Washington v Washington - [2018] SASC 102

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 102
Civil

PARKER J: This is an appeal against orders made by a Master. The first order under appeal is that there be 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’). The second order requires the appellant to submit to examination by a psychologist, who will then provide a report to the Court and the solicitors for each party. The third order stays the proceedings until the inquiry is completed. Further orders deal with costs. The first and second respondents contend that the appeal is not competent.
For the reasons that follow, I find that the appeal is competent but dismiss the appeal.
I have used the terms “lunatic” and “idiot” many times in this judgment. While those terms have long fallen out of general use and are now regarded as derogatory and offensive, their use is unavoidable when discussing judgments of courts delivered in the nineteenth and early twentieth centuries when those terms carried a particular legal meaning.
Background
Each of the parties to the proceedings is a family member. Eunice Washington is the first plaintiff and is aged 85 years. Eunice is married to Lincoln Washington. Lincoln is the second defendant and is aged 86 years. Eunice and Lincoln have two adult children – Gary Washington and Julie Washington. Gary is the second plaintiff and Julie is the first defendant in these proceedings. For the purposes of this appeal, Eunice is the appellant, Julie is the first respondent, Lincoln is the second respondent and Gary is the third respondent.[1]
[1] The appellant’s son, Gary supports his mother’s applications and has been joined to the proceedings as the second plaintiff. Gary does not take a position with respect to the appeal. He is represented by the same solicitors as the appellant.
To assist the reader, because the parties each have the same family name, I will refer to the parties by their first names. In doing so, I do not intend any disrespect.
The proceedings began in August 2017 when Eunice sought an ex parte injunction against Julie restraining her from, inter alia, contacting Eunice and Lincoln and using or taking any action in relation to any power of attorney, power of guardianship or other instrument held by her in relation to the financial and personal affairs of Eunice and Lincoln. That injunction was granted but was subsequently discharged.
Eunice has also applied for a declaration that certain instruments are void and an order that Julie return various assets and possessions to Eunice. In the alternative, Eunice seeks an order under the Aged and Infirm Persons’ Property Act 1940 (SA) appointing a manager to Lincoln’s estate.
Eunice alleges that in recent years Julie has systematically taken control of her and Lincoln’s affairs. Specifically, Eunice contends that Julie has:
·taken control of her and Lincoln’s finances;
·taken control of their home and possessions;
·moved them to a nursing home against Eunice’s wishes; and
·restricted whom Eunice could contact.
Eunice also alleges that Julie caused Eunice and Lincoln to sign various instruments. These instruments had the effect of altering the directorship and shareholding of two family businesses to the benefit of Julie. The relevant shares have a substantial value.
Pursuant to r 269 of the Rules, the action is proceeding by way of affidavit. Julie has filed an affidavit denying some of the factual assertions made by Eunice. She alleges that she has never harassed, threatened or intimidated her parents. She claims that she has been close to them her entire life and in recent years, as their health deteriorated, she has attended to their care and needs. She also claims her mother was diagnosed with Alzheimer’s Disease (‘AD’) in 2009 and that this has affected her ability to live independently. Julie contends that her mother’s health issues have strained their relationship.
A number of other affidavits, some of which annex medical reports, have also been filed. Additional medical evidence has been produced in response to subpoenas. Those materials present conflicting accounts about Eunice’s cognitive capacity.
The application
On 7 November 2017, Julie filed an interlocutory application seeking various orders, including that the Court appoint a litigation guardian to represent the interests of Eunice. The application also sought an order that Eunice submit to a medical examination by Dr Rochelle Whelan and Dr Cathy Short and any other treating doctor identified by Eunice or the two named doctors. Various restraining orders were also sought. The application was stated to be made pursuant to, amongst other rules, rr 79(3) and 153 of the Rules. Lincoln supported the application.
The interlocutory application was heard by a Master on 21 November 2017. During the hearing, the Master ruled that it was appropriate for the Court to conduct an inquiry as to whether Eunice required a litigation guardian. His Honour delivered ex tempore reasons outlining the basis for that conclusion and adjourned the proceedings to enable the parties to consider the appropriate form of the orders.
After the hearing on 21 November 2017, the parties agreed that Mr Mark Reid, a clinical neuropsychologist, was the appropriate medical expert to examine Eunice and report on her condition. However, the parties were unable to agree on the terms of the joint letter of instruction to Mr Reid. On 6 December 2017 the Master settled the terms of the letter of instruction to Mr Reid and made the following order, the terms of which were agreed by the parties:[2]
[2]    I note that on page 8 of the transcript of the hearing on 6 December 2017, counsel for Julie informed the Master that “we have prepared draft minutes and with my learned friend’s input, I apologise for the handwriting, but we are agreed on that form of minute”.
Recitals: UPON READING the affidavit evidence filed by the parties and the documents produced under subpoena by Dr Cathy Short and Dr Rochelle Whelan and upon hearing submissions from the parties
THE COURT DIRECTS that:
1.   There be an inquiry as to whether the First Plaintiff is a person under disability such that a litigation guardian should be appointed.
2.   Pursuant to paragraph 1 above, the Court directs that:
(a)the joint letter of instruction marked “A” be sent to Mark Reid on or before 7 December 2017;
(b)the First Plaintiff submit to such examination or examinations as desired by Mark Reid; and
(c)Mark Reid prepare a written report setting out the result of the examinations and provide that report to the Court and the solicitors for each party.
3.   Until the inquiry has been completed no party is to take any further steps in relation to these proceedings.
4.   Subject to any further order the costs of Mark Reid’s examination be borne by the First Defendant at first instance.
5.   The costs of the First Defendant’s application that there be an inquiry as to whether the First Plaintiff is a protected person be reserved for determination after the inquiry.
6.   The parties may apply for further orders or directions.
Those orders, and the ex tempore reasons of the Master delivered on 21 November 2017, form the subject of this appeal.
Supreme Court Rules
Before referring to the Master’s reasons it is necessary to note the terms of the Rules relevant to this appeal. Rule 78 sets out the requirements with respect to the appointment and role of litigation guardians as follows:
78—Representation of party under disability
(1)As a general rule, a person under a disability (a protected person) may only take or defend proceedings through a guardian who has authority to represent the interests of the protected person (a litigation guardian).
Exception—
The Court may, however, permit a protected person to act personally in bringing, or taking any step in, proceedings.
(2)The litigation guardian is responsible for the conduct of the proceedings on behalf of the protected person and may take any step in the proceedings and do anything else that the protected person might have done if of full age and capacity.
(3)A party who becomes aware that another party is a protected person and is not represented by a litigation guardian as required by this rule must inform the Court of that fact.
(4)A judgment or proceeding of the Court is not invalid because a party was not represented by a litigation guardian as required by this rule, but the Court may set aside the judgment or proceeding if satisfied that the party has been substantially prejudiced through the lack of such representation.
A “person under a disability” is defined in r 4:
disability—each of the following is a person under a disability—
(a)     a child;
(b)a person whose affairs are administered (wholly or in part) under a law for the protection of persons suffering from mental or physical disabilities;
(c)     a person who is not physically or mentally able—
(i)    to manage his or her own affairs; or
(ii)     to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others);
Rule 79(3) gives the Court the power to appoint a litigation guardian and provides:
The Court may, on application by an interested person or on its own initiative, permit or appoint a suitable person to be a protected person's litigation guardian.
Rule 153 provides that a party may require another party to submit to a medical examination:
153—Obligation to submit to medical examination at request of another party
(1)A party whose medical condition is in issue in an action must, at the request of another party to the action, submit to a medical examination, at the cost of the party making the request, by a medical expert nominated by that party.
(2)If a party is asked to submit to a medical examination after the action has been referred for trial, the party is not obliged to comply with the request unless the Court authorises or ratifies the request.
(3)A party who asks another to submit to a medical examination must, at the request of the other party, pay to the other party a reasonable sum to cover the cost of travelling expenses and loss of earnings from attendance at the medical examination.
(4) A medical practitioner who carries out a medical examination at the request of a party must prepare a written report setting out the results of the examination.
(5) A party who asks another party to submit to a medical examination under this rule must give the other parties to the action a copy of the report obtained on the examination.
(6) If the party undergoing the examination does not receive a copy of the medical expert's report within 14 calendar days after the date of the medical examination, that party may ask the medical practitioner for a report on the examination.
The Master’s reasons
The Master referred to Manning v Russell where Nicholson J held that if there is an issue about capacity, the Court may need to undertake an inquiry to establish the true position.[3] The Master considered the first step to be for the Court to satisfy itself that there are proper grounds for undertaking an inquiry. If proper grounds exist, the second step is to determine how such an inquiry ought to be conducted.
[3] (2015) SASR 135.
The Master also referred to the observation by Nicholson J in Manning v Russell that caution must be exercised when considering such an application as a party to litigation may seek a medical inquiry for tactical reasons rather than because of bona fide concern about the party’s capacity. The Master acknowledged Eunice’s submission that one of the primary objects of these proceedings is to investigate the transfer of shares from Eunice to Julie for no consideration. This was said to be of particular importance because medical records showed that Julie had told doctors that Eunice lacked capacity prior to the transfer of the shares.
The Master noted that there were a number of medical reports before the Court. A report from a clinical neuropsychologist, Dr Rochelle Whelan, dated 20 June 2017, suggested that Eunice may suffer from memory problems. The Master referred to Dr Whelan’s comments at page 5 of her report:
In interview there was evidence of memory problems, but more concerningly, that Eunice no longer had a full insight into her diagnosis of dementia. As a result of this lack of insight, Eunice's judgment and reasoning appear impaired.
Counsel for Eunice criticised Dr Whelan’s report on two grounds. These being that the report was not independent because it relied on information provided by Julie and that the full range of relevant testing was not carried out. Whilst the Master acknowledged Eunice’s concerns about the report, his Honour nonetheless found that a qualified medical practitioner had been prepared to express an opinion as to Eunice’s capacity.[4] For that reason, he was satisfied that the Court could not simply ignore the expressed opinion and decline to conduct an inquiry. There was sufficient medical evidence before the Court to show that the issue of capacity was genuine. His Honour noted:
It seems to me it is in the interests of all parties to put the issue to bed one way or the other. It is also in the interest of the Court to ensure that its processes are not abused. I accept the plaintiff’s concerns that Dr Whelan may have been influenced by the daughter's opinions or explanations about family circumstances. There is, however, sufficient medical evidence before the Court to show that the issue of capacity is genuine and needs to be inquired into.
It is appropriate to make an order under rule 153 requiring the first plaintiff to submit to an appropriate medical examination to determine solely the question of her mental capacity to engage in the conduct of these legal proceedings. None of the medical evidence deals with that particular capacity question.
The Master noted that “in a sense” the matter involved the combined operation of rr 78 and 153. His Honour also held that the Court has an inherent jurisdiction to order a medical examination.
[4] Dr Whelan is not a medical practitioner but a specialist psychologist with a doctorate qualification. However, I regard her as an expert.
The Master held that another appropriately qualified medical practitioner must be selected jointly by the parties to provide a report to the Court. His Honour also held that the parties should author a joint letter of instruction that enclosed agreed medical reports. He then adjourned the matter to allow the parties to consider the form of the order. The terms of the order ultimately made by his Honour are reproduced at [14] above.
Competency of the appeal
Julie and Lincoln have challenged the competency of this appeal. I heard the parties’ submissions about competence and reserved my decision. I then proceeded to hear argument on the substantive appeal. It is convenient to deal first with the issue of competence.
Respondents’ submissions as to competency of the appeal
The respondents submit that the Master’s requirement that Eunice attend for medical examination was not a “judgment” within the meaning of the Supreme Court Act 1935 (SA). Section 50(2) of that Act provides a statutory right to appeal a “judgment” of a Master of the Supreme Court. The term “judgment” is defined in s 50(6) to include “an order or direction” and “a decision not to make an order or direction”.
The respondents refer to the following statement by King CJ in Legal Practitioners Complaints Committee v A Practitioner: [5]
A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it maybe the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to 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. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.
[5] (1987) 46 SASR 126 at 127 (‘Legal Practitioners Case’).

The respondents submit that the action by the Master was simply a direction that more evidence should be produced as part of his Honour’s broader inquiry as to whether a litigation guardian should be appointed. As such it was an “incidental ruling” in the same sense referred to by King CJ above. In other words, the Master’s “incidental ruling” did not resolve any controversy in the action, but was merely an incidental step towards the making of an “order” within the meaning of s 50(6) of the Supreme Court Act. Julie also cites the following passage by Mason CJ in Australian Broadcasting Tribunal v Bond, where his Honour said: [6]
…a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.
[6] (1990) 170 CLR 321 at 337. Julie notes that the decision in Bond was applied by the Full Court of the Supreme Court of South Australia in O’Dea v Commissioner of Police (SA) (2016) 125 SASR 159 and Legal Profession Conduct Commissioner v Romano [2017] SASCFC 167.
Appellant’s submissions as to the competency of the appeal
Eunice submits that the action by the Master was a “judgment” within the meaning of s 50(6) of the Supreme Court Act and properly forms the subject of this appeal.
Eunice submits that the respondents have confused the concept of a “judgment” and the concept of an “interlocutory judgment”. The Master directed that until an inquiry is completed, no party is to take further steps in the proceedings. In doing so, the Master finally determined the question of whether there was to be an inquiry. Eunice refers to the decision of Peek J in Stanberg Pty Ltd v Tabibi.[7] That case involved a dissolution of a partnership. A Master made a determination that a particular surcharge should not be allowed. Peek J applied the dicta of King CJ in the Legal Practitioners Case and found that the Master, in delivering the orders and reasons, had performed a judicial act to resolve an interlocutory issue. The Master’s determination was therefore appealable.
[7] [2012] SASC 187.
Eunice further submits that whilst the Legal Practitioners Case is still good law,[8] the Master’s direction was not an “incidental ruling” within the meaning of King CJ’s dicta. Rulings to obtain evidence are often judgments. For example, an order that a party provide further disclosure is categorised as a judgment, even though it could also be categorised as a furtherance of the Court’s fact-finding function.
[8] Police v Williams (2015) 123 SASR 506 at 510, Kourakis CJ, Gray and Stanley JJ agreeing.
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).
Julie relied in her submissions upon the decisions of the High Court in Bond and of the Full Court in O’Dea v Commissioner of Police (SA)[11] and Legal Profession Conduct Commissioner v Romano.[12]Those judgments dealt with statutory references to a “decision” in the context of a right to appeal or seek judicial review. Bond concerned the meaning of the reference to a “decision” in the Administrative Decisions (Judicial Review) Act 1977 (Cth). The relevant issue in O’Dea was the meaning of a “decision” in the context of the right to pursue an appeal under the District Court Act 1991 (SA) against an administrative decision. Romano concerned the meaning of the term “decision of the Tribunal” in s 86 of the Legal Practitioners Act 1981 (SA).The judgments in Bond, O’Dea and Romano are distinguishable because of the different statutory context. Those authorities are not directly relevant to the question of whether the Master merely made an “incidental ruling” or delivered a “judgment” within the meaning of s 50(6) of the Supreme Court Act.
[11] (2016) 125 SASR 159.
[12] [2017] SASCFC 167.
The Master considered the submissions and evidence, delivered ex tempore reasons and made interlocutory orders that, in one instance, imposed a binding obligation on Eunice. I am satisfied that the Master’s orders constituted a “judgment” within the meaning of s 50(6) of the Supreme Court Act. I therefore find that the appeal is competent. I will determine the appeal on its merits.
Submissions on the appeal
Appellant’s submissions
Presumption as to capacity
Eunice submits that there is a presumption as to capacity, which extends to the management of litigation.[13] She notes that whilst r 79(3) gives the Court power to appoint a litigation guardian, it does not set out the procedure for the Court to appropriately determine who is a “person under a disability”. Instead, the Court has adopted a procedure of directing that an “inquiry” take place so the Court can determine whether the litigant meets the criteria of a “person under a disability”.[14]
[13] Dalle-Molle v Manos (2004) 88 SASR 193 at [17], Debelle J; Slaveski v Victoria (2009) 25 VR 160 at [25], Kyrou J.
[14] See Atkins v Atkins [2011] SASC 85 at [9]-[11], Judge Lunn; Manning v Russell (2015) 123 SASR 135 at [15], Nicholson J; M v L [2017] SASC 39 at [9], Hinton J.
Eunice submits that in light of the presumption as to capacity, a party seeking any such “inquiry” bears the onus of persuading the Court that there is a “real apprehension” that the other party is physically or mentally unable to make rational decisions about “taking, defending or settling proceedings (or to communicate decisions to others)”.[15]
The conduct of an inquiry
[15] Manning v Russell (2015) 123 SASR 135 at [20], [37], Nicholson J; see also M v L [2017] SASC 39 at [31], Hinton J.
Eunice acknowledges that the means by which the Court will determine whether a litigation guardian is required will vary depending on the case, but also notes the following observations of the Full Court of the Federal Court in L v Human Rights and Equal Opportunity Commission: [16]
There will, however, be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination.
[16] (2006) 233 ALR 432 at [27], Black CJ, Moore and Finkelstein JJ.
To this end, Eunice submits that in the present case there is a large amount of medical evidence but she simply refuses further testing. Eunice refers to the following statement of Judge Lunn, formerly a Master of this Court, in Atkins v Atkins: [17]
If the Court makes the order for the inquiry, directions will then be given about how the inquiry is to proceed, which may include directions about disclosure of documents and medical examinations.
[17] [2011] SASC 85 at [10].
The fact that the Master determined there was a sufficient basis to conduct an inquiry does not mean that his Honour was bound to adopt any particular procedure for that inquiry. In particular, there is no requirement in the Rules that an inquiry must involve a medical examination.
No inherent power to compel a medical examination
Eunice submits that, in the absence of legislation, there is no inherent power in the Court to compel a party to undergo an examination for the purposes of obtaining evidence with respect to a medical condition.[18] The Court’s inherent power or jurisdiction is described as “the inherent power necessary to the effective exercise of the jurisdiction granted”.[19] However, such power is not at large and can only be exercised where necessary for the administration of justice.[20]
[18] Donnelly v Shallard (1936) 53 WN (NSW) 121; Emery v Hobson (1944) 61 WN (NSW) 136; Baugh v Delta Water Fittings Ltd [1971] 1 WLR 1295; Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 at 71, Lord Denning MR; Lane v Willis [1972] 1 WLR 326 at 331-332, 336, Davies and Roskill LJJ; Starr v National Coal Board [1977] 1 WLR 63; Furesh v Schor (2013) 45 WAR 546 at [4], [68]-[72], [80]-[97], Pullin, Newnes and Murphy JJA.
[19] NH v Director of Public Prosecutions (SA) (2016) 90 ALJR 978 at [67], French CJ, Kiefel and Bell JJ.
[20] Reid v Howard (1995) 184 CLR 1 at 16-17, Toohey, Gaudron, McHugh and Gummow JJ.
Eunice contends that the inherent power of the Court has never extended to a power to compel a person to attend for medical examination. That power has never been regarded as necessary to the administration of justice. Eunice refers to Basten JA in Kurnell Passenger and Transport Service Pty Ltd v Randwick City Council as having stated the proper position: [21]
Rules of court now provide that where the physical or mental condition of a party is relevant to a matter in issue, another party may seek to have the first party examined by its medical practitioners and, where the first party fails to comply with such a reasonable request, the court may dismiss the proceedings: Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), Pt 23, rr 23.1 and 23.9. Before such rules were promulgated, the court had no power to order anyone to submit to a medical examination, but could direct that an action be stayed unless the plaintiff submitted to examination by doctors nominated by the defendant: see Baugh v Delta Water Fittings Ltd [1971] 1 WLR 1295; Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 at 71 (Lord Denning MR). The court retains such a power.
[21] (2009) 230 FLR 336 at [79], Basten JA.
Eunice also refers to the judgment of Hinton J in M v L, where his Honour noted that in Goddard-Elliott v Fritsch,[22] Bell J: [23]
…considered that the inherent jurisdiction enjoyed by the Supreme Courts would support any order that the person thought to be under a disability be examined by medical practitioner and a report provided to the Court…
[22] [2012] VSC 87 at [564], Bell J, citing In re WM (1903) 3 SR (NSW) 552 at 567-568, Owen J, Walker and Pring JJ agreeing; Re Magavalis [1983] 1 Qd R 59 at 63-64, McPherson J.
[23] [2017] SASC 39 at [17].
In Hinton J’s view, the parens patriae jurisdiction would also support such action.[24] In Goddard-Elliott, Bell J relied on two authorities: In re WM[25] and Re Magavalis.[26] These cases were both decided in the lunacy jurisdiction. Eunice submits that In re WM and Re Magavalis do not establish that this Court has an inherent power to compel an examination in circumstances where the “lunacy” jurisdiction is not invoked. For this reason Eunice submits that Bell J’s finding was clearly wrong, and to the extent that Hinton J adopted Bell J’s reasoning, his Honour’s judgment should not be followed. Eunice also submits that the contention that the Court’s jurisdiction to “supervise the conduct of admitted practitioners” extends itself to compulsory medical examinations of represented parties is fanciful.[27]
Power under r 153
[24] Ibid.
[25] (1903) 3 SR (NSW) 552 at 567-568, Owen J, Walker and Pring JJ agreeing.
[26] [1983] 1 Qd R 59 at 63-64, McPherson J.
[27] That contention is set out in the Notice of Contention filed by Julie on 12 January 2018.
Eunice submits that instead of relying on an inherent power, the Court has instead enacted r 153 with respect to medical examinations. However, unlike other jurisdictions, r 153 does not empower the Court to order that a person attend a medical examination.[28] Instead, r 153 is modelled after the procedure adopted in Starr v National Coal Board.[29] That is, a party may request that another party attend an examination, and upon such a request the party must attend. Rule 154 provides the requesting party with certain remedies if the request is not fulfilled. Eunice notes that in Western v Male, Gray J (Nyland and Vanstone JJ agreeing) held that the Court had additional powers under rr 12, 13 and 117 to enforce compliance with r 153.[30] His Honour stated that:[31]
Importantly, the court retains a discretion as to whether to make an order under any of these Rules.
[28] cf: Uniform Civil Procedure Rules 2005 (NSW), r 23.4.
[29] [1977] 1 WLR 63.
[30] (2010) 107 SASR 285.
[31] Ibid at [41].
However, in exercising any such discretion, Gray J noted that the Court must find “an appropriate proportionality” between the substantive rights of the individual and the interests of practice and procedure.[32]
Errors in the Master’s reasons
[32] Ibid at [28].
Eunice contends that the Master made a number of errors in determining the application.
First, Eunice contends that the Master erred when his Honour concluded:
The only way to determine whether the first plaintiff has capacity to give instructions in these proceedings, or whether she needs a litigation guardian to do so on her behalf, is to have a medical examination conducted.
Eunice submits that the Master has conflated two separate and distinct issues. The first issue is whether there should be an inquiry. The second issue is the appropriate conduct of that inquiry, namely whether there should be a medical examination. His Honour was not “dealing with the combined operation” of rr 78 and 153. Furthermore, it was not the case that the “only way to determine whether [Eunice] has capacity … is to have a medical examination conducted.” In this respect Eunice contends that the Master erred in understanding the nature of his Honour’s jurisdiction or power. This misunderstanding is of sufficient gravity to necessitate setting aside the orders and the reconsideration of the application.
Even if this Court finds that the Master did not conflate the two issues, Eunice submits that there are nevertheless serious errors in his Honour’s determination. In respect of the first issue of whether there should be an inquiry, his Honour erred in only taking into account the evidence of Dr Whelan. Dr Whelan’s opinion was based on the instructions of Julie. There was no objective testing. To this end, Eunice submits the “stream cannot rise above the source”. The involvement of Julie in the preparation of the report undermined its utility for the purposes of the application. As such, there was no reasonable basis for his Honour to form a “real apprehension” that there may be an issue with Eunice’s capacity. Eunice further submits that even if the report gave rise to a “real apprehension”, the Master erred by failing to take into account:
1The fact that Eunice was represented by counsel and solicitors;
2The fact that Eunice’s son (Gary) was instructing the same counsel and solicitors and sought the same relief in the proceedings;
3The generalised opinion of Eunice’s General Practitioner, Dr Campbell as to her capacity;
4The assessments of Professor Singh and Dr Mocellin and the results of the cognitive screening performed by them; and
5The lay observations of Vernon Johnson and Margaret Johnson as to Eunice’s capacity in November 2017.
Eunice submits that the fact that she is represented by counsel and solicitors, and the professional obligations that this entails is of particular importance. It was not given any consideration by the Master.
Secondly, Eunice submits that the order for examination is not an order under r 153. It is not an enforcement of a request from Julie that Eunice be subject to a medical examination. Instead, it requires that all parties jointly request a report from Mr Reid. How that report is used, and whether or not it is binding remains unclear. Even if the order is treated as made under r 153, the Master did not engage in the reasoning process described by Gray J in Western v Male. Namely, whether the examination is proportionate. To this end, Eunice submits that it is one thing to compel a litigant to attend a medical examination to resolve a substantive issue in the proceedings. It is quite another to compel a litigant to attend a medical examination to resolve an ancillary issue, particularly in circumstances where there is already medical evidence before the Court. In this case, Eunice was required to attend a medical examination to resolve an ancillary issue. Eunice submits that this was utterly disproportionate to the proceedings. The Master did not consider whether such an examination would constitute an invasion of Eunice’s autonomy, privacy and liberty. Furthermore, the Master only gave the faintest of consideration to the potentially tactical nature of the application.
Thirdly, Eunice submits it is unclear to what extent the Master purported to rely on any inherent jurisdiction to order the medical examination. In any event, Eunice submits that such jurisdiction does not exist and as such, the order was beyond the power of the Master.
Finally, Eunice contends that if this Court finds the Master did not err in ordering a medical examination, then the letter sent to Mr Reid was in error. The terms of the letter are not neutral and do not address the issue posed by the inquiry. In particular, they are far too onerous in terms of what is necessary to meet the required standard of capacity.
Orders sought
Eunice seeks the following orders from the Court:
·The Master’s orders be set aside and Julie’s application for an appointment of a litigation guardian be dismissed with costs.
·In the alternative, paragraphs 2 and 4 of the Master’s orders be set aside and the inquiry ordered pursuant to paragraph 1 be remitted to the Master for further hearing.[33]
·In the further alternative, paragraphs 2 and 4 of the Master’s orders be set aside and an order made that Eunice be compelled to undergo a medical examination by a medical expert nominated by Julie.
·In the further alternative, paragraph 2(a) of the Master’s orders be set aside and an order made that such further or other letter as this Court deems fit be sent to Mark Reid for the purposes of instructing him as to the examination.
[33] If the matter is remitted the appellants would seek the opportunity to put on opposing material to Ms Gilliland’s affidavit. The admissibility of that affidavit is discussed later in my reasons at [65].
First respondent’s submissions

Julie submits the Master had power pursuant to r 153 of the Rules to make the order. Eunice has failed to identify any error or failure by the Master in exercising his power under r 153.
Alternatively, Julie submits that the Master had an inherent jurisdiction to make the order. The Master was empowered to do so under the Court’s power to protect vulnerable persons (in circumstances where the Court is presented with an elderly party in ill-health) and to supervise the conduct of admitted practitioners.[34] Julie notes that in Manning v Russell, Nicholson J found that the Court had the power to order an inquiry either under rr 78 and 79 of the Rules or pursuant to its inherent jurisdiction. In the present case Julie has satisfied her onus and shown that there is a “real apprehension” that Eunice may lack capacity to instruct solicitors in these proceedings.
[34] On 12 January 2018, Julie filed a Notice of Contention contending that: “…the primary judge was within his discretion to make each of the directions set out at paragraphs 1 to 6 of the directions dated 6 December 2017 and in making the findings and/or rulings in the reasons dated 21 November 2017 as he was empowered to do so in the inherent jurisdiction of the court to protect vulnerable persons, to ensure that the processes of the court are conducted in a manner consonant with the proper administration of justice and to supervise the conduct of admitted practitioners.”
Second respondent’s submissions
Lincoln’s submissions largely echo Julie’s submissions.
Lincoln contends there is no identifiable House v The King error in the Master’s exercise of discretion under r 153 of the Rules.[35] The decision was not “manifestly wrong”, nor did it result in a “substantial miscarriage of justice”.[36] In that context, Lincoln notes the contention that there is insufficient medical evidence is untenable. Dr Whelan expressed an unequivocal view that Eunice lacked capacity. Furthermore, Eunice’s proposed alternative of a preliminary trial of capacity is unnecessary. Such a course would lead to further cost and delay. Competing medical evidence already exists. Accordingly, it was appropriate for the Master to resolve the issue by the appointment of an independent expert. That order was both warranted and within the scope of his Honour’s discretion.
[35] (1936) 55 CLR 499.
[36] Ibid at 505, Dixon, Evatt and McTiernan JJ.
Lincoln also contends that the letter to Mr Reid appropriately represents the relevant inquiry and the expert evidence sought. There is no basis for Eunice’s contention that the letter was in error.
Alternatively, Lincoln contends that the Master had an inherent jurisdiction to order additional evidence. To that end, Lincoln cites Manning v Russell and submits that it is in the interests of the administration of justice to ensure that litigants are capable of understanding and making decisions in complex litigation in the Supreme Court. Furthermore, Lincoln submits that the Master had the power to make the order pursuant to the Court’s inherent jurisdiction to exercise authority over its officers and properly supervise the conduct of legal practitioners.[37]
[37] H Stanke & Sons Pty Ltd & Cape Banks Processing Company Pty Ltd v von Stanke, O’Meara & Ors (2006) 95 SASR 425 at 442-443, White J; Lyons v Legalese Pty Ltd & Ors (2016) 126 SASR 232 at 244-253, Hinton J.
At the appeal hearing counsel sought to tender a second affidavit affirmed by Ms Victoria Gilliland on 14 December 2017. Ms Gilliland is the solicitor acting for Lincoln. The affidavit sets out in considerable detail the instructions received from Lincoln and also the inquiries made on his behalf about a range of issues of apparent relevance to the proceedings, including matters such as details of his and Eunice’s assets and living arrangements. I indicated that I would receive the affidavit de bene esse. I do not consider that the matters referred to in the affidavit are relevant to the appeal against the orders made by the Master and I decline to receive the affidavit as fresh evidence on the appeal. That is not to say that the contents of the affidavit may not be of considerable importance at a later stage in these proceedings.
The evidence
A large number of medical and psychological reports have been annexed to affidavits filed in these proceedings or produced under subpoena. Several friends of Eunice have also deposed to her capacity. The professional and lay evidence was before the Master when he made his decision. It is necessary to refer to the evidence in some detail.
The medical evidence
Dr Cathy Short, a neurologist, has prepared many reports concerning Eunice. These reports have been addressed to the general medical practitioners treating Eunice. The first such report was dated 18 March 2009. Dr Short noted that Eunice had difficulties with her memory, depression and occasional disorientation as to language and dates. While the report is not entirely clear, this information seems to have been provided by Julie. Eunice was examined and undertook the Mini Mental State Examination (‘MMSE’).[38] Her MMSE score was 27 out of 30. Dr Short concluded that in light of her examination and the MMSE results, there was no evidence of a dementing illness but Eunice may have a mild cognitive impairment. Dr Short also noted that Eunice had risk factors for AD given her positive family history.
[38] The MMSE is a quick screening test commonly used where cognitive impairment is suspected.
Dr Short prepared a further report dated 1 July 2009. She noted that a CT scan of the brain showed no focal abnormality. Eunice had undertaken six different cognitive assessment tests on 9 April 2009. Eunice’s MMSE score on that occasion had been 27 out of 30 and on 1 July 2009 it was 29 out of 30. Dr Short also stated that although Eunice had done reasonably well on the MMSE test, she had performed quite poorly on the ADAS-COG test.[39] Dr Short spoke to Eunice about “the potential diagnosis of an early Alzheimer’s type dementia” and her opinion that “she is probably sitting on the cusp between mild cognitive impairment and early dementing process.” Dr Short also noted that it was difficult to diagnose AD, particularly in the early stages.
[39] The meaning of the acronym ADAS-COG is not explained in the material before the Court. However, I am aware from evidence in proceedings before the South Australian Civil and Administrative Appeals Tribunal when I was President of the Tribunal that ADAS-COG is a screening test for AD.
In a report dated 25 November 2009 Dr Short referred to “follow up of her Alzheimer’s Disease”. Thereafter, Dr Short saw Eunice at intervals of generally six to 12 months. The most recent report from Dr Short supplied to the Court is dated 19 April 2017. In reports after November 2009 Dr Short referred variously to mild AD, mild dementia, early AD or AD without any qualifying adjective. Dr Short’s reports have progressed over eight years from a “potential diagnosis of an early Alzheimer’s type dementia” to positive statements that Eunice has AD.
Senior counsel for Eunice observed that although Dr Short had stated that Eunice suffered from AD, none of the reports prepared by Dr Short contain a formal diagnosis of that condition. That observation is correct.
Almost all of the reports provided by Dr Short refer to the results of MMSE tests. There has been considerable fluctuation in the recorded MMSE scores. Eunice had recorded scores of 29 out of 30 in July 2009, September 2009, May 2010, November 2011 and February 2014. However, she recorded scores of 28 out of 30 in November 2010, 25 out of 30 in November 2011, 27 out of 30 in May 2012 and May 2013 and 24 out of 30 in October 2012. In March 2015 Eunice recorded an MMSE score of 30 out of 30.
Dr Short explained the poor result in November 2011 on the basis that Eunice was “quite flustered” at her last appointment. Dr Short also noted in relation to the score of 24 out of 30 in October 2012 that Julie had informed her that her mother had been “getting worse cognitively over the last few months, even prior to her husband becoming unwell. Family and friends have also commented that her memory appears to be declining.” Dr Short described the score of 29 out of 30 recorded in February 2014 as “quite good”. In August 2016 Dr Short reported an MMSE of 20 out of 30 and in April 2017 a score of 22 out of 30.
On some occasions Dr Short also administered the Montreal Cognitive Assessment (‘MOCA’) to Eunice. She recorded a score of 25 out of 30 on the MOCA in February 2014, 20 out of 30 in January 2015 and 21 out of 30 in both March and July 2015. Dr Short suggested in relation to the January 2015 test that it was unclear whether the poor result was caused by a urinary tract infection or progression of her AD.
On 18 March 2015 Dr Short stated in a letter to a Dr Richard Weeks (apparently another specialist) that she had diagnosed Eunice with “very early AD” in 2009. Julie had reported ongoing behavioural change with anxiety, agitation and depression. However, Dr Short said she was not convinced that the symptoms were frequent enough to warrant changing Eunice’s medication. Dr Short’s letter of 18 March 2015 was apparently prompted by an email sent to her by Julie on 12 March 2015 in which she referred at length to Eunice’s condition and behaviour.
Dr Short also noted in a report dated 19 April 2017 that Eunice showed a noticeable change in her physical state. The quality of her speech had changed, she now walked with a stick, had lost a significant amount of weight and suffered from orobuccal dyskinesias[40] with lip smacking, intermittent tongue protrusion and mild head and upper limb choreiform[41] type movements. Dr Short stated that she tended to agree with the view held by Lincoln and by Julie that it was not safe for Eunice to leave the aged care facility where she was residing with Lincoln and return home. Dr Short did not make clear in her report whether this observation was based upon Eunice’s physical disorders, cognitive capacity or a combination of both.
[40] Dorland’s Illustrated Medical Dictionary (Saunders, 30^th ed, 2003) defines “dyskinesia” as “distortions or impairments of voluntary movements, as in tic, spasm or myoclonus”. I understand “orobuccal” to relate to the mouth.
[41] The same source defines “choreiform” as “resembling chorea”. The latter term is defined to mean “The ceaseless occurrence of a wide variety of rapid, highly complex, jerky dyskinetic movements that appear to be well coordinated but are involuntary”.
Dr Short also noted in the report dated 19 April 2017 that she did not know Eunice’s level of testamentary capacity and this required formal assessment. She intended to refer Eunice to Rochelle Whelan, a neuropsychologist, for formal assessment of testamentary capacity.
On 17 February 2016 Eunice’s general practitioner, Dr John Campbell, stated in a letter addressed to Eunice that “her mental state (cognitive decline) is such that she is not able to manage her own superannuation fund”. I note that Eunice and Lincoln hold substantial investments in shares. On 3 April 2017 Dr Campbell stated that Eunice was capable of making decisions regarding her own care and place of residence. On 13 April 2017 Dr Campbell stated that he knew of no medical reason why Eunice should not be given access to her will and information about her financial affairs.
On 10 June 2017 a radiologist, Dr S Hobbs, at the Modbury Hospital reported on the results of a CT scan of Eunice’s brain. Dr Hobbs stated that Eunice suffered from brain atrophy in keeping with her age and displayed particular central volume loss and ventriculomegaly.[42] There was no evidence of recent haemorrhage or infarction.
[42] The term “ventriculomegaly” is defined by Dorland’s Illustrated Medical Dictionary (Saunders, 30^th ed, 2003) to mean “gross enlargement of a ventricle of the brain, as by hydrocephalus”.
Dr Sandy Patel reported on 25 May 2017 as to the results of magnetic resonance imaging (MRI) of Eunice’s brain. Dr Patel stated:
… the hippocampi are probably moderately reduced although on the right this may be moderate to severe. A degenerative state such as AD is possible however the MRI findings cannot be regarded as highly suggestive. There are small left cerebellar infarcts which are non-acute. In the non‑acute setting, these infarcts do not appear of sufficient size to cause the current clinical picture.
Dr Patel also noted that “there is the possibility of chronic compensated aqueduct stenosis or possibly even normal pressure hydrocephalous”.
Dr Rochelle Whelan, a clinical neuropsychologist, provided a detailed report dated 20 June 2017. Dr Whelan noted that Eunice had been diagnosed with AD in 2009. That is apparently a reference to Dr Short’s report. Dr Whelan also observed that there had been a progressive decline in Eunice’s functional and cognitive skills over the past few years. That observation was apparently based upon the MMSE and MOCA testing undertaken by Dr Short.
Dr Whelan reported that Eunice denied any cognitive changes in recent years, other than that which was normal for her age, and disagreed with the diagnosis of AD. She did not understand why Julie and Lincoln did not consider that she and Lincoln could return home. Eunice was unable to recall, despite prompting by Dr Whelan, that a recent admission to Modbury Hospital had been prompted by unwanted facial and body movements caused by medication side effects.
Dr Whelan reported at length on the information provided to her by Julie concerning Eunice’s condition. Julie expressed particular concern that Eunice was now suspicious of her behaviour and motives and had gone to the extent of catching a taxi to Julie’s workplace to confirm that she was there. Julie referred to behavioural changes, wandering, refusal to take medications and suggestibility.
Dr Whelan also reported that she had spoken to a long standing friend of Eunice and Lincoln, Michelle Holding. Mrs Holding suggested that over the past three to five years Eunice’s dementia had become more pronounced.
Dr Whelan also reported that although Eunice agreed to participate in assessment she required high levels of encouragement to continue with tasks. Ultimately, she was unable or unwilling to complete any of the subtests and, despite repeated explanation, she did not appear to grasp the link between the tests, her diagnosis and the capacity assessment. Ultimately, the testing was discontinued when Eunice made clear that she wanted to leave the room.
Dr Whelan reported that Eunice did not display full insight into her cognitive difficulties. Her judgment and reasoning appeared to be negatively affected by this reduced insight. Based on all available information, which included reports from Dr Short, the CT and MRI brain scans, Dr Whelan stated that in her opinion Eunice has a mental incapacity due to dementia. As a result of this incapacity she did not currently have capacity to make an informed decision about where she lives, nor the mental capacity to make complex decisions about her finances. Dr Whelan also opined that Eunice does not have the mental capacity to change her enduring power of attorney and strongly suspected that she did not have the mental capacity to change her will. Dr Whelan noted that if that issue were raised the family should consult a lawyer with relevant expertise.
In July 2017 and again in October 2017 Eunice travelled to Melbourne with her granddaughter Lisa (the daughter of Gary) and her friend and former carer, Ms Janina Karr. While in Melbourne, Eunice was examined by Associate Professor Dhiren Singh, a psychiatrist, and Dr Ramon Mocellin, a consultant psychogeriatrician and neuropsychiatrist. Lincoln alleges that he was not informed that Eunice had travelled to Melbourne (they live in different aged care facilities).
Professor Singh provided a report dated 27 July 2017 to a Melbourne general practitioner, Dr Elissa Heineke, of the Airlie Women’s Clinic. Professor Singh reported that he saw Eunice on her own and also spoke to Lisa and Ms Karr. He reported that Eunice wanted to change her will, revoke her current power of attorney and sign a new enduring power of attorney with joint powers being conferred upon Gary and Lisa. Professor Singh described Eunice as an intelligent and articulate person who participated actively and appropriately in the assessment process. She stated that she wanted to change the current legal arrangements because she was unhappy with Julie’s decision making, felt excluded and did not have confidence that decisions were being made in her or Lincoln’s best interests.
Professor Singh administered the MMSE test with Eunice scoring 29 out of 30. He was surprised by her performance in the cognitive testing given the diagnosis of AD about nine years earlier. He would have expected her to lose one to two points per year on the MMSE if she suffered from AD.
Professor Singh expressed the opinion that Eunice had capacity to change her will or make a new will. She knew what a will was, was able to tell him the nature of her assets, identify her beneficiaries, state the role of the executor and who might make claim to her will. She also understood what an enduring power of attorney was, the role of a guardian and administrator and her right to revoke any enduring power of attorney. He concluded his report with the observation that it would be worthwhile to assess Eunice’s cognition in more detail, review the neuroimaging and to obtain results of her initial assessments.
Dr Mocellin provided a report to Dr Heineke dated 16 October 2017. Dr Mocellin reported that for the larger part of his assessment he saw Eunice alone but also spoke, with her consent, to Lisa and Ms Karr. He had no access to previous medical assessments apart from that provided by Professor Singh dated 27 July 2017. Eunice had explained to him in a consistent and unprompted manner that she had been distressed while residing in the Helping Hand ACF but her mood and functioning had improved upon her move to Victoria Grove. She also explained her concerns about Julie in similar terms to those reported by Professor Singh.
Dr Mocellin also administered the MMSE assessment with Eunice recording a score of 28 out of 30. In his opinion Eunice was able to clearly describe the role of a holder of power of attorney and how a power could be made or revoked. In his opinion Eunice had capacity to appoint or change her power of attorney and had full testamentary capacity while also recognising that she may need to seek legal advice. He also considered, with the information available to him, that she has capacity to make decisions about where she resides, including the making of a decision to move from one facility to another. Her capacity was not impaired by any psychiatric or neurological disorder.
Dr Mocellin also expressed the opinion that Eunice’s current cognitive profile was not, in his opinion, consistent with a diagnosis of AD. However, he acknowledged that this was based on his cross-sectional assessment and in the absence of other information and investigations. He agreed with Professor Singh that a diagnosis of AD in 2008 would usually result in progressive deterioration in cognition and function beyond Eunice’s current level.
The lay evidence
Gary has deposed at length about the differences between him and his sister Julie concerning the care and accommodation arrangements for their parents. While he has referred to discussions with Eunice (and also Lincoln) concerning the living and financial arrangements he has not directly referred to his observations about Eunice’s cognitive capacity.
Ms Karr has also sworn an affidavit in which she reports her observations about Eunice. She has contended that she had experience with persons suffering from AD during her work as a home support care worker. She has stated that Eunice suffers some restrictions in relation to her speech and movement that can give the impression that she is suffering from physical and mental disability. She has spent extended periods of time with Eunice providing support and services and has engaged in many discussions on many subjects and issues. In her opinion, while Eunice may at times have limitations in her physical ability to express herself, she does not hold any doubt that Eunice is currently able to understand what is being said to her and can express her needs, desires or preferences about her support and care needs and matters concerning her personal affairs.

A further affidavit has been provided by Vernon Johnson. He has been a close personal friend of Lincoln and Eunice for over 60 years. Based on the discussions that he and his wife, Margaret, had with Eunice in November 2017, he has observed that her memory is good, she recalls recent and past events, and is aware of her present circumstances and surroundings. Mrs Johnson has deposed that she agrees with her husband’s observations about Eunice.
Julie has deposed that until recently she had a very close relationship with her mother. However, she believes that a change in Eunice’s personality caused by AD is at least partly responsible for a change in the nature of their relationship. She has also stated that following the diagnosis of AD in 2009 that disease, and the advancing years, have taken their toll upon Eunice. In support of that contention Julie exhibited to her affidavit copies of photos taken at Eunice’s 80^th birthday in 2013 and a further photograph taken in August 2017 shortly prior to the making of the affidavit.
Even allowing for the fact that in the earlier photograph Eunice’s hair appears to have been professionally styled and coloured and she was probably wearing make-up, I consider the difference in her appearance in the two photographs to be striking given that only four years elapsed between the two images. Nevertheless, while the two photographs suggest substantial and rapid physical change, they provide no assistance in determining Eunice’s capacity to engage in litigation.
In a further affidavit dated 7 November 2017, Julie has stated that for some time after Eunice was diagnosed with AD in April 2009 she showed insight into that diagnosis and was able to manage her affairs with assistance. However, over time her ability to manage her affairs with assistance has deteriorated. In support of that contention Julie has referred to some of the medical reports summarised above. Julie has also alleged that her mother is behaving out of character and has become isolated from friends and family. She further alleges that since the commencement of these proceedings Eunice has had very little contact with members of her family apart from Gary and his immediate family.
Bernard Holding, a friend of Lincoln and Eunice for more than 50 years, has deposed that when he visited Lincoln in hospital early in 2017 he was shocked by Eunice’s appearance as she had lost a lot of weight and looked dishevelled. He also considered that Eunice seemed very disoriented and seemed to struggle to maintain a conversation.
Michele Holding, the wife of Bernard Holding, also deposed to her observations about Eunice. She stated that for the first few years after the diagnosis of AD Eunice seemed to have insight into that condition. However, in recent years she had become socially withdrawn. Her attendance at bridge had become less frequent and she sometimes looked quite dishevelled, which was very uncharacteristic. In the last few years she found it difficult to maintain a conversation with Eunice even though they had previously talked at length. Eunice would sometimes telephone her at odd times or would call but not speak. Mrs Holding also deposed that Eunice had become suspicious of Julie in the previous two or three years and had expressed the view to the deponent that Julie was trying to control everything, including her and Lincoln’s finances.
Lincoln also swore an affidavit dated 10 November 2017. He deposed that Eunice had changed in recent years and her health had declined. He was now very worried about her and the influence that Gary may have over her.
Consideration
Test to be applied
In Dalle-Molle v Manos Debelle J summarised the principles to be applied when determining whether a person has capacity to prosecute, defend or compromise proceedings as follows: [43]
The level of understanding of legal proceedings must, I think, be greater than the mental competence to understand in broad terms what is involved in the decision to prosecute, defend or compromise those proceedings. The person must be able to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which of course is but one of the possible outcomes.
[43] (2004) 88 SASR 193 at [26].
Debelle J also noted in Dalle-Molle that the level of understanding required must relate to the “facts and the subject matter of the particular case” as legal proceedings vary in complexity. [44] Accordingly, Debelle J stated that “the question whether the person has the capacity to give sufficient instructions must be examined against the facts and subject matter of the particular litigation and the issues involved in that litigation”.[45] I respectfully adopt the views expressed by Debelle J.
[44] Ibid at [23].
[45] Ibid. More detailed observations to the same effect were made in Slaveski v Victoria (2009) 25 VR 160 by Kyrou J of the Supreme Court of Victoria.
It is presumed that a person of full age is capable of managing their own affairs, including the management of litigation to which they are a party.[46] A person who alleges that another lacks capacity bears the onus of proof.[47] Thus, the onus lies on Julie to establish that Eunice is under a disability within the meaning of r 78 and that a litigation guardian ought to be appointed by the Court under r 79(3).
[46] Murphy v Doman (2003) 58 NSWLR 51 at [36], Handley JA; Slaveski v Victoria (2009) 25 VR 160 at [25], Kyrou J.
[47] Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398 at [66], Edmonds J; Slaveski v Victoria (2009) 25 VR 160 at [25], Kyrou J.
In Manning v Russell, Nicholson J considered the principles to be applied where a party to litigation believes that another party is “a person under a disability” within the meaning of rr 78 and 79 of the Rules.[48] His Honour held that the correct procedure is to apply for an inquiry to be conducted by the Court.[49] His Honour also approved of the finding of Judge Lunn, a Master of this Court, in Atkins v Atkins to the effect that where it is unclear whether a party is under a disability the Court may order an inquiry to be conducted.[50] Such an inquiry is normally conducted by a Master who can compel the attendance of witnesses (including medical attendants and the plaintiff or defendant) and the production of documents.[51] However, Judge Lunn did not consider whether the Court could compel a party to be medically examined for the purpose of such an inquiry.
[48] (2015) 123 SASR 135.
[49] Ibid at [15].
[50] [2011] SASC 85 at [10]. I note that Judge Withers, also a former Master of this Court, followed Atkins v Atkins in Hollidge v Pomeroy [2014] SASC 45 at [16]-[17].
[51] [2011] SASC 85 at [9]-[10].
Nicholson J also held in Manning v Russell that it cannot be the case that such an inquiry should be held merely upon the request of another party.[52] His Honour held that before ordering an inquiry he needed to be persuaded by the defendant that there was a real apprehension that the plaintiff may be a person under a disability.[53] After assessing the evidence and the issues involved in the proceedings, Nicholson J concluded that the plaintiff may lack sufficient capacity to conduct proceedings as a litigant in person but not necessarily as a represented litigant. His Honour took into account the fact that the plaintiff was represented by experienced counsel who was confident in the capacity of his client to give instructions and who was prepared to take and rely on those instructions. His Honour also accepted that the plaintiff’s counsel was aware of r 78 but had not sought the assistance of the Court in that respect and was actively resisting the application made by the defendant for the appointment of a litigation guardian. Ultimately, his Honour found that he was not persuaded that he should hold a real apprehension that the plaintiff may be a person under a disability.
[52] (2015) 123 SASR 135 at [16].
[53] Ibid at [20].
In M v L Hinton J adopted the reasoning of Nicholson J in Manning v Russell concerning the test to be applied when determining whether an inquiry should be conducted.[54] After considering the medical and lay evidence, and the fact that counsel had not reported any difficulty to the Court in the discharge of his professional duties on behalf of the plaintiff, Hinton J held that as the proceedings were not particularly complex there was no reason to conduct an inquiry to determine whether the plaintiff was under a disability.
[54] [2017] SASC 39 at [31].
I agree with the view expressed by Nicholson J and adopted by Hinton J that the test to be applied in determining whether an inquiry should be conducted is whether the judge has been persuaded that they should hold a real apprehension that a person is under a disability as defined in r 4.
Evidence relating to disability
Some of the evidence refers to a progressive deterioration in Eunice’s physical health and condition over recent years, e.g. she walks with a stick, has lost much weight, her appearance has changed and she exhibits dyskinesia and choreiform type movements. While the chapeau to paragraph (c) of the definition of “disability” in r 4 refers to physical or mental ability, the physical disabilities referred to in the evidence do not suggest any possible adverse effect on Eunice’s understanding or decision making.
The lay witnesses have expressed differing views about Eunice’s mental ability. Their opinions do not directly address the question of capacity to engage in litigation and little or no information has been provided about their expertise in assessing capacity, particularly in the present context. Accordingly, the evidence provided by the lay witnesses gives little direct assistance in determining whether the Master had proper grounds for holding a real apprehension that Eunice may be under a disability. However, the lay evidence, like the medical evidence, does reveal a division of opinion about Eunice’s capacity.
Senior counsel for Eunice firmly submitted that very substantial weight should be placed upon his opinion that Eunice does not lack capacity to instruct him properly about the issues that will arise in these proceedings. Hinton J touched upon the weight that should be attached to the views of counsel in M v L.[55] His Honour stated “I accept that this factor does not carry the day, but it attracts some weight”.[56] His Honour’s view is essentially the same as that I tentatively expressed in the course of hearing submissions. I consider the approach adopted by Hinton J to be correct and will take the same approach.
[55] Ibid at [47].
[56] Ibid.
I have the utmost respect for the integrity and judgment of senior counsel for Eunice. I have no doubt that after carefully reflecting on the matter he honestly believes that Eunice understands the consequences of engaging in this litigation and is fully capable of providing him with the necessary instructions. I also note that senior counsel practices extensively in testamentary matters where not dissimilar issues frequently arise about the capacity of testators. Nevertheless, while the views of senior counsel must be given considerable respect, I consider that greater weight should be given to the medical evidence, to which I now turn.
As I have already noted, at no point in her many reports has Dr Short actually confirmed a diagnosis of AD although she has clearly worked for some years on the premise that Eunice has AD. Both Professor Singh and Dr Mocellin have expressed doubt about the diagnosis of AD on the basis that if this condition had been present for as long as suggested they would have expected a greater deterioration in Eunice’s condition.
Support for the views held by Professor Singh and Dr Mocellin is provided by the finding of Dr Patel that the MRI findings were not highly suggestive of AD although that was a possibility. Dr Patel also noted other possible causes of Eunice’s suggested condition.
The reports of Professor Singh, Dr Mocellin and Dr Patel, combined with the lack of a positive diagnosis by Dr Short, raise a real doubt as to whether Eunice actually suffers from AD. However, the fact that a person does not have AD will not, of itself, establish that they are not under a disability. While AD may be the cause of dementia best known to the public, there are many other conditions that can result in a loss of cognitive capacity and memory of such significance that the sufferer is under a disability for the purposes of the Rules.
On the other hand, the fact that a person suffers from AD does not, of itself, establish an inability to make necessary decisions about legal proceedings. Whether or not an AD sufferer requires the appointment of a litigation guardian will depend upon the state of progression of the disease, the complexity of the issues that may arise in the proceedings and whether or not they are legally represented.
The issue to be decided by the Master was not the precise diagnostic label that should be applied to Eunice but whether the evidence provides a proper basis for holding a real apprehension that she is under a disability. The medical evidence concerning that central issue is not consistent.
While Eunice has consulted Dr Short from 2009 until at least 2017, I attach less weight to the many reports written by Dr Short than I do to the single report prepared by Dr Whelan. My primary reason for doing so arises from the third affidavit dated 21 November 2017 sworn by Mr Brendan Murray, the solicitor for Eunice and Gary. While the views attributed to Dr Short by Mr Murray are hearsay, this is an interlocutory matter, and I am entitled to act on hearsay.[57]
[57] Supreme Court Civil Rules 2006 (SA), r 162(2), see also Re O’Brien: Ex Parte Allchurch [1923] SASR 411.
Mr Murray summarised a telephone conference that he had conducted with Dr Short. He stated that Dr Short had informed him that as a treating neurologist she would not routinely conduct formal testing for capacity, including testamentary capacity. She administers the MMSE as a screening tool for cognitive impairment as part of, and in aid of, her treatment of patients but does not ordinarily conduct any more formal tests. In a case where a patient’s capacity is not “clearly obvious” or “plainly obvious”, her practice would be to refer the patient to a neuropsychologist for formal testing. She followed this practice by referring Eunice to Dr Whelan for assessment.
The comments made by Dr Short to Mr Murray are consistent with her observation in a report prepared in April 2017 that she did not know whether Eunice retained testamentary capacity and had accordingly referred her to Dr Whelan, a clinical neuropsychologist, for assessment.
There are further considerations that diminish the weight to be attached to Dr Short’s reports. While Dr Short regularly administered the MMSE test to Eunice, and sometimes the MOCA test, she has not indicated the significance of scores recorded under either test for the purpose of the Court determining whether Eunice has a disability. That is consistent with her use of screening tests for the purposes of treating her patients rather than as an element of a medico-legal assessment. The apparent purpose of Dr Short’s reports was to inform Eunice’s GP about her ongoing condition rather than to assist the Court.
I attach less weight to the views of Dr Campbell than those of other professionals. I do so for two reasons. First, he has simply stated an opinion without explaining the basis upon which he holds that view. Secondly, Dr Campbell is a general practitioner and his view must be accorded less weight than that of specialist medical practitioners and specialist psychologists who have conducted detailed consultations and administered objective tests.
While Dr Whelan did not directly address the question whether Eunice was mentally able to make rational decisions about taking, defending or settling proceedings, her observations about other aspects of Eunice’s cognitive capacity suggest she may be under a disability. Dr Whelan stated that Eunice has a mental incapacity due to dementia and was unable to make an informed decision about where she lives. She also lacked, in Dr Whelan’s opinion, the mental capacity to make complex decisions about her finances and did not have mental capacity to change her enduring power of attorney. Dr Whelan also strongly suspected that Eunice did not have the mental capacity to change her will. I consider the report of Dr Whelan to be significant evidence that Eunice may be under a disability within the meaning of r 4.
The reports of Professor Singh and Dr Mocellin both suggest that Eunice is not under a disability. However, Professor Singh did not have access to any of the many psychological and medical reports previously prepared about Eunice while Dr Mocellin only had access to Professor Singh’s report. Professor Singh specifically noted that his assessment was limited by its cross-sectional nature, the absence of additional corroborative history and access to previous assessments. Consistently with Professor Singh’s observation, Dr Mocellin noted that the availability of previous reports would be crucial in carrying out his recommendation for further review of Eunice’s condition. Those observations by Professor Singh and Dr Mocellin lessen the weight that might otherwise be attached to their reports. I also hold a concern as to why it was thought necessary for Eunice to undergo assessment in Melbourne without the benefit of the earlier reports. That odd feature of this case has not been adequately explained.
Although I hold significant reservations as to the weight that should be attached to the reports of Dr Mocellin and Professor Singh, and noting also that they were not asked to address directly whether Eunice is under a disability as defined in r 4, the clear effect of their reports is to suggest that it is unlikely. On the other hand, as I have already noted, the report of Dr Whelan provides significant evidence suggesting that Eunice may be under a disability.
Given the divergent views of the experts, I consider that the evidence clearly supported the conclusion of the Master that an inquiry should be conducted to determine whether or not Eunice is under a disability and whether a litigation guardian should be appointed for the purpose of these proceedings. In other words, the information before the Master provided a sufficient basis for him to hold a real apprehension that Eunice is a person under a disability.
The further issue to be decided by the Master was how the inquiry should be conducted. Two possible approaches appear to have been reasonably available. One approach might have been to allow the parties to identify the medical reports upon which they intended to rely. Those experts might then have been called to give evidence in the ordinary way. After hearing that evidence, the Master could have decided the matter. The alternative approach was that adopted by the Master, i.e. obtain a report from an appropriate expert who was acceptable to the parties. In my view, the Master had a judicial discretion as to which approach he adopted. When deciding an appeal from his Honour’s decision, I must apply the principles of appellate restraint stated by the High Court in House v The King.[58]It is not enough that I might have made a different decision. The question is whether there was any error in his Honour’s decision-making process or, alternatively, was the outcome unjust. I will proceed on that basis.
[58] (1936) 55 CLR 499 at 504-505, Dixon, Evatt and McTiernan JJ.
Operation of the Rules
While the Court has power to conduct an inquiry as to whether a litigation guardian should be appointed for Eunice, the more difficult issue is whether the Master had any power to order Eunice to subject herself to medical examination for the purposes of that inquiry.

This is a convenient point to note that I hold very strong reservations about the correctness of the submission made on behalf of Julie that the making of an order directing medical examination is supported by the Court’s inherent power to supervise practitioners. The issue was not fully developed in argument and this case can be decided on other grounds. Accordingly, the question is best left to be decided in a case where an issue as to the conduct of a practitioner and the cognitive capacity of their client truly arises and cannot otherwise be resolved. I am satisfied that there is no issue about the conduct of the practitioners involved in this case.
While I consider that the inherent powers of Court were available to the Master, there is a potential question as to whether his Honour’s discretion miscarried. In other words, is it the case that because Julie did not make use of the process provided by r 153 the Master should have exercised his discretion not to make an order under the inherent powers.
If Julie had made a request under r 153 for Eunice to undergo medical examination and she failed to comply, Julie could have applied to the Court under r 154 for a stay of the proceedings. If such a request were to be made, and that possibility remains open, it would be necessary to decide whether the evidence and circumstances supported the grant of a stay of the proceedings in so far as Eunice is concerned.
Gary is the second plaintiff in this action. There is nothing before the Court that in any way suggests that he may lack capacity to engage in litigation. Even if the proceedings were to be stayed in so far as Eunice is involved, that would not prevent Gary continuing the action. However, he has a subsidiary role in the proceedings. It is clear that the object of the proceedings is, as senior counsel expressed it in his written submissions, for Eunice “to regain control of her life”. For that reason, and because a real apprehension has arisen that Eunice may be under a disability, I consider that the discretion of the Master did not miscarry on account of his failure to stay the action commenced by Eunice. Granting a stay or proceeding with an inquiry into Eunice’s capacity were both decisions within the bounds of his Honour’s discretion.
The history of the lunacy jurisdiction
Senior Counsel for Eunice submits that the only cases where the existence of an inherent power to compel medical examination has been accepted have been decided in the lunacy jurisdiction. Any such power is not available outside this jurisdiction. That submission requires me to consider the source and extent of the powers available in both the lunacy jurisdiction and in the parens patriae jurisdiction.
The jurisdiction exercised by the Court of Chancery and by the Lord Chancellor fell into three distinct classes. These were the common law jurisdiction, the equitable jurisdiction and the miscellaneous jurisdiction.[95] The jurisdiction to enquire as to whether a person was of unsound mind (i.e. a lunatic or idiot) was an element of the common law jurisdiction of the Court of Chancery.[96] During the period Lord Eldon served as Lord Chancellor during the early nineteenth century,[97] the jurisdiction over lunatics and idiots was extended to persons who had lost their mental powers due to disease or age.[98]
[95] Sir William Holdsworth KC, A History of English Law (Metheun & Co Ltd, London, 7^th edn, 1956) vol 5 at 446; Tavitian v Commissioner of Highways [2010] SASC 206 at [30], Kourakis CJ.
[96] Ibid at 474-475.
[97] Lord Eldon served as Lord Chancellor from 1801 to 1806 and 1807 to 1827, see The Editors of Encyclopaedia Britannica, Encyclopeadia Brittanica online (31 May 2018) < Sir Henry Studdy Theobold KC MA, The Law Relating to Lunacy (Stevens and Sons, Limited, 1924) at 5.
The Court of Chancery conducted an inquisition in its common law jurisdiction to determine whether a person was of unsound mind. Jurisdiction over the property of a person found to be of unsound mind was vested personally in each successive Lord Chancellor by way of an instrument of delegation executed by the Sovereign under the Sign Manual.[99] The instrument was renewed upon the demise of the Crown.[100] Upon a person being found of unsound mind by inquisition conducted by the Court in its common law jurisdiction, the Chancellor exercised the power delegated by the sovereign to appoint a committee to manage the estate of the protected person. The actions of the committee were subject to the oversight of the Chancellor as delegate of the Sovereign.[101] The guiding principle was the best interests of the protected person.[102] Over the course of the nineteenth century certain other Judges and Masters were authorised by revision of the instrument issued by the Sovereign and by legislation to exercise the power personally conferred upon the Lord Chancellor by the Sovereign.[103]
[99] Sir William Holdsworth KC, A History of English Law (Metheun & Co Ltd, London, 7th edn, 1956) vol 5 at 475; Ibid at 10-16.
[100] Sir Henry Studdy Theobald KC MA, The Law Relating to Lunacy (Stevens and Sons, Limited, 1924) at 15.
[101] Sir William Holdsworth KC, A History of English Law (Metheun & Co Ltd, London, 7^th edn, 1956) vol 5 at 475-476.
[102] Ibid at 476.
[103] Ibid at 476; Sir Henry Studdy Theobald KC MA, The Law Relating to Lunacy (Stevens and Sons, Limited, 1924) at 12 and 16.
Section 17(1) of the Supreme Court Act 1935 (SA) provides that the Supreme Court of South Australia shall be a court of law and equity. Section 17(2)(a)(i) provides that there shall be vested in the Court the like jurisdiction as was formerly invested in or capable of being exercised by the High Court of Chancery, both as a common law court and as a court of equity.
The reference to the common law powers of the Court of Chancery would clearly include the power to inquire as to whether a person is of unsound mind. The power of inquiry extended to the making of an order requiring a person to undergo medical examination.[104]
[104] Re Anon, An Alleged Lunatic (1881) 18 Ch D 26; Re B (An Alleged Lunatic) [1892] 3 Ch 194.
Orders to compel medical examination
In Re WM the Full Court of the Supreme Court of New South Wales held that the Court had jurisdiction to compel an alleged lunatic to submit to medical examination.[105] The issue was whether the subject of the proceedings lacked capacity to assign his interest in a deceased estate to trustees. Family members applied for a declaration that the subject was of unsound mind and sought the appointment of a committee to manage his estate.[106] Other family members refused to permit the subject to be medically examined.
[105] (1903) 3 SR (NSW) 552 at 567-568, Owen J, Walker and Pring agreeing.
[106] A committee appointed by the Court exercised powers over the affairs of lunatics and mental defectives that were broadly similar to the powers now exercisable by guardians and administrators appointed under the Guardianship and Administration Act 1993 (SA).
After examining the history of the lunacy jurisdiction, Owen J (with Walker and Pring JJ agreeing) held that the Supreme Court held the same powers as the former Court of Chancery in England under the “old mode of enquiry by commission de lunatico inquirendo”.[107] That power extended to the making of orders to compel medical examination to determine whether the subject was a lunatic. The jurisdiction held by the Court of Chancery had been conferred upon the Supreme Court of New South Wales when it was created in 1828 and had not been impliedly removed by the subsequent enactment of the Lunacy Act 1878 (NSW).
[107] Re WM (1903) 3 SR (NSW) 552 at 567.
In Re Magavalis McPherson J of the Supreme Court of Queensland considered a petition seeking the appointment of a committee to manage the estate of the respondent.[108] It was alleged that the respondent suffered from senile dementia, was unable to manage his own affairs and was at risk of undue influence in respect of his estate. There was conflicting medical evidence concerning the capacity of the respondent.
[108] [1983] 1 Qd R 59.
McPherson J traced the history of the jurisdiction over lunatics. After examining the Rules of the Supreme Court of Queensland and the Mental Health Act 1974 (Qld) McPherson J held that he was “satisfied that the Court continues to possess at least certain of the jurisdiction and powers formerly exercisable in lunacy by the Lord Chancellor”.[109] McPherson J referred to nineteenth century English cases where it had been held that the Lord Chancellor had an independent power to direct an examination notwithstanding that the lunacy jurisdiction was regulated by statute.[110] His Honour also referred to Re WM. In that light McPherson J held that the Court had a general power to order an examination so as to provide evidence to assist the Court in determining whether a committee should be appointed to manage the estate of the respondent.
[109] Ibid at 62.
[110] Re Anon, An Alleged Lunatic (1881) 18 Ch D 26; Re B (An Alleged Lunatic) [1892] 3 Ch 194.
It is clear from the decision of the Full Court of the Supreme Court of New South Wales in Re WM, the decision of McPherson J in Re Magavalis and the discussion by Sir Henry Theobald in The Law Relating to Lunacy, that at least when exercising its lunacy jurisdiction, a Supreme Court has an inherent power to order that a person be independently examined to determine their mental capacity.
That is unsurprising. The lunacy jurisdiction empowers a court to exercise extensive powers over the affairs of a person of unsound mind. For that reason, and also because of the behavioural disturbance associated with mental illness, the subject of a proposed order may be unwilling to co-operate with a medical assessment. Thus, the power to compel examination was a necessary incident of the common law jurisdiction exercised by the Court of Chancery. A medical assessment conducted under the supervision of the Court protected both the alleged lunatic and those who may be adversely affected by his or her behaviour.
The question is whether the power to order a medical examination is only available where the purpose of the inquiry is to decide whether the person should be brought under the protective powers of the Court relating to lunatics or whether the power extends to any case where there is a serious question as to whether the protective powers of the Court ought to be exercised.
Orders to compel medical examination outside the lunacy jurisdiction
Senior counsel for Eunice has submitted that the finding in Re WM and also in Re Magavalis that a Supreme Court has power to order a person to submit to medical examination must be confined to the lunacy jurisdiction. However, I note that the contrary view was adopted in Morrison v Hanby Pty Ltd,[111] Goddard‑Elliott and, most recently, in M v L.
[111] [2000] SASC 135.
I have already referred to Goddard‑Elliott and M v L. Before discussing Morrison v Hanby I will refer to the judgment of the Full Court of the Federal Court in L v Human Rights and Equal Opportunity Commission.[112]The issue in that appeal was the appointment of a litigation guardian. The Full Court, comprising Black CJ, Moore and Finkelstein JJ, noted that the purpose of the appointment of a litigation guardian was to protect plaintiffs and defendants who would otherwise be at a disadvantage and also to protect the processes of the Court.[113]
[112] (2006) 233 ALR 432.
[113] Ibid at [25]; Masterman_Lister v Brutton and Co (Nos 1 and 2) [2003] 1 WLR 1511 at [31], Kennedy LJ and [65], Chadwick LJ.
The Full Court noted that in almost every case the Court would need medical evidence to assist it in determining whether a person was under an incapacity. However, where a party refuses to submit to a medical examination, and also in cases where the lack of capacity is so clear that medical evidence is not required, the Court may rely on its own observation to assess the capacity of a party. There was no suggestion by the Full Court that the Federal Court had an inherent power to compel medical examination. However, it does not appear that any party submitted that the Court could compel examination.
Lander J in Morrison v Hanby Pty Ltd considered an application for an order that the plaintiff submit himself for examination by a medical practitioner. The subject matter of the proceedings is not stated in what were apparently ex tempore reasons. The defendants submitted that there was cogent evidence to suggest that the plaintiff was physically unwell and also evidence that he was suffering from mild dementia. The defendants submitted that they were entitled to have the plaintiff examined for the purpose of determining whether he was able to give proper instructions to his legal representatives and for the purpose of determining whether or not he would be able to give evidence in a trial which was to start very shortly.
Lander J held that he was not satisfied, on state of the pleadings as they then stood, that the plaintiff’s medical condition was in issue. His Honour also held that he was not satisfied that he had jurisdiction to make an order under r 61 of the Supreme Court Rules 1987 (SA).[114] However, his Honour also stated that he assumed that he had power under the inherent jurisdiction of the Court to require the plaintiff to be medically examined but the use of that power would be limited to the determination of the fact in issue, namely the plaintiff’s medical condition. His Honour further held that if the pleadings were amended so that the plaintiff’s medical condition became an issue in the trial then he would have power to order the plaintiff to be medically examined. On the basis that a foreshadowed amendment to the pleadings was likely to be approved, Lander J ordered the plaintiff to undergo medical examination. Lander J did not cite any authority in support of his conclusion that the inherent power authorised the making of such an order. However, his Honour’s conclusion is consistent with that of Bell J in Goddard‑Elliott and the observations of Hinton J in M v L.
[114] Rule 61.02(1) was to the same effect as r 153 of the Rules.
Does the parens patriae jurisdiction extend to compulsory medical examination?
In Children, Youth & Women’s Health Services Inc v YJL White J described the parens patriae jurisdiction as “a long-standing jurisdiction of this Court which can be exercised to protect the person and property of those citizens of this State who are unable to look after themselves.”[115] As I have noted at [134], the parens patriae jurisdiction may be regarded is part of the inherent jurisdiction of the Court in the wider sense.[116] That jurisdiction was formerly exercised by the Court of Chancery.
[115] (2010) 107 SASR 343 at [30].
[116] Re H, AE (2012) 113 SASR 560 at [23]-[29], Gray J; MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231 at [31], O’Keefe J.
The operation of the parens patriae jurisdiction was considered by the High Court in Secretary Department of Health and Community Services v JWB and SMB (‘Marion’s case’).[117]In a joint judgment Mason CJ, Dawson, Toohey and Gaudron JJ observed that:[118]
[117] (1992) 175 CLR 218 at 258.
[118] Ibid.
In Wellesley v. Duke of Beaufort, Lord Eldon L.C., speaking with reference to the jurisdiction of the Court of Chancery, said:
"[It] belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them."
When that case was taken on appeal to the House of Lords, Lord Redesdale noted:
"Lord Somers resembled the jurisdiction over infants, to the care which the Court takes with respect to lunatics, and supposed that the jurisdiction devolved on the Crown, in the same way."
Lord Redesdale went on to say that the jurisdiction extended "as far as is necessary for protection and education".
To the same effect were the comments of Lord Manners who stated that "[i]t is ... impossible to say what are the limits of that jurisdiction". The more contemporary descriptions of the parens patriae jurisdiction over infants invariably accept that in theory there is no limitation upon the jurisdiction. That is not to deny that the jurisdiction must be exercised in accordance with principle.
(Footnotes omitted)
Mason CJ, Dawson, Toohey and Gaudron JJ[119] referred with approval to the history of the parens patriae jurisdiction set out in the judgment of La Forest J of the Supreme Court of Canada in Re Eve.[120]Much of the history referred to by La Forest J in Re Eve was apparently drawn from the commentary of Sir Henry Theobald in The Law Relating to Lunacy.
[119] Ibid.
[120] [1986] 2 RCS 388 at 407-411.
The appeal in Re Eve concerned the jurisdiction of the Supreme Court of Prince Edward Island. The question was whether the parens patriae jurisdiction or the wardship jurisdiction over children extended to the making of an order requiring the sterilisation of Eve, a 24 year old woman with a mild to moderate intellectual impairment. The application had been brought by Eve’s mother. The purpose of the proposed sterilisation was both menstrual management and contraception. In that respect the factual issues were very similar to those considered by the High Court in Marion’s Case, although Marion was a juvenile and Eve was an adult.
La Forest J traced the history of the relevant Provincial legislation from 1848 and concluded that the Supreme Court of Prince Edward Island has the same parens patriae jurisdiction as was vested in the Lord Chancellor in England and exercised by the Court of Chancery. For the reasons given at [168] above, this Court also stands in the same position.
La Forest J found that “it seems clear that the parens patriae jurisdiction was never limited solely to the management and care of the estate of the mentally retarded or defective persons”.[121] His Lordship agreed with an observation by Sir Henry Theobald in The Law Relating to Lunacy that the Crown’s prerogative “has never been limited by definition”. La Forest J pointed out that “[t]he Crown has an inherent jurisdiction to do what is for the benefit of the incompetent. Its limits (or scope) have not, and cannot, be defined.”[122]
[121] Ibid at 409.
[122] Ibid at 410.
La Forest J noted that some at time after the Court of Wards was abolished in 1660, the Court of Chancery continued to exercise the wardship jurisdiction as part of its parens patriae jurisdiction. In time, wardship became substantially and procedurally assimilated to the parens patriae jurisdiction and became purely protective in nature. Wardship was merely a device by means of which the Chancery exercised its parens patriae jurisdiction over children. His Lordship observed that because of this history the wardship cases constituted a solid guide to the exercise of the parens patriae power even in the case of adults. For that reason, his Lordship observed it was unnecessary to resort to a statute such as the Mental Health Act to permit a court to exercise jurisdiction in respect of adults. However, La Forest J observed that there must be proof of incompetence.
La Forest J stated the requirement for proof of incompetence in the case of adults marked the difference between wardship over children and the parens patriae jurisdiction over adults. Chancery did not have an inherent jurisdiction to make mentally incompetent adults its wards. However, because the Lord Chancellor had been granted the power to exercise the parens patriae jurisdiction of the Crown for the protection of persons found to be mentally incompetent by inquisition, the difference between the wardship and parens patriae procedures was of no importance.

La Forest J further stated that because the historic focus of the law respecting the mentally incompetent had been focused almost exclusively on their estates, the law on guardianship of their persons was “pitiably unclear with respect to some basic issues”.[123]
[123] Citing Paul McLaughlin, Guardianship of the Person (National Institute of Mental Retardation, 1979) at 35.
After noting the description of the parens patriae jurisdiction by Lord Eldon LC in Wellesley v Duke of Beaufort[124] La Forest J then referred to the observations made by Lord Redesdale on appeal to the House of Lords in Wellesley v Wellesley.[125] In that case his Lordship had noted that “Lord Somers resembled[126] the jurisdiction over infants, to the care to which the Court takes with respect to lunatics, and supposed that the jurisdiction devolved on the Crown, in the same way”.[127] Lord Redesdale had further stated that the jurisdiction extended “as far as is necessary for protection and education”.[128]
[124] (1827) 2 Russ 1.
[125] (1828) 2 Bli NS 124.
[126] In this context I understand the word “resembled” to have a meaning akin to “compared”.
[127] (1828) 2 Bli NS 124 at 131.
[128] Ibid at 136.
La Forest J held that even where there is legislation, the courts will continue to use the parens patriae jurisdiction to deal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit.[129]
[129] Re Eve [1986] 2 RCS 388 at 411.
La Forest J stated that it seemed clear from Wellesley v Wellesley that the situations in which the courts can act where it is necessary to do so for the protection of mental incompetents and children have never been, and indeed cannot be, defined.[130]
[130] Ibid.
Discussion
The discussion by La Forest J in Re Eve makes clear that the powers available in the parens patriae jurisdiction were also available in wardship and lunacy cases. His Lordship also observed that the parens patriae jurisdiction was not restricted to the management of the estate of a person needing protection. The parens patriae jurisdiction may be utilised as necessary to protect those who fall within its ambit. The clear tenor of the observations by La Forest J is that the powers available in the parens patriae jurisdiction are very broad. The observations of Sir Henry Theobald and the result in Marion’s case both serve to reinforce that conclusion.
It might possibly be contended that although the powers available under the parens patriae jurisdiction may be utilised as necessary to protect those who fall within the ambit of that jurisdiction, this does not establish that the power extends to the making of an order requiring a person to undergo medical examination for the purpose of determining whether they are in need of the protection of the Court. Support for that argument might be drawn from the fact that the power to compel medical examination arose in the common law jurisdiction of the Court of Chancery and not in its equitable jurisdiction.
In other words, it might be suggested that although the powers available once a person is found to require protection are very broad that does not establish that the powers available at the preliminary point when inquiry is made as to whether or not a person needs protection are equally broad. I reject any such contention for two reasons.
First, La Forest J found in Re Eve that the powers available in the parens patriae jurisdiction are also available in the lunacy jurisdiction. I see no reason why the reverse proposition does not also apply so that the powers available in the lunacy jurisdiction extend to the parens patriae jurisdiction.
Secondly, and more importantly, it would frustrate the protective purpose of the parens patriae jurisdiction, and the use of the very wide powers available within that jurisdiction, if the Court did not have available to it all such power as may be necessary to assist it to determine the preliminary question of whether a person is in need of protection. To put the matter simply, it makes no sense to have wide powers available to protect a person if a broad investigative power is not available to determine in the first place whether the person needs protection. That supports the view I have expressed in the preceding paragraph.
I therefore consider that Goddard-Elliott was correctly decided and the obiter view expressed by Hinton J in M v L was also correct in so far as his Honour referred to the making of an order in the parens patriae jurisdiction. I find that the Court does have power to order Eunice to undergo medical examination for the purpose of providing evidence to assist in the inquiry as to whether a litigation guardian should be appointed to conduct the proceedings that she has instituted.
If Eunice fails to undergo the examination ordered by the Master she may place herself in contempt of the Court. While I regard the potential that the Court might be called upon to deal with contempt proceedings against an elderly person in the circumstances of this case to be particularly unattractive, that concern does not derogate from the fact that the Master had power to make the order.
While I have found that the Master had power to make the order, Eunice complains that his Honour failed to take account of the fact that the direction that she undergo medical examination was invasive of her privacy and freedom and a disproportionate response to the proceedings. While the Master did not expressly refer to those issues, he identified several considerations arising from the competing medical evidence and the significance of the litigation that, in his view, supported the need for an inquiry. One might possibly infer that his Honour took the view that those matters outweighed the contrary considerations of privacy and the like. Even if the Master did make a process error by failing to weigh up the competing considerations (or failing to state in his ex tempore reasons that he had done so), I do not consider that there was an outcome error. The considerations to which the Master referred provided a sound foundation for his decision.
I reject the submission that the Master failed to consider properly the potentially tactical basis for the request that Eunice be medically examined. His Honour specifically referred to that question before going on to discuss his reasons for concluding that an examination was required. I am satisfied that the Master was weighing up the competing considerations. Moreover, the weight attached to a particular consideration does not, of itself, provide a basis to impugn a decision.[131]
[131] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68]-[75], Hayne, Kiefel and Bell JJ; R v Lutze (2014) 121 SASR 144 at [47], Vanstone and Parker JJ.
Conclusion
I find that the appeal is competent.
The order made by the Master requiring the first plaintiff, Eunice Washington, to undergo a psychological examination for the purpose of providing evidence for use in an inquiry to determine whether a litigation guardian should be appointed was supported by the parens patriae jurisdiction and the inherent jurisdiction of this Court. The appeal is dismissed.