Washington v Washington

Case [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

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Washington v Washington [2018] SASC 102
Case
[2018] SASC 102
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CaseChat Overview and Summary

In the case of Washington v Washington, the appellant, Eunice, sought to appeal against the orders of the Master of the Supreme Court of South Australia. Eunice’s son, Gary, who is also a party to the proceedings, supports her appeal. The appeal concerns the Master's order requiring Eunice to undergo a psychological examination for the purpose of providing evidence for an inquiry to determine whether a litigation guardian should be appointed. Julie, the first defendant and daughter of Eunice and Lincoln, opposed the appeal. The appeal was dismissed by the court.

The legal issues in this case centred on the competency of the appeal against the Master's orders and whether those orders were appealable. Specifically, the court had to determine whether the Master's orders constituted a "judgment" within the meaning of the Supreme Court Act, and thus were appealable as of right. The court also had to consider whether the Master had jurisdiction to order the psychological examination and whether the order was an abuse of process.

The court found that the Master's orders were appealable as they constituted a "judgment" under the Supreme Court Act. The court held that the Master's orders were of a different character to incidental rulings and imposed a binding legal obligation on Eunice to attend for an examination. The court further held that the Master had jurisdiction to order the psychological examination under the parens patriae jurisdiction and the inherent jurisdiction of the court. The court rejected the argument that the order was an abuse of process, finding that the Master was weighing up the competing considerations in making the order.

In conclusion, the court dismissed the appeal and held that the order made by the Master was supported by the parens patriae jurisdiction and the inherent jurisdiction of the court. The court found that the Master's orders were appealable as they constituted a "judgment" within the meaning of the Supreme Court Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for 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.

Ratio Decidendi

Legal Principle Established

Lastly, Eunice notes that the Master’s orders are unprecedented. Accordingly, little can be drawn from the absence of any other appellate judgment against an order by a Master for an inquiry into the capacity of a litigant who is represented. They submit that the closest decision is that of the Full Federal Court in L v Human Rights and Equal Opportunity Commission.[9] In that case, a Magistrate made an order staying the proceedings until the Court received psychiatric evidence confirming the unrepresented litigant, Ms L, did not require a litigation guardian. The Full Court allowed the appeal on the basis that Ms L was denied procedural fairness. [9] (2006) 233 ALR 432.Consideration as to the competency of the appeal In order to characterise properly the Master’s orders it is necessary to identify the question considered by his Honour and the effect of his orders. The Master heard an interlocutory application which sought orders for the appointment of a litigation guardian for Eunice. During the course of hearing the application, Julie moved the Master to order that there be an inquiry as to Eunice’s capacity to conduct these proceedings. After hearing the parties on that question, the Master determined there was to be an inquiry, directed that Eunice must attend for a psychological examination for the purposes of that inquiry and also directed that until the inquiry was completed, no party was to take further steps in the proceedings. I am not persuaded that the Master’s action was merely an “incidental ruling” to obtain evidence rather than a “judgment” within the meaning of the Supreme Court Act. The relevant orders are of a different character to the examples referred to by King CJ in the Legal Practitioners Case being “adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact, law or procedure made during the course of a hearing”. Whilst the Master did not finally decide whether a litigation guardian should be appointed, his Honour nevertheless finally determined the question of whether an inquiry should be conducted. Furthermore, the Master specifically ordered that Eunice must attend for an examination for the purposes of that inquiry. That order was not merely an invitation or suggestion directed to Eunice, nor was it a mere grant of an adjournment pending her decision as to whether she would attend the examination. The order imposed a binding legal obligation upon her to attend and submit to examination. Thus, the Master made “an order or direction” in terms of the definition of a “judgment” in s 50(6) of the Supreme Court Act. The mere fact that his Honour’s orders were interlocutory in that they did not finally determine the wider question posed by the application does not indicate that they were merely an “incidental ruling”. Interlocutory decisions made by Masters of this Court are subject to appeal to a single Judge as of right.[10] [10] Supreme Court Act 1935 (SA), s 50(2).