SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
WASHINGTON v WASHINGTON & ORS
[2018] SASC 102
Judgment of The Honourable Justice Parker
17 July 2018
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PARTIES - OTHER MATTERS
MENTAL HEALTH - LEGAL PROCEEDINGS BY AND AGAINST MENTALLY ILL AND OTHER PROTECTED PERSONS
A Master ordered an inquiry as to whether the appellant is a person under a disability such that a litigation guardian should be appointed under r 78 of the Supreme Court Civil Rules 2006 (SA) (‘Rules’).
As part of that inquiry, the Master ordered that the appellant submit to examination by a psychologist for the purposes of providing a report to the Court and the other parties.
The appellant appeals against those orders. She contends that the Court has no power under the Rules or any inherent powers to compel a person to attend for medical examination.
The first and second respondents have challenged the competency of the appeal.
Held:
1. The orders by the Master constituted a “judgment” within the meaning of the Supreme Court Act 1935 (SA). The appeal is competent (at [38]).
2. The information before the Master provided a sufficient basis for him to hold a real apprehension that the appellant is a person under a disability, such that an inquiry should be conducted (at [126]).
3. When properly considered, neither rr 78 or 153 of the Rules supported an order compelling the appellant to attend for medical examination. However, the order made was authorised by the parens patriae jurisdiction and the inherent jurisdiction of the Court and was within the bounds of the Master’s discretion, (at [204]).
Appeal dismissed.
Supreme Court Civil Rules 2006 (SA) rr 78, 153 and 154; Supreme Court Act 1935 (SA) s 50, referred to.
Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; Manning v Russell (2015) 123 SASR 135; M v L [2017] SASC 39; Kurnell Passenger and Transport Service Pty Ltd v Randwick City Council (2009) 230 FLR 336; Goddard-Elliott v Fritsch [2012] VSC 87; In re WM (1903) 3 SR (1903) 3 SR (NSW) 552; Re Magavalis [1983] [1983] 1 Qd R 59; Western v Male (2010) 107 SASR 285; Dalle-Molle v Manos (2004) 88 SASR 193; Edmeades v Thames Board Mills Ltd [1969] 2 All ER 127; Lane v Willis [1972] 1 All ER 430; Berne v Waugh [1915] VLR 21; Furesh v Schor (2013) 45 WAR 546; Morrison v Hanby Pty Ltd [2000] SASC 135; L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; Children, Youth & Women’s Health Services Inc v YJL (2010) 107 SASR 343; Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; Re Eve [1986] 2 RCS 388; Wellesley v Wellesley (1828) 2 Bli NS 124 at 131, considered.
WASHINGTON v WASHINGTON & ORS
[2018] SASC 102Civil
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- Washington v Washington [2018] SASC 102
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- [2018] SASC 102
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CaseChat Overview and Summary
The legal issues in this case centred on the competency of the appeal against the Master's orders and whether those orders were appealable. Specifically, the court had to determine whether the Master's orders constituted a "judgment" within the meaning of the Supreme Court Act, and thus were appealable as of right. The court also had to consider whether the Master had jurisdiction to order the psychological examination and whether the order was an abuse of process.
The court found that the Master's orders were appealable as they constituted a "judgment" under the Supreme Court Act. The court held that the Master's orders were of a different character to incidental rulings and imposed a binding legal obligation on Eunice to attend for an examination. The court further held that the Master had jurisdiction to order the psychological examination under the parens patriae jurisdiction and the inherent jurisdiction of the court. The court rejected the argument that the order was an abuse of process, finding that the Master was weighing up the competing considerations in making the order.
In conclusion, the court dismissed the appeal and held that the order made by the Master was supported by the parens patriae jurisdiction and the inherent jurisdiction of the court. The court found that the Master's orders were appealable as they constituted a "judgment" within the meaning of the Supreme Court Act.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Lastly, Eunice notes that the Master’s orders are unprecedented. Accordingly, little can be drawn from the absence of any other appellate judgment against an order by a Master for an inquiry into the capacity of a litigant who is represented. They submit that the closest decision is that of the Full Federal Court in L v Human Rights and Equal Opportunity Commission.[9] In that case, a Magistrate made an order staying the proceedings until the Court received psychiatric evidence confirming the unrepresented litigant, Ms L, did not require a litigation guardian. The Full Court allowed the appeal on the basis that Ms L was denied procedural fairness. [9] (2006) 233 ALR 432.Consideration as to the competency of the appeal In order to characterise properly the Master’s orders it is necessary to identify the question considered by his Honour and the effect of his orders. The Master heard an interlocutory application which sought orders for the appointment of a litigation guardian for Eunice. During the course of hearing the application, Julie moved the Master to order that there be an inquiry as to Eunice’s capacity to conduct these proceedings. After hearing the parties on that question, the Master determined there was to be an inquiry, directed that Eunice must attend for a psychological examination for the purposes of that inquiry and also directed that until the inquiry was completed, no party was to take further steps in the proceedings. I am not persuaded that the Master’s action was merely an “incidental ruling” to obtain evidence rather than a “judgment” within the meaning of the Supreme Court Act. The relevant orders are of a different character to the examples referred to by King CJ in the Legal Practitioners Case being “adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact, law or procedure made during the course of a hearing”. Whilst the Master did not finally decide whether a litigation guardian should be appointed, his Honour nevertheless finally determined the question of whether an inquiry should be conducted. Furthermore, the Master specifically ordered that Eunice must attend for an examination for the purposes of that inquiry. That order was not merely an invitation or suggestion directed to Eunice, nor was it a mere grant of an adjournment pending her decision as to whether she would attend the examination. The order imposed a binding legal obligation upon her to attend and submit to examination. Thus, the Master made “an order or direction” in terms of the definition of a “judgment” in s 50(6) of the Supreme Court Act. The mere fact that his Honour’s orders were interlocutory in that they did not finally determine the wider question posed by the application does not indicate that they were merely an “incidental ruling”. Interlocutory decisions made by Masters of this Court are subject to appeal to a single Judge as of right.[10] [10] Supreme Court Act 1935 (SA), s 50(2).