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New South Wales |
Case Name: | Maria Saravinovska v Krste (Chris) Saravinovski; ; Chris Saravinovski v George Saravinovski (No 5) |
Medium Neutral Citation: | [2015] NSWSC 128 |
Hearing Date(s): | 17 & 18 February 2015 |
Date of Orders: | 19 February 2015 |
Decision Date: | 27 February 2015 |
Jurisdiction: | Equity Division |
Before: | Kunc J |
Decision: | Tutor not removed; leave to use certain affidavits granted |
Catchwords: | PRACTICE – Parties – Party becoming incompetent during proceedings – Appointment of tutor – Role of tutor – Whether holder of power of attorney can be appointed as tutor – Obligations of solicitor certifying that tutor has no adverse interest – UCPR Pt 7, r 7.18 |
Legislation Cited: | Civil Procedure Act 2005 (NSW) |
Cases Cited: | Bobolas v Waverley Council [2012] NSWCA 126 |
Texts Cited: | Daniell’s Chancery Practice, 5th Edn (Stevens & Sons, London, 1871) |
Category: | Procedural and other rulings |
Parties: | 2011/361081 |
Representation: | Counsel: |
File Number(s): | 2011/361081 and 2012/39748 |
Publication Restriction: | No |
JUDGMENT
Summary
On 17 and 18 February 2015 (being the 24th and 25th hearing days of this unhappy and intractable family dispute) I heard two applications. Without disrespect I shall refer to the parties and other family members by their Christian names.
The two applications were:
(1)An application by George and Maria to remove Louie as Chris’ tutor.
(2)An application by George and Maria that all of Chris’ affidavit evidence be excluded.
The applications both arise from the unusual circumstance that during the course of the proceedings a party, Chris, has been found to be a person under legal incapacity.
As has been the case throughout the hearing, Mr G.A. Sirtes of Senior Counsel appeared with Ms A.L. Avery-Williams of Counsel for George and Maria. Ms E.A. Cheeseman of Senior Counsel appeared with Ms J.A. English of Counsel for Chris.
At the conclusion of the argument I informed the parties of the outcome of the applications. I formalised that outcome on 19 February 2015 by making these orders in each of the two proceedings before the Court:
The Court orders that:
1. In relation to Maria and George Saravinovski’s application to remove Louie Saravinovski as the tutor of Chris Saravinovski:
(a) Pursuant to UCPR Pt 7 r 7.18 the need for a notice of motion and for service of that notice of motion on any person is dispensed with;
(b) The application is dismissed.
2. Pursuant to UCPR Part 35 r 35.2(3) Chris Saravinovski may use in these proceedings his affidavits sworn 7 February 2012, 5 March 2012, 4 June 2013 and 16 September 2013.
3. The costs of both applications are to be the parties’ costs in the proceedings.
These are the reasons for those orders.
The facts
For the purposes of the applications the facts were not in dispute.
The Saravinovski family is of Macedonian origin. It is now divided into two camps. The first includes Chris (the 84 year old patriarch) and his adult sons Louie and Bill. The opposing camp includes Chris’ other son George, Maria (George’s wife) and their children.
By statement of claim filed on 11 November 2011 Maria commenced proceedings against Chris (“Maria’s proceedings”). Those proceedings raise claims to Chris’ property including under the Property (Relationships) Act 1984 (NSW) and in estoppel. In a nutshell, Maria’s case is that she entered into what might be described with no disrespect as an arranged marriage with George which brought her to Australia from Macedonia when she was aged 19. She says she did so in reliance on promises made to her by Chris about the benefits she and George would ultimately receive if, among other things, she cared for Chris and his now late wife Rada. Maria asserts she has fulfilled her side of the alleged arrangements but Chris has not.
By summons filed on 7 February 2012 Chris commenced proceedings against George (Maria’s husband) (“Chris’ proceedings”). On 8 March 2012 Ball J ordered that Chris’ proceedings continue on pleadings in accordance with the rules. Chris sues George for $800,000 plus interest in reliance on a mortgage George and Bill allegedly gave Chris. George has cross-claimed challenging the validity of the mortgage and raising estoppels against Chris.
At various directions hearings the Court made orders for the parties to file affidavit evidence. Affidavits sworn by Chris on 7 February 2012, 5 March 2012, 4 June 2013 and 16 September 2013 were filed (the “Earlier Affidavits”).
By general power of attorney made on 30 August 2013 Chris appointed Louie and Bill as his attorneys jointly and severally (the “Power”). In early 2014 the Power was registered in the Deeds Index maintained by Land & Property Information New South Wales.
In the course of case management of the proceedings I directed that the critical parts of the evidence of the main protagonists, including Chris, should be given viva voce. I also extended the original fixture for the hearing from 10 days to what became 19 days. This was for a number of reasons including a recognition by the parties that their original, bona fide estimate was too optimistic and because Maria and Chris’ evidence, amongst others, would have to be given through a Macedonian interpreter.
The hearing before me commenced on 14 October 2014. Maria’s proceedings and Chris’ proceedings are being heard together with the evidence in one being evidence in the other.
To my observation Chris was present through much of the hearing in 2014. On 31 October 2014 (the 13th day of the hearing) he was called to give his evidence in chief. Those parts of his Earlier Affidavits which dealt with topics not to be the subject of viva voce evidence were read.
When Chris began to give his evidence his answers were frequently non-responsive, repetitive and, when he answered in English, very hard to understand. Whether this was due to age, language or obstinacy rather than cognitive problems was unclear. What was clear was that taking his evidence in chief viva voce would be a very long, laborious and not necessarily fruitful process. By that time it was also clear that the proceedings would not finish in the time allotted and would have to be adjourned to 2015 part heard.
Given the difficulties that had arisen in relation to Chris’ evidence the Court revoked its earlier direction in relation to taking Chris’ evidence in chief and made directions for his evidence in chief to be given by affidavit, supplemented with any further affidavits that might be filed during the adjournment. The hearing was adjourned to 10 February 2015.
Further affidavits sworn by Chris on 22 December 2014 and 10 February 2015 (the “Recent Affidavits”) were served.
On 11 February 2015 Chris attended Court for cross-examination. His Recent Affidavits were read. In my previous judgment in these proceedings (MariaSaravinovska v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 4) [2015] NSWSC 64 (“Saravinovski (No 4)”) I set out my ex tempore account of what then occurred:
5. This morning Mr Sirtes of Senior Counsel commenced his cross‑examination of Mr Chris Saravinovski. Mr Saravinovski was giving his evidence with the assistance of an interpreter. Initially, Mr Saravinovski’s pattern of non-responsive and argumentative answers left me with the impression that he was refusing to engage with the process of these proceedings or the necessity for him to give proper and truthful evidence under cross-examination. However, as his evidence progressed, I became less certain that impression was correct. In particular, whilst questions were interpreted into the Macedonian language, Mr Saravinovski insisted on answering in English. With no disrespect to his ability to speak the English language, his level of fluency in English meant that, were he to continue to give evidence in English - which came across as quite broken in many respects - he was not going to be helping himself or the Court to understand his evidence. I ultimately asked him on several occasions that he give his evidence in Macedonian. I understand that request was repeated by Ms Cheeseman during adjournments which I allowed during the morning.
6. When a further attempt to continue his cross-examination was made, my concern was heightened as to both his competence and capacity when, at least according to answers he gave, there appeared to be a real doubt as to whether he understood as to what language he was giving his answers in. That, and his general demeanour, at least arguably evidenced something of a more cognitive problem rather than merely a difficult, unco-operative or recalcitrant witness. I took the lunch adjournment early to enable Ms Cheeseman and her team to come to their own view in relation to Mr Saravinovski’s condition and what application, if any, they thought should be made.
For the reasons set out in Saravinovski (No 4) I appointed Louie as Chris’ tutor on Louie’s application. In addition to being one of Chris’ attorneys under the Power, I was informed by Ms Cheeseman SC from the bar table that Chris had also appointed Louie and Bill as his enduring guardians.
On 13 February 2015 the Court made orders with the consent of the parties appointing Associate Professor Tuly Rosenfeld, a specialist geriatrician, as a Court expert to examine Chris. Dr Rosenfeld examined Chris later on the same day.
In lieu of a written report Dr Rosenfeld gave his report to the Court viva voce on 16 February 2015. He was questioned by both parties. As a result of Dr Rosenfeld’s evidence the parties accepted – and the Court finds – that Chris is now a person under legal incapacity for the purposes of UCPR Pt 7 r 7.18.
Based upon Dr Rosenfeld’s evidence the Court also finds:
(1)Chris suffers from vascular dementia. His condition is about half way between moderate and severe.
(2)His illness is a significant one which affects his higher level cognitive function, short term memory and also reasoning to the extent that he is not able to reason fully with the benefit of memory and understanding.
(3)His illness has been present and progressing gradually for at least three to four years.
(4)Chris is and has been able to express strong views about matters relating to himself such as where he should live and what care he requires. However, he is unable to provide instructions about a complex matter such as these proceedings because he cannot process the context and information that would be necessary to do so.
(5)His short term memory is very poor. His recollection of historical events is largely biographical, can only be recovered with time and difficulty and is not likely to be reliable. He is suggestible.
(6)His ability to deal with questions will be better on some days than others. It is likely to be better when he is in a familiar environment and the questions are being asked by people he knows and trusts.
Tutor - power
Mr Sirtes SC moved from the bar table to remove Louie as Chris’ tutor under UCPR Part 7, r 7.18, which provides:
7.18 Court may appoint and remove tutors
(1) In any proceedings in which a party is or becomes a person under legal - person_under_legal_incapacity:
(a) if the person does not have a tutor, the court may appoint a tutor, or
(b) if the person has a tutor, the court may remove the party’s tutor and appoint another tutor.
(2) In any proceedings concerning a person under legal - person_under_legal_incapacity who is not a party, the court may appoint a tutor of the person and join the person as a party to the proceedings.
(3) If the court removes a party’s tutor, it may also stay the proceedings pending the appointment of a new tutor.
(4) Subject to any order of the court, notice of any motion under this rule is to be served on the person under legal - person_under_legal_incapacity and, if it proposes removal of the person’s tutor, on the tutor.
(5) In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include:
(a) evidence that the party for whom a tutor is to be appointed is a person under legal - person_under_legal_incapacity, and
(b) evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal - person_under_legal_incapacity.
(6) An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor.
There was no objection to the technical informality of the application and the Court therefore made the order under UCPR Part 7, r 7.18(4) dispensing with the need to comply with a requirement for a motion and service on Chris and Louie.
Two other observations are necessary.
First, Mr Sirtes submitted that because Louie’s appointment was, properly understood, under the parens patriae jurisdiction relating to cases of doubt about a person’s capacity (see Bobolas v Waverley Council [2012] NSWCA 126 at [60]) and was expressed to be until further order, the Court was now in a situation equivalent to the return of an interlocutory injunction. It was submitted that the onus was on Louie to satisfy the Court that he should be appointed Chris’ tutor under r 7.18. Both those submissions are correct but make no practical difference to the way I have approached the application or to its outcome.
Second, in interpreting and exercising the power to appoint a tutor under the rules the Court must seek to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings (s 56(2), Civil Procedure Act 2005 (NSW) (“CPA”)).
Tutor - submissions
George and Maria submitted:
(1)Rule 7.18(5)(b) requires there to be evidence before the Court “that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity”.
(2)Louie’s form of consent to act as a tutor was evidence of his consent. However, it did not constitute evidence that he does not have any interest in the proceedings adverse to Chris’ interests. The solicitor’s certification to that effect on the form of consent was not evidence.
(3)A person could not be appointed as tutor who had an interest in the proceedings adverse to Chris’ interests. The principles to be applied are those set out by Ward J (as her Honour then was) in Varma v Varma [2010] NSWSC 785 at [24]-[27] (“Varma”) (a costs judgment in which her Honour expanded upon the views she had expressed in her principal reasons in Varma v Varma [2010] NSWSC 786 at [253]-[256]):
24 The fact that there was no claim made by Parveen directly against Sid in the tutor proceedings does not seem to me to address the problem that it is recognised in the cases (and this seems to be the reason for the certification) that it is not appropriate for a person to be appointed as tutor where the proposed tutor has an adverse interest to that of the person to be represented. It is clear that the existence of a conflicting interest is a basis on which a tutor may be removed (Re Birchall(1880) 16 Ch D 41http:// v Pemberton(1877) 6 Ch D 19http:// v Norwood(1885) 31 Ch D 237http:// v Registrar of Melbourne County Court [1927] VicLawRp 59http:// VLR 406http:// v Douglas [2004] NSWSC 279, at [19]-[20]). (That a tutor has an interest in the proceedings that is adverse to the defendants or other parties whom they are not representing will not make the tutor unsuitable (Douglas v Douglas.)
25 In Gouder v Gouder[2005] NSWSC 1116http:// it was considered that it would not be appropriate for the holder of a power of attorney who could exercise that power adverse to the interests of a person under a legal incapacity to be appointed as that person’s tutor (at [4]).
26 In the present case, even apart from the fact that Parveen held, as at the date of commencement of the proceedings, a power of attorney which might be exercised contrary to the wishes of Sid (and might following its revocation by Sid have sought to put that in issue in the proceedings), the scope for conflict in relation to the basis on which the shares were held would in my view have made it inappropriate for Parveen to be appointed as tutor (if a tutor were necessary due to the asserted legal incapacity of Sid).
27 There must, it seems to me, have been a clear conflict of interest in circumstances where Parveen was asserting not simply a claim on Sid’s behalf for the return of the shares but also an entitlement in her own right to those shares on his death (albeit not asserting that entitlement directly in the proceedings and not seeking any relief in relation thereto). It seems to me that this can be readily tested by posing the question as to what would have occurred, in the tutor proceedings, had Gautam and Arjun put forward a compromise proposal for resolution of those proceedings which involved the transfer back to Sid of less than the full amount of the shares which had been transferred to them. The interests of Sid and Parveen might well have diverged at that point.
(4)Louie had a conflicting interest to Chris in the proceedings by reason of any of the following:
(a)Louie was “in all probability” a beneficiary under Chris’ will and eligible to bring proceedings for provision from Chris’ estate under the Succession Act 2006 (NSW). Any compromise which involved a depletion of Chris’ assets necessarily reduced the assets that would be available to Louie as beneficiary or claimant and therefore put Louie in a position of conflict.
(b)Louie was living with Chris in the latter’s property which was the subject of the proceedings. Any settlement of the proceedings that would involve a sale or transfer of that property to Maria would put Louie into a position of conflict.
(c)To the extent that Louie’s children were also beneficiaries under Chris’ will, he had an adverse interest to that of Chris insofar as he sought to protect his childrens’ interests in Chris’ estate.
(5)Furthermore, as Louie was Chris’ attorney under the Power it was not appropriate for Louie to be appointed as Chris’ tutor: In the application of Ronald Gouder [2005] NSWSC 1116 (“Gouder”).
The submissions on behalf of Chris and Louie were:
(1)Where possible the Court prefers to appoint a parent, spouse or some near relative as tutor in preference to a stranger unless the interest of that parent, spouse or relative is adverse to that of the incapacitated person: Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200.
(2)Louie did not have any interest in the proceedings adverse to the interests of Chris. While Louie may have had an interest in the outcome of the proceedings inimical to that of George and Maria, that was not a factor which counted against Louie’s appointment as tutor.
(3)Under the Power Louie could act in his own interests in relation to limited, specified matters. These were clearly set out in the Power and did not give rise to any conflict for Louie in relation to the proceedings, in particular with the duties which Louie owed to Chris as the latter’s tutor. The fiduciary duties which Louie owed to Chris under the Power were consistent with the duties he owed as tutor.
(4)Further to the preceding sub-paragraph, the fact that Louie has limited specific powers to act in his own interests under the Power is outweighed by the Court’s obligation to exercise the power to appoint a tutor in such a way as to facilitate the just, cheap and quick resolution of the proceedings. If Louie did not continue as tutor, then the proceedings would have to be stayed while an independent tutor could be found. That would cause a delay in the proceedings and the incurring of expense in meeting the costs of an independent tutor.
Tutor – resolution: Louie should continue as tutor
For the reasons set out in paragraphs [32] to [68] below, the Court does not accept George and Maria’s submissions. Louie should continue as Chris’ tutor.
Tutor – resolution: the role of a tutor
As Hodgson J (as his Honour then was) observed in Deputy Commissioner of Taxation v P [1987] 11 NSWLR 200 at 204, appointment as a tutor “involves significant responsibilities and duties”. In his Honour’s reasons (at 203-204) he discussed the role of a tutor in a passage which I respectfully adopt:
A useful statement of principle concerning the role of a tutor is contained in the judgment of Bowen LJ in Rhodes v Swithenbank (1889) 22 QBD 577 at 579 (quoted with approval by Williams, J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 113-114):
“… The only reason that the next friend of an infant is entitled to bind the infant in matters connected with the cause is that he is the officer of the court to take all measures for the benefit of the infant in the litigation in which he appears as next friend. One of the purposes of appointing a next friend is to have a person on the record who is personally liable for costs. But that is not the only purpose for which a next friend is appointed. He is appointed principally to institute and carry on the proceedings on behalf of the infant because the law considers that an infant is incapable of asserting or protecting his rights or forming a judgment as to the necessity of applying for protection or redress to the tribunals of the country. Accordingly, where more than one person is willing to act as a next friend, the court will appoint as most suitable the father or if he is dead the widow or some near relative in preference to a stranger unless the interest of the father or other relative is adverse to that of the infant. The next friend will be removed by the court if he has an interest, or is closely connected with some person who has an interest, which is adverse to that of the infant, or if for any reason the court considers that the infant's interests will not be properly protected by him. If there be any suspicion that the proceeding is an improper one or that the next friend is unfit to have the conduct of it, an inquiry may be directed on such matters, and if it appears on inquiry, or in clear cases without inquiry, that the proceeding is not for the infant's benefit it will be stayed, or, if the circumstances warrant it, dismissed with costs to be paid by the next friend.”
This statement concerns the next friend of an infant, and the comment about the principal purpose of the appointment of a person to act on behalf of the infant in proceedings being because the law considers that an infant is incapable of asserting or protecting his rights, applies with at least equal force to the case of a guardian ad litem, that is a tutor appointed to represent an infant defendant in proceedings. Similarly, in most cases, if willing, a parent or near relative is the appropriate person to be appointed tutor.
However, it appears that in this case no such person is willing, and under the Supreme Court Rules, a person shall not be made a tutor without his consent. One reason for this rule would appear to be that a person made a tutor without his consent might not exercise the necessary diligence in seeking to uphold the interests of the infant. Even assuming that the Court has power to dispense with compliance with that particular rule, I do not think it would be proper for the Court to do so, certainly not in this case.
A tutor remains under the control of the Court. Two examples of that control are the Court’s powers to remove the tutor and appoint another (r 7.18(1)(b)) or, on the application of the tutor, to give directions with respect to the tutor’s conduct of proceedings (CPA s 80).
Tutor – resolution: a family member is the preferred tutor
Applying Hodgson J’s analysis set out in paragraph [32] above, the Court accepts Louie’s submission that the Court has a real preference for a parent, spouse or near relative to be appointed as tutor wherever possible, rather than a stranger. In the course of the application the subject of these reasons George and Maria did not propose an alternative tutor, although I was informed from the bar table that they were making inquiries of suitable senior, independent solicitors.
The Court was also informed from the bar table that as Chris’ enduring guardians and attorneys, Louie and Bill had discussions between themselves about who was prepared to take on the role of tutor and had decided that it was Louie who would apply. There was no evidence as to whether Bill would be prepared to apply to be tutor if Louie was to be removed. However, given that it was Louie whose name was put forward to be tutor, the Court infers that Bill was reluctant to take on the role and that, if Louie were to be removed as tutor, it is probable that a person from outside the family would have to be found to be tutor. It was certainly submitted for Chris that this would be the result if Louie were removed. In exercising its discretion in relation to Louie’s ongoing appointment, the Court gives weight to the preference expressed in the authorities for the appointment of a family member as a factor (but in and of itself not a decisive factor) in favour of maintaining Louie’s appointment.
Tutor – resolution: there was evidence Louie did not have an adverse interest
The Court does not accept George and Maria’s submission that, contrary to r 7.18(5)(b), there was no evidence that Louie did not have an interest in the proceedings adverse to the interests of Chris. As proof that he did not have an interest in the proceedings adverse to Chris, Louie relied on the form of consent to act as tutor that had been filed on his behalf in each of the proceedings. For the reasons which follow, he was entitled to do so.
In each of the proceedings Louie filed a “consent to act as tutor” in the form approved by the Uniform Rules Committee for use in civil proceedings in this Court. That form is in two parts. The first set out Louie’s consent, signed by him. The second part of the form of consent was:
SIGNATURE OF LEGAL REPRESENTATIVE
I certify that Louie Saravinovski does not have an interest in the proceedings adverse to the interests of Krste Saravinovski (also known as Chris Saravinovski) the Defendant in these proceedings.
That statement was signed by the solicitor on the record for Chris.
UCPR Part 7 r 7.16 provides:
7.16 Tutor to file certain documents
A tutor may not commence or carry on proceedings on behalf of a person under legal - person_under_legal_incapacity unless there have been filed:
(a) the tutor’s consent to act as tutor, and
(b) a certificate, signed by the - solicitor in the proceedings, to the effect that the tutor does not have any interest in the proceedings adverse to the interests of the person under legal - person_under_legal_incapacity.
The notes in Ritchie’s Uniform Civil Procedure NSW (Looseleaf, LexisNexis Butterworths) (“Ritchie”) to that rule direct the reader to Form 30 as the approved form.
UCPR Part 31 r 31.15 provides:
31.15 Evidence of consent to act as tutor, trustee, receiver or other office
(1) A document:
(a) purporting to contain a person’s written consent to act as tutor of a person under legal incapacity, to act as trustee, to act as receiver or to act in any other office on appointment by the court, and
(b) purporting to have been duly executed and authenticated,
is evidence of the consent.
(2) A document is duly executed and authenticated for the purposes of subrule (1):
(a) in the case of a consenting person who is a natural person, if the document is signed by the consenting person and the signature is verified by some other person, or
(b) in the case of a consenting person that is a corporation, if the seal of the corporation is affixed to the document in accordance with the law regulating the use of the seal.
Two observations follow from the terms of r 31.15.
The first is that while the rule has the effect of making a document (in this case a document in accordance with Form 30) evidence of Louie’s consent to act as tutor, it is silent on the evidentiary effect of the solicitor’s certification that Louie does not have an interest in the proceedings adverse to Chris. The rules do not expressly deal with the latter issue.
The second observation is that the note in Richie to r 31.15, rather than directing the reader to Form 30, refers in paragraph [31.15.5] to the precedents for forms of consent and verification set out in Nevill and Ashe, Equity Proceedings with Precedents (NSW) (Butterworths, 1981). In paragraph [2502] of that work the learned authors state that appointment of a tutor by the Court is made on a motion supported by evidence “the tutor is a proper person for appointment and has no adverse interest”. They direct attention to a precedent entitled a “certificate of no adverse interest” whereby the solicitor for the party and the proposed tutor certifies that the tutor has no interest in the proceedings adverse to that of the party.
It appears, at least inferentially, from the way that Nevill and Ashe (at paragraph [2502]) treat the topic of appointment of a tutor by the Court that the form of certificate was taken as evidence of the facts certified whether or not it was attached to an affidavit. Under the current rules and, having regard to Form 30, the evidentiary efficacy of the solicitor’s certificate is established by the following reasoning. The rules are to be interpreted to give effect to the overriding purpose (CPA s 56(2)). Rule 7.18(5)(b) requires there to be evidence that the proposed tutor does not have any interest in the proceedings adverse to the interests of the person under legal incapacity. The Uniform Rules Committee has prescribed Form 30 in relation to the appointment of a tutor which includes a certification by a legal representative to the effect required by r 7.18(5)(b). It follows, applying the injunction in CPA s 56(2), that the requirement for “evidence” in that rule is to be construed as being satisfied by a certificate in the terms specified in Form 30.
The Court is fortified in this approach because it is notoriously difficult to prove a negative. It is therefore consistent with the overriding purpose for there to be a mechanism whereby, in at least the first instance, that negative can be proven by provision of the certificate. However, while a certificate from a legal representative in Form 30 is, on this analysis, evidence of the fact certified, it is not conclusive or irrebutable. It is open to any party interested in the appointment of the tutor to adduce evidence or put submissions that the proposed tutor does have an interest of the prohibited kind.
That the Court has prescribed a form of certificate to be executed by the legal representative which constitutes evidence of the fact certified demonstrates the solemnity and seriousness of the legal representative’s task in giving the certificate. The consequences of the tutor’s appointment are serious for both the person under legal incapacity and the tutor. That same seriousness must inform the legal representative’s approach to giving the certificate. The certificate is not merely a pro forma bureaucratic requirement as part of some administrative process. The certificate is required to be given by a legally qualified person who is an officer of the Court. It is intended to be relied on by the Court in the absence of evidence to the contrary. It requires that officer to express a conclusion of mixed fact and law based on his or her legal expertise. To do so, the legal representative will need to have obtained full and proper instructions both about the issues in the proceedings and the circumstances of the tutor. He or she will then need to come to a bona fide opinion based on rational grounds as to whether or not the circumstances are such as to permit him or her to give the certificate.
The requirement implicit in r 7.18(5)(b) that the proposed tutor not have any interest in the proceedings adverse to the interests of the person under legal incapacity reflects longstanding principle and practice. So, for example, Daniell’s Chancery Practice, 5th Edn (Stevens & Sons, London, 1871) states (Vol 1, p 159, citations omitted):
The application must be supported by affidavits proving the mental incapacity of the defendant, the fitness of the proposed guardian, and that he has no adverse interest. A co-defendant may be appointed, if he has no adverse interest; but not the plaintiff, nor a married woman, nor a person resident out of the jurisdiction.
Although both the gendered language and the reference to a prohibition against a married woman being a tutor are no longer applicable, the fundamental concern to ensure that the proposed tutor does not have an interest in the proceedings adverse to the person under legal incapacity remains relevant today.
The approach taken by Ward J in Varma was, with respect, undoubtedly correct. As appears from paragraph [27] in her Honour’s judgment (reproduced in paragraph [29(3)] above), the proposed tutor was asserting a present claim in her own right to the shares which were sought to be recovered for the benefit of her father in the very proceedings in which she wished to be appointed her father’s tutor. Louie has no such present claim against his father’s property. Given that Chris is not dead, Louie has no claim against his estate as a beneficiary (assuming that Louie is a beneficiary under Chris’ will, which given my conclusion it is not necessary for me to make a finding about), or under the Succession Act or an interest to protect his children’s future rights under that legislation. Furthermore, if these kinds of future possible rights were a disqualification to being a tutor, then the law’s preference to appoint family members would be seriously undermined.
The same conclusion can be reached by an alternative route. Insofar as Chris’ assets are concerned and, assuming again for the sake of the argument that Louie is a beneficiary under Chris’ will, Chris’ and Louie’s interests align rather than conflict in relation to Chris’ assets. In other words, they share a common interest in ensuring that Chris’ assets are not depleted by reason of the litigation or any settlement.
Tutor – resolution: being Chris’ attorney is no bar to Louie’s appointment as tutor
George and Maria’s submission that Louie’s position as Chris’ attorney under the Power meant it was not appropriate for Louie to be appointed as Chris’ tutor was based upon the short, ex tempore judgment of Gzell J in ex parte proceedings in Gouder. In that judgment his Honour said:
1 I have before me an ex parte application to amend the name of the principal in a general power of attorney that was executed as a protected power of attorney in terms of the Conveyancing Acthttp:// s 163F(2).
2 A husband and wife, Jacques Ballardine and Simone Ballardine, executed joint wills. Powers of attorney in favour of the applicant, Ronald Gouder, had been prepared for their execution at the same time. The execution of the powers of attorney was witnessed by Alan McKimm, a solicitor, who explained to each the nature of the document to be executed. Unfortunately, Mrs Ballardine executed the document granting a power of attorney to Mr Gouder by Mr Ballardine and he executed his wife's power of attorney. Mrs Ballardine is deceased. Mr Ballardine is incommunicate as that term is defined in the Conveyancing Act s 163D and the medical evidence establishes that there is a need for Mr Gouder to act.
3 Reference has been made to various bases upon which the court might act to cure the defect in the power of attorney given by Mr Ballardine.
4 The Powers of Attorney Act in operation provisions of the Conveyancing Acthttp:// in respect of powers of attorney executed before the commencement of the former Act. That is the position in the instant circumstances. Section 163G enables the court, on application by the principal, to alter the instrument creating a power of attorney with the consent of the attorney and any other interested person if the power is a protected power of attorney given by an incommunicate principal. The principal in this case is Mr Ballardine, who is incapable of giving instructions. That is cured by s 163H that provides that where the principal is incommunicate, proceedings by the principal may be commenced and carried on as prescribed by the rules of the court. The Uniform Civil Procedure Ruleshttp:// 2005, r 7.18 enables the court to appoint a tutor. In my view, however, Mr Gouder should not be appointed tutor. A person to be appointed must establish that he or she does not have any interest in the proceedings adverse to the interests of the person under legal incapacity. Mr Gouder as the attorney could exercise power adverse to the interests of Mr Ballardine.
Gzell J ultimately solved the problem with which he was confronted by exercising the inherent jurisdiction of the Court to rectify documents. His conclusion (at [7]) was “The instrument executed by Mr Ballardine did not, by error, record his true intentions for it stated that it was made by Mrs Ballardine. I see no reason why this Court should not rectify the instrument to replace the name of Simone Ballardine with the name Jacques Ballardine”.
It is apparent from paragraph [25] of Ward J’s reasons in Varma (see paragraph [29(3)] above), that her Honour understood the effect of Gzell J’s dictum in Gouder to be that a person who held a power of attorney which permitted the exercise of the power adversely to the interests of the person under a legal incapacity should not be appointed as that person’s tutor. With the utmost respect to her Honour, it is not so clear to me that is what Gzell J was saying.
George and Maria embraced Ward J’s view of Gzell J’s dictum. On the other hand, Louie argued that there was no such general prohibition. He submitted Gzell J’s conclusion was that Mr Gouder could not be appointed as Mr Ballardine’s tutor in the rectification proceedings because he had an interest in those proceedings adverse to the interests of Mr Ballardine. This was because he (Mr Gouder) was the putative attorney under the instrument the subject of the proceedings, being an instrument which if the relief sought in the proceedings was granted would enable Mr Gouder to exercise power adverse to the interests of Mr Ballardine.
While it is by no means free from doubt, I prefer Louie’s construction of Gzell J’s dictum for the following reasons. It is not obvious why, as a matter of principle, the holder of a power of attorney which permits conduct adverse to the interest of the donor of that power necessarily has an interest “in the proceedings” adverse to the interests of the donor. As was submitted for Louie, when the attorney under such a power is appointed as his or her principal’s tutor by order of the Court, the attorney becomes subject to all of the duties which a tutor owes to the person under legal disability. To the extent of any inconsistency the Court’s order must override, at least in connection to the proceedings in which the person has been appointed tutor, the private law rights and obligations which exist between the principal and the attorney. Finally, the problem before Gzell J was of a different kind to the present case because in that case he was considering whether the putative attorney could be appointed tutor for his principal in proceedings concerning the instrument of appointment itself.
If, contrary to the view I have just expressed, Gouder stands for the proposition that an attorney who can act adversely to the interests of their principal thereby has an adverse interest to their principal which disqualifies the attorney from being appointed the principal’s tutor, then I nevertheless accept Louie’s alternative argument that the present circumstances are distinguishable from those in Gouder. My reasons for this are as follows.
It is unclear from Gzell J’s reasons in Gouder whether the power of attorney in that case entitled Mr Gouder to act adversely to Mr Ballardine’s interests generally or only in relation to specified matters. In the present case the Power was a “prescribed power of attorney” within the meaning of s 8 of the Powers of Attorney Act 2003 (NSW) (“POWA”) and was in the form prescribed by POWA Schedule 2.
Part 2 of the Power provides:
PART 2 – Additional Powers and Restrictions
5. I authorise my attorneys to give reasonable gifts as provided by section 11 (2) of the Powers of Attorney Act 2003.
6. I authorise my attorneys to confer benefits to meet the attorneys’ reasonable living and medical expenses as provided by section 12(2) of the Powers of Attorney Act 2003.
7. I authorise my attorneys to confer benefits on [blank in original] to meet their reasonable living and medical expenses as provided by section 13(2) of the Powers of Attorney Act 2003.
8. This power of attorney is subject to the following conditions and limitations – [blank in original]
Paragraphs 7 and 8 of Part 2 of the Power can be immediately ignored because they have not been completed and are therefore of no effect. To understand the effect of paragraphs 5 and 6 of Part 2 of the Power it is necessary to set out POWA ss 11 and 12:
11 Prescribed power of - prescribed_power_of_attorney does not generally confer authority to give gifts
(1) A prescribed power of - prescribed_power_of_attorney does not authorise an - attorney to give a gift of all or any - property of the - principal to any other person unless the - instrument creating the power expressly authorises the giving of the gift.
Note: This subsection restates a rule of the general law. Accordingly, whether a gift of all or any of - property of - principal is expressly authorised by a prescribed power of - prescribed_power_of_attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers - attorney.
(2) Without limiting subsection (1), a prescribed power of - prescribed_power_of_attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an - attorney to give the kinds of gifts that are specified by that Schedule for that expression.
12 Prescribed power of - prescribed_power_of_attorney does not generally confer authority to confer benefits - attorney
(1) A prescribed power of - prescribed_power_of_attorney does not authorise - attorney to execute - assurance or other document, or to do any other act, as a result of which a benefit would be conferred on - attorney unless - instrument creating the power expressly authorises the conferral of the benefit.
Note: This subsection restates a rule of the general law. Accordingly, whether the conferral of a benefit on - attorney is expressly authorised by a prescribed power of - prescribed_power_of_attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers - attorney.
(2) Without limiting subsection (1), a prescribed power of - prescribed_power_of_attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an - attorney to confer on - attorney the kinds of benefits that are specified by that Schedule for that expression.
Paragraphs 5 and 6 of Part 2 of the Power use the “prescribed expression” which requires reference to POWA Schedule 3:
1 Authority to give gifts
(1) The prescribed expression for the purposes of section 11 (2) is as follows:
I authorise - attorney to give reasonable gifts as provided by section 11 (2) of the Powers of Attorney The prescribed expression authorises - attorney to give a gift only if:
(a) the gift is:
(i) to a relative or close friend of - principal, and
(ii) of a seasonal nature or because of a special event (including, for example, a birth or marriage), or
(b) the gift is a donation of the nature that - principal made when - principal had capacity or - principal might reasonably be expected to make,
and the gift’s value is not more than what is reasonable having regard to all the circumstances and, in particular, - principal’s financial circumstances and the size of - principal’s estate.
(3) In - clause:
"close friend" of - principal means another individual who has a close personal relationship with - principal and a personal interest in - principal’s welfare.
"relative" of a - principal means:
(a) a mother, father, wife, husband, daughter, son, step-daughter, step-son, sister, brother, half-sister, half-brother or grandchild of - principal, or
(b) if the - principal is a party to a - registered relationship or interstate - registered relationship, within the meaning of the Relationships Register Act , or a domestic relationship within the meaning of the (Relationships) Act any person who is a relative, of the kind mentioned in paragraph (a), of either party to the relationship.
2 Authority to confer benefits - attorney
(1) The prescribed expression for the purposes of section 12 (2) is as follows:
I authorise my - attorney to confer benefits on the - attorney to meet - attorney’s reasonable living and medical expenses as provided by section 12 (2) of the Powers of Attorney The prescribed expression authorises - attorney to confer a benefit on the - attorney only if:
(a) the benefit meets (whether in whole or in part) any expenses incurred (or to be incurred) by - attorney in respect of any of the following:
(i) housing,
(ii) food,
(iii) education,
(iv) transportation,
(v) medical care and medication, and
(b) the benefit is not more than what is reasonable having regard to all the circumstances and, in particular, - principal’s financial circumstances and the size of - principal’s estate.
Ms Cheeseman SC for Louie properly accepted that to the extent and in accordance with the terms of the authority to give gifts and the authority to confer benefits upon attorneys, Louie could act under the Power adversely to Chris’ interests. However, I accept the submission that these limited powers to act adversely to Chris’ interests do not amount to Louie having “any interest in the proceedings adverse to the interests of” Chris.
Insofar as Louie, as Chris’ son, can give gifts from his father’s assets it is confined to a special event such as a birthday. As such, it is de minimis and does not constitute an “interest in the proceedings”. Nor does Louie’s capacity to confer a benefit on himself in relation to meeting his reasonable medical, housing or other specified needs constitute an “interest in the proceedings”. If those conclusions are wrong, then to the extent they do constitute an interest in the proceedings they are not adverse to Chris’ interests. Chris has made it clear in the Power that he wishes Louie to be able to make gifts and confer benefits of the kind specified. So understood, Chris’ and Louie’s interests in the assets of the estate are identical. Both of them have an interest in preserving the assets of the estate to be available for a gift or to confer a benefit of the specified kind which Louie might wish to confer and which Chris, by the Power, has made clear he wishes Louie to be able to do if Louie so desires.
Finally, even if the limited powers to benefit himself and to make gifts might strictly be seen as giving rise to an “interest in the proceedings adverse to the interests of Chris” or a conflict of interest to the extent of that power, the Court’s obligations to exercise the power to remove and appoint a tutor and to construe 7.18(5)(b) with a view to furthering the overriding purpose support the continuation of Louie’s appointment. My reasons for this conclusion are as follows.
On the one hand, by appointing Louie as one of his attorneys and enduring guardians, Chris has demonstrated that he has trust and confidence in Louie. Louie’s powers in relation to giving gifts and benefits is extremely limited. There are also additional checks and balances for Louie’s conduct. Unless the Court otherwise orders, a tutor must carry on proceedings by a solicitor (r 7.14(2)). Any settlement of these proceedings will require the approval of the Court (CPA s 76). On the other hand, if Louie is removed as tutor the proceedings will be stayed at a very late stage (see paragraph [98] below) of what has become an extremely protracted piece of litigation. Delay and expense will be incurred in identifying and retaining an independent tutor. Weighing those considerations against each other the obligation to apply the rules and conduct the proceedings in a way that facilitates just, quick and cheap resolution strongly points to the desirability of maintaining Louie as tutor. That consideration also informs the Court’s decision to do so.
Tutor – resolution: no other reason why Louie should not be Chris’ tutor
In an extract from the judgment of Bowen LJ approved by Hodgson J in Deputy Commissioner of Taxation v P (see paragraph [32] above), there is a reference to removal of the next friend “if for any reason the Court considers that the infant’s interests will not be properly protected …”. The discretionary and protective nature of the Court’s jurisdiction to appoint or remove a tutor readily explains why the Court should be able to decline to appoint or to decide to remove a tutor for a fundamental reason other than a traditional objection, such as the tutor having an adverse interest in the proceedings.
It was submitted with understandable force on behalf of George and Maria that the deep antipathy between the parties in this case, including Louie against George and Maria (evidenced by the evidence Louie had sworn in the proceedings), constituted such a reason why Louie should not be permitted to continue as Chris’ tutor. So deep, it was said, was the antipathy between the parties that the Court should infer that Louie would not be able to set aside what were alleged to be his deep feelings against George and Maria so as to be able to make calm and rational decisions in Chris’ interests.
The fact that Louie may have an interest in the proceedings inimical to George and Maria (but not Chris) is not a factor relevant to Louie’s appointment as Chris’ tutor: Douglas v Douglas [2004] NSWSC 279. The Court accepts that there will be cases where the proposed tutor’s enmity to the opposing party is so deep that he or she should not be appointed tutor. On the evidence as it currently stands, this is not such a case. True it is that Louie has sworn affidavits in Chris’ interests which take direct issue with most of the matters alleged by George and Maria. However, that does not justify a conclusion of implacable or irrational opposition to George and Maria so as to render Louie unfit to be Chris’ tutor.
In reaching this conclusion I have also relied on Louie’s viva voce evidence on the application. I am satisfied on the basis of his evidence that he understands the seriousness of his role as tutor and the need for him to act rationally in the best interests of Chris. Furthermore, while he was briefly cross-examined by Mr Sirtes SC on behalf of George and Maria, it was not suggested to Louie in cross-examination that he was so set against George and Maria in these proceedings that he could not properly perform the function of tutor.
Tutor – resolution: a final observation
It is appropriate that I conclude this part of my reasons by recording a more developed version of an observation I made at the end of the argument.
The Court is satisfied that, as matters currently stand, Louie has no adverse interest in the proceedings or other conflict which would prevent him being Chris’ tutor. Louie and his advisers should nevertheless remain astute to the possibility that situation could change.
Such a change might occur, for example, depending upon the scope of any settlement offer put by George and Maria. A conflict of interest could arise between Louie and Chris or in Chris’ lawyers depending on the circumstances and whether the lawyers are called upon to advise Louie in his personal capacity as opposed to in his role as tutor.
I have no view as to whether or not any conflict of the kind to which I have referred will arise. The Court has every confidence in the competence and integrity of both parties’ lawyers. Nevertheless, given that extensive argument was devoted to the topic of adverse interests and conflict, the parties should not assume the status quo will continue if there is a significant change in the litigious landscape howsoever caused.
Chris’ affidavits - submissions
George and Maria submitted:
(1)The question is governed UCPR Pt 35 r 35.2:
35.2 Cross-examination of deponent
(1) A party may, by written notice served on the party serving or proposing to use an affidavit, require the attendance for cross-examination of the person by whom the affidavit has been made.
(2) Such notice is to be given a reasonable time before the time at which the person is required to attend for cross-examination.
(3) If reasonable notice of such a requirement has been given in respect of an affidavit, and the deponent does not attend for examination, the affidavit may not be used unless the deponent is dead or unless the court orders otherwise.
(4) If a person making an affidavit is cross-examined, the party using the affidavit may re-examine the person.
(2)Sub-rules 35.2(1) and (2) were satisfied.
(3)Chris’ affidavits had been read on the assumption that he would be available to be cross-examined. Once that assumption had been shown to be incorrect, it was appropriate to review the correctness of having permitted the affidavits to be read: Russell Caldar v Public Trustee of New South Wales (27 October 2004, unreported) cited in Cairns v Cairns (2006) NSWSC 364 (“Cairns”).
(4)Rule 35.2(3) was to the effect that where a witness who has sworn an affidavit is required for cross-examination but “does not attend for examination”, then the affidavit “may not be used” unless the deponent is “dead”. The word “dead” is not defined in the rules and should be given its plain English meaning of deceased. It should not be construed as equivalent to “unavailable” within the meaning of the Evidence Act 1995 (NSW) (“EA”).
(5)Where the deponent is not able to attend for cross-examination for a reason other than death, the Court may allow some parts of affidavits to be read while not permitting other parts to be relied upon where the absence of cross-examination would prejudice the opposite party: Vella v Wah Lai Investments (Australia) Pty Limited [2004] NSWSC 583. However, where affidavit evidence is used with leave without cross-examination, it will always be discounted depending upon various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case: Fulton v Fulton [2014] NSWSC 619 at [111].
(6)In the present case, leave should be refused for these reasons. Chris’ evidence was absolutely central to the case. Dr Rosenfeld’s evidence that Chris’ deterioration had been progressing over three to four years cast serious doubt on the reliability of all of Chris’ affidavits. Furthermore, it would be extraordinarily unfair if, while George and Maria had been subjected to intense cross-examination over a number of days, Chris’ affidavits could be read when he was not in turn able to be cross-examined. The prejudice to George and Maria in those circumstances could not be overcome by any discounting exercise. Alternatively, if the approach were to be adopted of granting leave but then discounting Chris’ evidence, then the reasons just given justified Chris’ affidavits being discounted completely.
(7)A just outcome was for Chris’ evidence not to be received by way of granting leave for his affidavits to be used, but rather for his evidence to pass through what was described as the “gateway” of EA s 63 which provides:
63 Exception: civil proceedings if maker not available
(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to:
(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
(8)This would require an application for Chris’ affidavits to be relied upon as documents for the purposes of s 63(2)(b) (to the extent that Chris was competent at the time he made the affidavits and insofar as objections under EA s 135 to the tender were not upheld) or by obtaining evidence from third parties of the kind referred to in s 63(2)(a).
The submissions on behalf of Chris were:
(1)Chris had physically attended at the Court for cross-examination and, as such, r 35.2(3) had no work to do.
(2)While Chris may have been found to be under a legal incapacity, that was not the same thing as a finding that he was incompetent to give evidence within the meaning of EA s 13(1) which provides:
(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability):
(a) the person does not have the capacity to understand a question about the fact, or
(b) the person does not have the capacity to give an answer that can be understood to a question about the fact,
and that incapacity cannot be overcome.
(3)Even if a person had to be competent to “attend for examination”, in the absence of a finding of incompetence the rule was not engaged.
(4)If, contrary to the foregoing, r 35.2 was engaged, this was a case where the Court should order otherwise to enable the use of Chris’ affidavits. No criticism could be made of Chris as to the reasons why he was now unable to be cross-examined. The case was being heard in the absence of a jury and George and Maria’s concerns about procedural fairness and the reliability of Chris’ evidence were all matters which the Court is well equipped to deal with by discounting the weight to be attached to the evidence.
(5)The procedural unfairness to Chris if his affidavit evidence were excluded was completely disproportionate to the unfairness, such as it was, that would be suffered by George and Maria due to their inability to cross-examine Chris. That unfairness was not one-sided. Chris was also deprived of the opportunity of demonstrating to the Court by being tested in cross-examination that he was a witness whose evidence should be accepted.
(6)If the “gateway” of the EA had to be used, it would be necessary to consider whether an application would be brought by Chris through his tutor in reliance on EA ss 63 and 67. Considerable time would be required to enable a review of all of Chris’ affidavits to ascertain what evidence could otherwise be led as an alternative means of proving the facts deposed to by Chris. The time and cost of this substantial exercise was a powerful discretionary factor (particularly having regard to CPA s 56) as to why leave should be granted to rely on Chris’ affidavits rather than forcing Chris through the “gateway” of the EA at this very late stage of the proceedings (see paragraph [98] below).
Chris’ affidavits – resolution: r 35.2(3) applies
The Court has wide powers in its inherent jurisdiction, under the rules and the EA to control the conduct of proceedings, including how evidence is to be given.
For present purposes it is sufficient to begin with a broad historical generalisation about the conduct of proceedings in this Court. Proceedings in Common Law were commenced by statement of claim and the evidence was heard orally before the Court. Proceedings in Equity were commenced by summons and evidence was given by affidavit. That historical position underlies the civil procedure reforms which have their current manifestation in UCPR Part 31, which includes:
31.1 Manner of giving evidence at trial
(1) This rule applies to a trial of proceedings commenced by statement of claim, or in which a statement of claim has been filed.
(2) Subject to subrules (3), (4) and (5) and to the provisions of the Evidence Act 1995, a witness’s evidence at a trial must be given orally before the court.
(3) The court may order that all or any of a witness’s evidence at a trial must be given by affidavit or, subject to rule 31.4, by witness statement.
…
31.2 Evidence of witnesses at other hearings
Subject to rule 31.1, evidence in chief of any witness at any hearing must be given by affidavit unless the court orders otherwise.
In proceedings in the General List of the Equity Division the usual practice is for the Court to order under r 31.1(3) that in proceedings in which a statement of claim has been filed the evidence is to be given by affidavit. That practice is reflected in, for example, Practice Note SC Eq 1 Supreme Court Equity Division – Case Management, which includes:
Affidavits
7. Affidavits in the main case are not filed with the Court until final hearing. Provision should be made in the timetables for service (not filing) of those affidavits …
Statements of claim have been filed in both sets of proceedings currently before the Court. Orders were made for the filing of affidavits. The parties agree that reasonable notice was given in writing for Chris to attend for cross-examination.
Like any other statute or regulation, the Court’s rules are to be interpreted by reference to their plain English meaning in the context in which they appear. However, in addition to that statement of general principle, I have already noted that there is a specific statutory command for the rules to be interpreted in a way which gives effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings (CPA s 56(2)). To this I would add my own observation that the rules are to be interpreted with an eye to their substance rather than mere formal compliance.
Applying the approach set out in the preceding paragraph, the Court does not accept the submission put on behalf of Chris that the physical attendance of a witness at Court is sufficient to satisfy the requirement to “attend for examination” in r 35.2(3). To give an extreme example, to wheel a living but comatose witness into the Court would comply with neither the letter nor the spirit of the rule. Having regard to CPA s 56, a construction that permitted such a course could hardly be said to facilitate a just outcome. It would also be a triumph of form over substance that would bring the Court’s procedures into disrepute.
In a sense, to allow evidence to be given by affidavit represents a concession or departure from the norm (in the case of proceedings where a statement of claim has been filed) or at least a measure of efficiency in relation to proceedings howsoever commenced. Rule 35.2 sets out the price or consequence for allowing that to be done, namely that a deponent must “attend for examination”.
There might be some force in Chris’ submission if the rule said no more than “and the deponent does not attend”. However, it is engaged if the “deponent does not attend for examination” (emphasis added).
“Attend” means “to be present at”. That “attend” means attendance in person is put beyond doubt by the fact that the rules require an order to be sought for evidence to be given by phone or video (UCPR Pt 31 r 31.3). “For” means “with the object or purpose of”. This involves both capacity and intention. “Examination” means “the act or process of testing pupils, candidates etc as by questions”. (These definitions are all taken from The Macquarie Dictionary, 3rd Edn.) In the context of the rules a more precise definition of “examination” in my view is “the act of being asked and answering questions under oath or affirmation”. Although sub-rules 35.2(1) and (2) refer to “cross-examination”, r 35.2(3) advisedly speaks of “examination” which must include, but is not limited to, cross-examination.
Taking into account the definitions just referred to, the Court concludes that on its proper construction the phrase “attend for examination” means to be present in person at court ready, willing and able to answer questions on oath or affirmation. Furthermore, it connotes a subsisting state of affairs.
The analysis in the preceding two paragraphs conforms with and endeavours to give a principled expression to what occurred in the authorities to which the Court’s attention has been drawn. In Russell Caldar v Public Trustee of New South Wales as referred to in Cairns at [15], Mr Caldar was both present and able to answer questions. However, he refused to permit himself to be cross-examined for his own peculiar reasons. Master McLaughlin, as he then was, decided that Mr Caldar’s affidavits had been read on the assumption that he would be available to be cross-examined. Given that assumption was no longer correct, the learned Master held that the affidavits should be treated as not having been read. Similarly in Cairns itself, the witness appeared on one day of the hearing but was unco-operative and unresponsive. Her cross-examination was adjourned until the following day. The next day it became apparent that she would not attend. Campbell J proceeded on the basis that those circumstances enlivened r 35.2(3), but for discretionary reasons gave leave for her affidavits to be relied upon notwithstanding that the witness would not attend for examination.
It follows that r 35.2(3) applies in a number of situations and does not operate on a “once and for all basis” even if there is initial compliance by a witness. It will apply if the witness does not physically come to court. It will also apply if a witness physically attends but is physically or mentally unable to answer questions or, having initially been able to do so, subsequently loses that ability. The same applies if a witness physically attends and is able to answer questions but either from the outset or during the course of their examination refuses to do so.
Applying these observations, did Chris “attend for examination” on 31 October 2014 or 11 February 2015? On the basis of my own observations and Dr Rosenfeld’s evidence the Court concludes that he did not, because for whatever reason (intransigence or mental infirmity or both) he was unable or unwilling to answer sensibly most of the questions put to him. Insofar as he could answer very simple questions, I regard that as de minimis.
Even if the conclusion I have just expressed is wrong, I am satisfied on the basis of my own observations and Dr Rosenfeld’s evidence that Chris is now incompetent within the meaning of EA s 13(1). While the Court accepts that he may still be able to give answers to simple questions or after much effort and delay more complex questions provided they are asked in the right circumstances, those matters are for the purposes of these proceedings de minimis and do not detract from the overall finding that he is incompetent. Looking at matters prospectively, Chris will not be able to “attend for examination” in the requisite sense.
The Court therefore concludes that r 35.2(3) does apply to Chris’ affidavits because he has either never attended for examination or did so but is not able to continue to do so because he is no longer competent.
Chris’ affidavits – resolution: the Court should order otherwise in part
The next question is whether the Court should order otherwise under r 35.2(3) to allow Chris’ affidavits to be used.
The Court will not grant leave for Chris’ Recent Affidavits to be used. This is because they were sworn so close in time to Dr Rosenfeld’s diagnosis which has led to the conclusion that Chris is now a person under legal incapacity that the Court cannot be satisfied that those affidavits are unaffected by Chris’ illness. This includes an inability to be satisfied that he properly understood what was being asked of him, that his answers were reliable or that they were unaffected by suggestion.
Two matters arise from the decision in the preceding paragraph.
First, in coming to this view the Court makes no criticism of those who took instructions from Chris or propounded his Recent Affidavits. The Court has no basis to conclude those persons were not acting in good faith in accordance with their professional responsibilities. The Court is mindful of Dr Rosenfeld’s evidence that it can be very difficult, especially for people who have come to know the relevant person well, to appreciate when eccentricities and difficulties associated with old age have become manifestations of an actual illness.
Second, in declining to grant leave for the Recent Affidavits to be used, the Court is not foreclosing Chris’ opportunity to avail himself of the “gateway” of the EA to the extent his tutor and legal advisers wish to do so. It is a matter for a future application.
In contrast to his Recent Affidavits, the Court will grant leave for Chris’ Earlier Affidavits to be used. There are three reasons for this.
First, while acknowledging Dr Rosenfeld’s evidence that Chris’ condition has been present and deteriorating for some three to four years, those affidavits were sworn sufficiently early in the time and course of Chris’ illness that the Court does not have the same degree of satisfaction as it does with his Recent Affidavits that the Earlier Affidavits are likely to be affected by Chris’ illness.
Second, the prejudice to Chris of completely excluding all of his affidavit evidence would be disproportionate to the disadvantage suffered by George and Maria from being unable to test Chris’ evidence in cross-examination. The disadvantage to them in that regard will be adequately cured by a discount in the weight to be given by the Court to Chris’ evidence. While there will undoubtedly be some discount, the determination of the extent of that discount must abide the consideration of the totality of the evidence and the parties’ submissions at the end of the hearing.
Third, the Earlier Affidavits constitute much of Chris’ evidence. The proceedings are now at a late stage with, it is hoped, only three or four more days of evidence to be taken. The parties will then prepare comprehensive written submissions and a day will be set aside for oral argument. At this late stage, having particular regard to the need to facilitate the just, quick and cheap resolution of the real issues in these proceedings, the expense to Chris and the delay to the proceedings which would be occasioned by excluding all of Chris’ evidence and requiring him to seek to use the “gateway” of the EA would again be disproportionate to the prejudice suffered by George and Maria from being unable to cross-examine Chris. Again, any such prejudice will be sufficiently ameliorated by the Court discounting Chris’ evidence.
Costs - submissions
Ms Cheeseman SC submitted that her clients should have their costs of the application to remove Louie because costs should follow the event. She did not seek any order as to the costs of the application relating to Chris’ affidavits because each party had enjoyed a measure of success.
Mr Sirtes SC submitted that the costs of the two applications should be the parties’ costs in the proceedings. He advanced three reasons:
(1)The two applications were heard together and should be viewed together because they were both caused by an event outside the parties’ control, i.e. Chris becoming a person under legal incapacity during the proceedings.
(2)Looking at the two applications together, each party had enjoyed a measure of success.
(3)In relation to the tutor application, given the circumstances in which Louie had been appointed as tutor, Louie had to make an application confirming his appointment in any event (see paragraph [37] above). It was appropriate for George and Maria to have raised the matters that they did because this was not a case where the Court could or should just “rubber stamp” the tutor proposed by Chris’ side of the record.
Costs - resolution
The Court accepts Mr Sirtes SC’s submissions both as to what should occur and for the reasons he advanced.
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Amendments
09 March 2015 - Solicitors for defendant in 2011/361081 changed, Solicitors for Plaintiff/Cross-Defendant in 2012/39748 changed, minor amendments to paragraphs 67 and 90.
- AGLC
- Saravinovska v Saravinovski (No 5) [2015] NSWSC 128
- Case
- [2015] NSWSC 128
- Decision Date
CaseChat Overview and Summary
The court determined that a holder of power of attorney could indeed be appointed as a tutor, provided they had no adverse interest in the litigation. The court emphasized the importance of ensuring that the tutor was acting in the best interests of the incompetent party. Regarding the use of affidavits sworn by an incompetent party who could not be cross-examined, the court held that such evidence could be used in limited circumstances, particularly when the party was unable to attend for examination. The court interpreted the phrase "attend for examination" under UCPR Pt 35, r 35.2(3) to mean that the party must be available to be cross-examined. The court concluded that where the party was genuinely unable to attend for examination due to incapacity, their affidavit evidence could be considered, subject to the court's discretion.
The court's reasoning underscored the need for careful consideration of the interests of incompetent parties and the procedural safeguards required to protect those interests. The court ordered that a tutor be appointed for the incompetent party and allowed the use of the affidavit evidence in light of the party's incapacity. The final orders included the appointment of a tutor for the incompetent party and the admission of certain affidavit evidence, while ensuring that the interests of the incapacitated party were fully protected throughout the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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