Thomas v Blue Mountains City Council
[2003] NSWLEC 110
•11/04/2002
>
Land and Environment Court
of New South Wales
CITATION: Thomas v Blue Mountains City Council [2003] NSWLEC 110 PARTIES: APPLICANT:
RESPONDENT:
David Gordon Thomas
Blue Mountains City CouncilFILE NUMBER(S): 40086 of 2001 CORAM: Lloyd J KEY ISSUES: Practice and Procedure :- application for vacation of hearing dates - applicant suffering from dementia - incompetence - interim order that applicant's son appointed financial manager of estate - pending proceedings determinative
LEGISLATION CITED: Protected Estates Act 1983 CASES CITED: DATES OF HEARING: 04/11/2002 EX TEMPORE
JUDGMENT DATE :
11/04/2002LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
In person
SOLICITORS:
N/A
Mr J E Robson (barrister)
SOLICITORS:
McPhee Kelshaw
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
40086 of 2001
4 November 2002Lloyd J
- Applicant
- Respondent
HIS HONOUR:
1 In these proceedings the applicant, Mr David Gordon Thomas, seeks a declaration that the respondent, Blue Mountains City Council (“the council”), granted subdivision approval on 23 August 1967 in respect of certain land in Wilson Way, Blaxland and a further declaration that such subdivision approval is subsisting and has not lapsed.
2 At the commencement of the hearing the respondent sought by notice of motion that the hearing dates be vacated. The basis of the application may be briefly described.
3 There has been some litigation involving the same land in the Supreme Court of New South Wales. In proceedings heard by Windeyer J on 10 December 2001, 11 December 2001 and 12 December 2001, Woodvale Park Pty Ltd, as plaintiff, sought relief against Mr D G Thomas, namely, a claim that Woodvale Park Pty Ltd was the assignee from the second defendant, Regency Financial Services (NSW) Pty Ltd, of an option given by the first defendant, Mr D G Thomas, to Regency Financial Services (NSW) Pty Ltd to purchase a property at Blaxland; and that it was an assignee from Regency Financial Services (NSW) Pty Limited of another option given by Mr D G Thomas to Regency Financial Services (NSW) Pty Ltd, to purchase a property at Emu Plains.
4 In an extempore judgment delivered on 12 December 2001, Windeyer J granted the relief that was sought. A notice of appeal has been filed in the Court of Appeal against Windeyer J’s decision. That appeal has been set down for hearing on 28, 29 and 30 April 2003.
5 The position is that if Windeyer J’s decision is allowed to stand then Mr D G Thomas no longer has an interest in the land at Blaxland and, presumably, the relief sought in these proceedings would then serve no utility. This is one ground which is available to the council for seeking the adjournment; that is, that these proceedings should await the outcome of the appeal in the Court of Appeal.
6 There is, however, another and more substantial basis for the application for the adjournment. It is this. On 28 August 2002 the Guardianship Tribunal made an interim order under the Protected Estates Act 1983 appointing the applicant’s son, Mr Michael David Thomas, as financial manager of his father’s estate subject to the supervision of the Protective Commissioner of New South Wales. As I have said, that was an interim decision. A final hearing has been set down before the Guardianship Tribunal on 15 November 2002.
7 On 30 August 2002 the Supreme Court in its Protective Jurisdiction gave a direction and authority to the manager, Mr M D Thomas, to arrange for legal representation on behalf of Mr D G Thomas in the Court of Appeal proceedings. The notice of appeal in those proceedings was then amended by the inclusion of additional grounds of appeal including a ground that the appellant, Mr D G Thomas, was legally unrepresented in the proceedings before Windeyer J and had purported to conduct his own trial when he was suffering from a cognitive impairment which rendered him incapable of conducting legal proceedings.
8 The reasons of the Guardianship Tribunal for making the interim financial management order are in evidence. Those reasons show that the tribunal had before it a report of 21 August 2002 from a consultant psychogeriatrician, Dr Mark David Wallace. The report of Dr M D Wallace indicated that he conducted certain tests of cognitive functioning which showed a mild to moderate degree of impairment consistent with a dementia of probable Alzheimers type. Dr Wallace expressed the view that this condition is likely to have been slowly evolving over approximately five years and that it partially impairs Mr David Gordon Thomas’ competency. In particular, Dr M D Wallace expressed the view that the level of cognitive functioning shown on the testing “would account for the poor performance seen in Court previously” and renders Mr Thomas “vulnerable to being duped or manipulated”. Dr M D Wallace recommended that Mr Thomas should always have legal representation or a power of attorney present in any matter of significance and that in relation to the current Court proceedings, that is, the Court of Appeal proceedings, “he should at no time be enabled to represent himself”.
9 I have been furnished with some more recent assessments of the applicant. Firstly, an assessment by Mr Mark W Blows, clinical psychologist, and secondly, a supplementary report of Dr M D Wallace dated 3 October 2002.
10 The assessment of Mr M W Blows is dated 18 September 2002. He states in his covering letter of 24 September 2002 that the average 76 year old man, and the applicant is 76, could not manage litigation. In Mr D G Thomas’ case his deterioration is in excess of the mild and gradual deterioration that accompanies the greying years and is far beyond that of the average of a 76 year old person. In his assessemnt, Mr M W Blows says that throughout his testing of Mr D G Thomas there were many indications of dementia and Mr D G Thomas would not, in his opinion, be capable of managing legal matters. Mr M W Blows says that his testing of Mr D G Thomas shows very clear signs of dementia. Mr M W Blows also states:
- It is also very clear that Mr Thomas would not be able to conduct legal proceedings at any level of complexity. This would, I suggest, apply to contracts and to court proceedings. He could not, in my opinion, maintain cognisance of the relevant facts and principles. Logical direction of argument would be beyond him.
11 The updated report of Dr M D Wallace contains the observation that individuals with Mr D G Thomas’ type of personality functioning tend to overvalue their abilities.
12 I must say for my own part that the observation of Mr M W Blows, that logical direction of argument would appear to be beyond Mr D G Thomas is confirmed. On the application for the adjournment before me Mr D G Thomas insisted on raising irrelevant matters and appeared to be unable to concentrate on the issue with which the Court was concerned.
13 It is clear to me that if the case proceeds today, then there may well be, if the decision is adverse to Mr D G Thomas, an appeal to the Court of Appeal raising the same grounds that are relied upon in the proceedings between Mr D G Thomas and Woodvale Park Pty Limited; that is that Mr D G Thomas was legally unrepresented and had purported to conduct the trial when suffering from a cognitive impairment rendering him incapable of conducting legal proceedings.
14 Under these circumstances, it is appropriate that the Court should await the outcome of the final hearing of the Guardianship Tribunal on 15 November 2002 otherwise the whole of the present case that has been set down for hearing may well prove futile.
15 It follows that the application for the adjournment should be granted. The matter is stood over before the Registrar for directions on Friday, 6 December 2002.
AssociateI hereby certify that the preceding 15 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd
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