submitted that the plaintiff's claim against Manly Hospital is also destined to inevitably fail because, even when the plaintiff's allegations are taken at their highest, any alleged acts, neglects and defaults that occurred in relation to the enforced admission of the plaintiff to the Mental Health Unit at Manly Hospital involved the exercise of functions under the Mental Health Act 2007 ["MH Act"] and the Mental Health (Forensic Provisions) Act 1990 ["MH(FP) Act"], and such allegations are met by a defence based upon the operation of s 191 of the MH Act, which limits the liability of police officers and health care professionals exercising functions under the Act.
The defendants submitted, based on these authorities and statutory provisions, that the plaintiff's proceedings should be dismissed as disclosing no reasonable cause of action, and because, on balancing the resulting prejudice to the parties, justice requires that the proceedings be dismissed at this stage.
In her resistance to the orders sought by the motion filed by the first to sixth defendants, and in support of her own argument that the proceedings should be stayed pending the rectification of the obvious procedural difficulties and defaults, the plaintiff pointed to the irremediable prejudice she claimed she would suffer if the proceedings were struck out before she had a chance to seek to revoke the longstanding declaration that had been made concerning her legal incapacity. She also argued that in substance, the criticisms made by the defendants concerning her proceedings really amounted to irregularities, which did not nullify the proceedings. In this regard, she also argued that any such irregularities could be cured, such that the extreme steps of strike out and dismissal, are not warranted in the circumstances of her case.
As a result of the unexpected indisposition of the plaintiff just before she was due to present her oral arguments on 2 March 2011, and in view of uncertainty as to when the plaintiff would be in a position to be fit enough to deliver her arguments, the proceedings were delayed in their conclusion. At that time, the proceedings had reached the stage where the defendants had concluded their submissions and all that was left was to hear the plaintiff's submissions before considering the matter and delivering judgment on the motions.
During the delay so caused, I undertook an evaluation of the arguments put forward by the defendants. In the course of that review, it became clear that the legal arguments relied upon by the defendants either stood or fell according to their assessed merit and context, noting that such arguments by the defendants were explored during their submissions.
In those circumstances, following the conclusion of the submissions by the defendants, and having formed a view of the merit of the arguments put by the defendants, which view was not adverse to the plaintiff's position at that stage of the proceedings, I determined that in the interests of expedient justice, and having regard to the requirements of s 56 of the CP Act, whilst it would normally be the case that the requirements of procedural fairness mandated that all parties be given the opportunity of making submissions in support of their respective interests, I would dispense with the need to receive submissions from the plaintiff, because of the unusual circumstances that had arisen.
I took that view because the orders that would necessarily flow from the views I had formed, were in substance those that were sought by the plaintiff in her motion.
Accordingly, given the unusual circumstances in which the further availability of the plaintiff was uncertain, and given the importance of dealing quickly with the issues at stake, I considered that the requirements of justice in this case mandated that I take the unusual course of proceeding to deliver these reasons for judgment at the earliest available opportunity. I took that view notwithstanding that I had not heard submissions from the plaintiff, but also having regard to the prospect that the plaintiff may continue to be indisposed at this time and for some time, during which delay would not assist the parties.
To allow for the possibility that the plaintiff may not be present when judgment is delivered, although she has been notified of the listing, in my view, any absence of the plaintiff at the time of delivery of my reasons can be dealt with by the court registry ensuring that a copy of these reasons are provided to the plaintiff, as well as requiring that the sixth defendant, the trustee of the plaintiff's estate, and her legal manager, also forthwith provide the plaintiff with a copy of these reasons.
In taking this course, it is clear that if consequential issues were to arise, these could be appropriately dealt with by granting the parties liberty to apply on notice, should that prove to be necessary.
Claimed futility of the plaintiff's proceedings
In the submissions made on behalf of the first to sixth defendants, the point is made that apart from the allegations made against the sixth defendant, namely the OPC/NSWTG, the plaintiff's claim against them arises from allegations of false arrest, wrongful administration of medication and associated allegations of breach of duty of care. These matters are said to result in a conclusion that it would be futile to pursue the claims made by the plaintiff.
Although those allegations by the plaintiff are to a degree intermingled, by their nature, I consider that they should be capable of differentiation as to which particular assertions apply to which particular defendants or entities that are claimed to be liable to the plaintiff. These matters raise defects of form and particulars, which I consider to be irregularities, an issue I will review in a separate analysis.
The futility argument that has been raised by the first to sixth defendants as being a complete answer to the plaintiff's claim, merits close attention.
On first analysis, it is apparent that the futility argument, based as it is on public policy considerations, and the considerations arising from a potential defence available under s 191 of the MH Act that protects police and health care professionals in the discharge of their duties, cannot apply to the sixth defendant, the OPC/NSWTG. This is because the conduct and activities of that defendant are not caught by that legislation. In this regard, the first to fifth defendants are not in the same interest as the sixth defendants on the futility point. Neither are the seventh and eighth defendants for that matter.
That conclusion must mean that even before any deeper analysis is undertaken, at the very least, the plaintiff is not precluded from proceeding against the sixth, seventh and eighth defendants on account of alleged futility. Nothing that emerges from the authorities of Tame and Sullivan, which were relied upon by the first to sixth defendants in order to advance the public policy component of the futility argument, can alter that position. These are factors that must weigh heavily against a strike out and dismissal of the plaintiff's claim.
58. A necessary consequence of the foregoing conclusions must mean that any argument to the effect that the plaintiff's proceedings are futile, must fail as regards any application it might have to the whole of the plaintiff's proceedings. This leads to an analysis of the futility argument as regards the other entities pursued by the plaintiff, which I shall for convenience refer to in short form as the police and health care professionals, to use the language of s 191 of the MH Act.
In following through the required consequential analysis, in my view, the reliance by the first to fifth defendants on s 191 of the MH Act as a defence to the plaintiff's claim is problematic. This is because for that section to apply as a defence to the plaintiff's claim to render the claim futile, the impugned conduct must have been carried out in good faith in the course of the exercise of functions permitted under the MH Act: s 191(1).
The issue of the existence of good faith is a factual matter to be proven as a defence. In the context of the claims made by the plaintiff against the police and health care professionals, an allegation involving the absence of good faith is not something that the plaintiff must prove as a negative proposition. The burden of proving such matters must necessarily rest with the defence. Once the defence raises the issue of conduct, alleged to have been carried out in good faith, if appropriate, it is something that might merit evidence or a reply. However, until that point in the evidence is reached, the plaintiff is not obliged to prove a negative. In my view, a defence of good faith, as contemplated by s 191, must be proven, and not merely assumed, having regard to the terms of the section.
In the context of a strike out motion of this kind, I consider the foregoing analysis reveals that any reliance upon a defence based on s 191 of the MH Act, or for defences based on public policy considerations as explained in Tame and Sullivan to apply, this must be based on formal evidence rather than assumption. For a s 191 defence to apply, this must necessarily involve a merits based analysis of the evidence. That is a necessarily different consideration to that which must be undertaken in a strike out and dismissal application of the kind made by the first to sixth defendants in this instance. In such an application, the allegations made by the plaintiff must be taken at their highest, and this includes the assertions of wrongful arrest and the administration of wrongful treatment, which necessarily excludes the concept of good faith.
Whilst it can be readily envisaged that at a hearing on the merits of the plaintiff's case, if it is available, short evidence might be given by police and health care professionals in an endeavour to enliven the potential good faith defences now raised in interlocutory argument. However, in the context of this interlocutory application, the merit of such defences cannot be assessed without an evaluation of specific evidence directed to the matters here in issue. The defendants called no such evidence in this interlocutory application.
In my view, another flaw in the futility argument relied upon by the first to sixth defendants relates to the specific content of s 191(2) of the MH Act. That provision states that nothing in the MH Act, or the MH(FP) Act, or in the related regulations, relieves a health care professional from liability for carrying out medical treatment on a patient, if the treatment had been carried out with the consent of the person affected. The essential proposition relied upon by the plaintiff is that there was no such consent on her part: Paragraph [14] of plaintiff's statement of claim.
For the reasons I have outlined, I consider that the argument that the plaintiff's proceedings are futile, must be rejected.
Significance of irregularity in this case
It seems to me that there are three strands to the irregularity argument relied upon by the defendants, the first being the fact that the plaintiff's proceedings were commenced and continued without a tutor and without a solicitor, which was said to be an irremediable defect, the second being that of insufficient particulars of the claims made by the plaintiff in her statement of claim, and the third being that no expert reports were filed with her statement of claim.
There can be no dispute that the proceedings were commenced and continued by the plaintiff without the intervention of a tutor and a solicitor retained by a tutor, contrary to the requirements of UCPR rr 7.14 and 7.16. There can be no dispute that the plaintiff's statement of claim was deficient with regard to the incorporation of necessary particulars that were required to be included in order to comply with UCPR rr 15.5 and 15.12. There can also be no dispute that the plaintiff's proceedings were filed in the Professional Negligence List without a prior exempting order excusing the need for accompanying reports by experts setting out opinions suggesting the allegations of breach of duty of care by each defendant, the general nature of the damage claimed and the causal relationship alleged between the alleged events and the claimed damage : UCPR r 31.36.
Further, there has been no demonstrated justification to invoke a discretion for the court to proceed to otherwise order, namely, an order to the effect that the plaintiff is entitled to permission to further carry on the proceedings without the interposition of a solicitor to act on behalf of a tutor.
It is relevant to examine the circumstances which, have led the plaintiff to pursue a course that attracts the criticisms made by the defendants in the first motion.
In my view, the starting point for a consideration of these circumstances is to identify the fact that the plaintiff is not only a person who labours under a legal incapacity, but she also carries grievances against her trustee or manager, the OPC/NSWTG, in circumstances where that trustee has been imposed upon her against her will. She sees the conduct of her legal affairs, and actions taken by the OPC/NSWTG in the course of conducting her legal affairs, as being contrary to her interests to the extent that she believes her right to pursue remedies for what she believes are legitimate claims against various persons and entities has been hindered, and at times thwarted. The plaintiff seeks to pursue a legal remedy for such grievances, amongst others.
It seems to me that this has become the genesis of a circular problem for the plaintiff, which she has described as a "Catch 22". Amongst the wide ranging allegations she makes in her statement of claim against the various defendants, as developed in oral discussion, is the complaint that the very organisation charged with the responsibility of managing her legal and financial affairs has not properly looked after and managed her interests. This has led the plaintiff to seek to make a claim for damages against the sixth defendant. There is no dispute that the OPC/NSWTG resists the course sought by the plaintiff, and in that regard it has not acted as her tutor in the pursuit of that claim, and in respect of the other subject claims generally.
The inevitable conclusion is that the plaintiff has irregularly commenced the proceedings by the filing of the statement of claim without a tutor or a solicitor. The seventh defendant has submitted that this was only a purported filing, and it should be regarded as a non-filing due to irregularity. In my view, that submission amounts to the equivalent of saying that the steps taken by the plaintiff are in effect nullified by non-compliance with the rules that have been identified.
In my view that argument should be rejected because of the operation of s 63 of the CP Act, which provides that where there has been a failure to comply with the CP Act, or the Uniform Civil Procedure Rules 2005, with regard to any requirement whether in respect of time, place, manner, form or content, such a failure is to be treated as an irregularity, and does not invalidate the proceedings or any step taken in the proceedings : s 63(1) and s 63(2) of the CP Act.
In my view the broad discretion conferred by s 63 requires that I treat the identified irregularities as non fatal to the proceedings when such irregularities are viewed in the context of the requirements of ss 56-58 of the CP Act. The overriding purpose to be observed in administering the Act and related rules is to facilitate a quick, just and cheap resolution of the issues to be determined between the parties.
In my view, in this case it would be unjust and contrary to the spirit of s 56 of the CP Act to deny the plaintiff an opportunity to pursue her claim simply on the basis of non-compliance with the procedural requirements of the rules to this point. That would be the inevitable effect of acceding to the strike out and dismissal orders sought by the defendants. Whilst I am mindful of the fact that the continuation of these proceedings would without doubt place a burden of uncertainty, delay and further cost upon the defendants, such a burden should not in this instance be dissolved at the cost of denying the plaintiff the opportunity to pursue her claim against the defendants. However, I consider that any exercise of discretion in favour of the plaintiff to enable her action to be maintained must be tempered and made conditional upon and subject to ensuring that the proceedings are appropriately regularised in respect of any want of compliance with the rules from this point onwards.
In my view, there is a relevant distinction to be made between a past history of non-compliance with the rules, resulting in past irregularity, and any ongoing non-compliance with the rules resulting in an ongoing prejudice to the defendants.
In this regard, I consider that it is important to observe, when excusing the fact of past non-compliance with the rules, that this occurred during a period when the court was seeking to supervise and case manage the procedural problems inherent in the plaintiff's litigation with a view to having the obvious defects addressed and cured. This was in the context of the plaintiff being a person under a legal incapacity. This clearly emerges from an overall view of the course of listings before Delaney DCJ, who undertook a case management approach, including by requiring the plaintiff to make appropriate applications and amendments, including applications to the Supreme Court.
As the plaintiff continues to remain a legally incapable person I consider that to make the orders sought by the defendants would be unduly punitive in the described circumstances. The position would be very different if, after the plaintiff was given further due opportunity to redress the irregularities that have been identified, she continued to ignore the requirements of the rules. In this regard, the effect of the defendants' submissions on the significance of the patent procedural irregularities in the proceedings, combined with the long period over which irregularity has remained unaddressed by the plaintiff, including in the context of numerous listings at which attempts were made to seek rectification of the procedural problems, is to say "enough is enough", based on the considerations outlined in the decision of the High Court in Aon.
If the plaintiff had not been declared to be a person who was legally incapable, I would have perhaps been inclined to accept that submission. However, as she is legally incapable, I consider that the critical point where "enough is enough" has not yet been reached.
The seventh defendant, supported by the eighth defendant, has submitted that the plaintiff's medical condition at the time the order was made declaring her to be affected by legal incapacity, as was observed in the multiple passages to which I have been referred in the judgment of Barrett J in P v R, and which was typified in that case by her reactions and by the manner in which she dealt with problems and issues that confronted her, were still evident in her presentation at the hearing of these motions. The seventh and eighth defendants submitted that those circumstances do not auger well for the future conduct of these proceedings in a regular manner, nor do they provide a framework for any confidence or optimism that the past procedural defaults within the plaintiff's proceedings, will not continue.
In my view, for a number of reasons, it is not necessary to carry the consideration of the issue to those lengths in the absence of the tender of current medical evidence, or the tender of the medical evidence that was before Barrett J, when his Honour made the declarations as to the plaintiff's legal incapacity. I consider that it would be inappropriate for me to make my own observations of what could be construed to be of a diagnostic character, as I apprehend to have been the thrust of the submission: Strinic v Singh [2009] NSWCA 15.
It seems to me that the submission under consideration is reliant upon a presumption of the continuance of medical conditions of a psychological nature for over almost a decade, where there is no medical evidence that supports such a view. Instead, in the circumstances, I consider it is simply sufficient for me to recognise that the declaration of the plaintiff's legal incapacity that was made by Barrett J on 9 September 2003, has not been relevantly revoked, and thus continues to have full force and binding legal effect unless and until it is revoked or set aside.
In this regard, in the exercise of the discretion conferred by s 63 of the CP Act, I consider that to strike out the plaintiff's proceedings on account of irregularity would be a wrong exercise of discretion in the face of unchallenged evidence that the plaintiff has found a solicitor with reputed skill in this area of practise. The unchallenged evidence of the plaintiff is that she has an appointment to see that solicitor on 9 March 2011 with a view to preparing an application to the Supreme Court to seek to revoke the currently prevailing declaration of legal incapacity. In those circumstances, I consider that strike out and dismissal orders would be inappropriate.
I now turn to a consideration of the arguments concerning the significance of the defects in the plaintiff's statement of claim.
Defects in the statement of claim
There is little doubt that the plaintiff's statement of claim, as an originating process, has some serious deficiencies, both as to the joinder of parties, and as to the form of the document itself. In this regard:
(a) the plaintiff has incorrectly joined the Premier of the State of NSW, the Health Department, the Police Commissioner and the Manly / Northern Beaches Command of the Police Service as defendants, instead of proceeding against the State of New South Wales in respect of those named defendants : s 5 of the Crown Proceedings Act 1988;
(b) the plaintiff has incorrectly joined Manly Hospital instead of naming the appropriate area health service responsible for the operation of that entity, as a defendant, namely, the Northern Sydney Central Coast Area Health Service;
(c) the seventh defendant, which appears to be a corporation, appears not to have been correctly or fully named.
There are other obvious defects evident within the plaintiff's statement of claim concerning the absence of particulars with regard to the various claims made by the plaintiff. In the course of submissions I was informed that there have been no attempts on the part of the defendants to seek any relevant exchanges of correspondence that might provide the particulars required by UCPR rr 15.5 and 15.12. Those particulars would be expected to have been included in a properly drawn statement of claim with regard to any factual matters concerning any relevant conduct relied on, including the alleged negligence, the alleged breach of duty of care, and the claimed alleged injury, loss and damage, and how these matters related to particular defendants or entities for which a particular defendant may be legally liable. These are matters that are second nature to a legal practitioner versed in the basic procedural requirements for the commencement of litigation.
However, I consider that the above omissions, even when taken together, do not necessarily compel the result that the proceedings have no merit and should therefore be struck out. In my view, all of these matters that I have identified are matters of form and not of substance. As such, in my view they can and should be easily remedied by appropriate amendment to ensure that the parties are correctly named and joined. I do not consider these defects to be of such a character as to be fatal to the plaintiff's proceedings, and therefore incapable of rectification: ss 64 -65 of the CP Act.
The plaintiff has alleged, without particulars, that she has been affected by unspecified negligence and breach of duty of care. No doubt, a skilled pleader would have framed the document differently. However, applying the appropriate test, and taking the plaintiff's allegations at their highest, I consider that the threshold requirements for pleading a claim in tort are satisfied, albeit barely so. The plaintiff has made basic allegations of fact, breach of duty, injury, loss and damage. In those circumstances, I do not consider the statement of claim to be so defective as to disclose no arguable cause of action: UCPR r 14.28; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125.
The defendants have argued that the plaintiff's statement of claim causes prejudice and embarrassment within the meaning of UCPR r 14.28. The argued prejudice arises from the embarrassment which in its technical legal sense refers to a pleading as being unintelligible, ambiguous or so imprecise in its identification of the alleged material facts that it does not give the opposing party proper notice of the substance of the case it is required to meet : Gunns Ltd v Marr [2005] VSC 251.
Whilst the form of the plaintiff's statement of claim properly attracts elements of such criticisms, I consider that since the threshold of a basic form of a pleading of a claim in tort has been demonstrated, the defect that has the potential to cause embarrassment and prejudice can be readily cured by amendment to produce a proper pleading : Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 at 496.
Accordingly, notwithstanding the identified deficiencies as to form in the statement of claim, I consider that the defendants have not made out their case for a striking out or a dismissal of the plaintiff's proceedings on account of an alleged failure to disclose a cause of action in the originating process. Similarly, I do not consider the defendants to have been relevantly prejudiced. In the sense that the statement of claim could be embarrassing as it is deficient as to particulars, this overlaps with the irregularity problem, and as such, I think it is a curable problem.
That said, nothing I have said thus far should be taken to condone the deficient state of the content of the plaintiff's statement of claim. There is no room for doubt that the formulation of the plaintiff's claim needs concerted analysis and reformulation to identify with precision, clarity and particularity, the specific acts, neglects and defaults alleged against each defendant or entity pursued by the plaintiff. The claim sought to be made by the plaintiff is without doubt one of considerable complexity. It is one which, will require a skilled and experienced evaluation of the case, and that analysis should ultimately be reflected in the framing and the particularisation of an amended statement of claim.
I observe that an order has already been made in favour of the plaintiff by Delaney DCJ on 27 July 2010 permitting her to amend her statement of claim. This is a topic to which I will return in my concluding remarks after my consideration of the claim by the defendants that there has been a lack of due despatch in the conduct of the proceedings.
Lack of due despatch in the conduct of the proceedings
There is no doubt that to date, the proceedings have followed a slow and tortuous path, without signs of procedural or evidentiary progress. That state of affairs seems to me to be largely due to a confluence of factors, first, the matter becoming bogged down with procedural difficulty because the plaintiff has acted for herself without the benefit and assistance of a skilled legal practitioner, and secondly, because of the plaintiff's unresolved issues to do with the appointment of a tutor, which is a by-product of her complicated relationship with the OPC/NSWTG.
Making due allowance for the plaintiff's continuing legal incapacity, I am satisfied that the plaintiff nevertheless genuinely intends to obtain legal assistance to seek to have the declaration of her legal incapacity revoked. I accept her evidence in that regard, which I consider to have been earnestly given and argued. I accept that she intends to pursue that course with the aim of terminating any ongoing need for management of her legal affairs, thereby also obviating any further need for a tutor to be appointed for these proceedings.
I have accepted her evidence that she has made an appointment with a solicitor experienced in this area of practise, and I note that the appointment is scheduled for 9 March 2011. She was not cross-examined in that regard, or at all. I consider that to be a matter of some significance that should be weighed in her favour on a consideration of the issues that arise on these motions.
In the light of those factors, I consider that notwithstanding any claimed lack of due despatch that has been evident in the proceedings to date, it must be remembered that any such lack of due despatch was in relation to the conduct of litigation by a person with undoubted lack of legal capacity, requires an entirely different consideration to that which might be the position in relation to a litigant who at all relevant times must be taken to have remained sui juris and fully competent to manage their litigation without the requirement of having a tutor.
In reaching the foregoing conclusion, I am not able to, nor do I need to, express a concluded view as to the likelihood of the plaintiff succeeding in achieving her objective of revoking the declaration of her legal incapacity. That is because it is not an issue that I have to determine. In that regard, I have not had tendered before me the requisite evidence that one would ordinarily expect to see assembled in support of such application. That said, having regard to the careful exposition of the evidence by Barrett J, in P v R when he declared the plaintiff to be a person with a legal incapacity, it is obvious that the task ahead of the plaintiff is a daunting one. It is also evident from the plaintiff's history that before now, she has not seemed to have been fazed by daunting tasks. So much is evident from her numerous court appearances, many of them in person. In this regard, I take the opportunity of observing that it would seem to me to be better for all concerned, for efficiency of effort, cost and the more efficient use of court resources, if the plaintiff obtained skilled legal assistance, and took advice on the issues that confront her.
In argument, it was put against the plaintiff by the defendants that the plaintiff's problems of a medical and personality nature, including an obsession to seek to right wrongs she perceives have been done to her in the past, have adversely affected her ability to function, are so ingrained in her that they most probably continue to affect her now, and will continue do so into the future in the same way, such as to render any prospect of an application for revocation of the legal incapacity declaration to be extremely remote, to say the least. I do not accept that I must express a view on that issue, particularly since I have not been given any medical evidence to assist in the suggested evaluation of that issue.
In considering the issue of alleged lack of due despatch in the advancement of the proceedings to date, overall, I consider that a material contributing cause of the plaintiff's inability to proceed, is as a consequence of the allegations of malfeasance she makes against her trustee the OPC/NSWTG. In making that conclusion, I must also state that this is not the occasion on which to form a concluded view on the justification, if any, for the plaintiff's opinions in that regard.
However, I observe that this is an apparently anomalous situation, and one for which I have been informed, that the OPC/NSWTG apparently has no formal internal administrative procedures in place, other than for the plaintiff to take any dispute she may have with the OPC/NSWTG to the NSW Administrative Decisions Tribunal ["NSWADT"].
In my view that procedural anomaly concerning the administration of the declaration of her legal incapacity as has been revealed and identified in this case, is a surprising and unexplained one, bearing in mind the OPC/NSWTG is a large organisation charged with the obligations of fulfilling an important public function and duty with regard to the legal needs of persons who are under a legal incapacity. It is a matter that was raised with counsel during the course of the hearing.
In my view, it has not been satisfactorily explained as to why, for example, the OPC/NSWTG, being a statutory trustee of the plaintiff's estate, did not approach the Supreme Court in its Equity or Protective jurisdiction, for directions and advice when it became apparent that it was in a situation of conflict with the plaintiff on a matter of legal procedure : s 63 of the Trustee Act 1971. The subject matter of a procedural dispute between the plaintiff and the OPC/NSWTG would relevantly appear to be well within the definition of property : s 5 of the Trustee Act 1971.
If I am wrong in my analysis of the availability of an avenue for advice under s 63 of the Trustee Act 1971, I nevertheless consider that this identifies a question that deserves legislative consideration and the attention of the Law Reform Commission. It is not difficult to envisage commonplace circumstances occurring where the interests of a protected person could possibly conflict with the views of the trustee. In such circumstances, in my view, it would be unconscionable, and antithetical to the interests of justice, that a dissatisfied person who is under a legal incapacity could be thwarted from bringing proceedings against a statutory trustee, especially one that had been imposed upon that person, for want of the appointment of a tutor who could take responsibility and appropriate advice, and act as an appropriate filter for issues that may arise. A reference of such a dispute to the NSWADT does not appear to be an appropriate mechanism for all circumstances, especially where a person with a declared legal incapacity needs a tutor to mount and progress a claim of alleged malfeasance against the trustee in a case such as this.
Conclusion
For the reasons I have outlined, I have concluded that the deficiencies and procedural problems that have led the defendants to file this strike out application are not such as would warrant the sanction of a strike out and dismissal of the plaintiff's proceedings at this stage.
I take this view because I consider the identified deficiencies to be curable, and the potential prejudice to the plaintiff if her proceedings were to be dismissed, would outweigh the burdens on the defendants in being required to see the litigation to its conclusion. That prejudice to the plaintiff would necessarily arise due to the limitation bar which could prevent the plaintiff from commencing again in relation to the same causes of action.
The plaintiff clearly wants to progress this litigation. This is evident from the fact that she has persisted with it for so long despite the obvious procedural problems. This is also evident from the earnest and determined way in which she has approached the matter. The stay which she has sought and which she will obtain by the orders I will make, will provide her with the opportunity to seek advice and assistance in dealing with the procedural deficiencies in her statement of claim. She will also be provided with the opportunity to address the issue of whether or not she should remain subject to the declaration that she is incapable of managing her own legal affairs or whether she still requires a tutor and solicitor to progress these proceedings.
On any view, the task before the plaintiff is a daunting one. The latter issues can only be resolved by order of the Supreme Court in its protective jurisdiction. In the meantime, until these issues are resolved, I consider that these proceedings should be stayed. In the event that a subsequent order is made dissolving this stay, the further conduct of the proceedings will obviously require some closely supervised case management in order to facilitate the objects of s 56 of the CP Act.
Disposition and costs
Having concluded that the motion filed by the first six defendants should be dismissed, and having granted the stay sought by the plaintiff, in my view it follows that the general rule as to costs should apply. As a consequence, in respect of each motion, the defendants should pay any legal costs and disbursements that the plaintiff may have incurred. Such costs would be on the ordinary basis, unless an entitlement can be shown for a different order to be made.
Orders
I make the following orders:
(a) The motion filed by the first six defendants seeking to strike out and to dismiss the plaintiff's proceedings is dismissed;
(b) Order that the proceedings brought by the plaintiff be stayed until the further order of this Court, or the order of the Supreme Court in its Protective Division;
(c) The defendants are to pay the plaintiff's costs of each motion on the ordinary basis unless otherwise ordered;
(d) The exhibits may be returned;
(e) Liberty to apply on 7 days notice if further orders are required;
(f) The court registry and the sixth defendant are to provide the plaintiff with a copy of this judgment.
**********
Decision last updated: 07 March 2011