TA v IA

1. [1]

   HER HONOUR: Before me for hearing on 7 and 8 November 2017 was an application, by further amended summons filed on 29 August 2016, for the appointment of the NSW Trustee as manager of that part of the estate of the defendant (“IA”) as relates to IA’s claim for compensation and conduct of District Court proceedings (2009/767) arising out of a motor vehicle accident which occurred on 2 July 2007. Liability has been admitted in the District Court proceedings and the only issue remaining to be determined (and which has now been awaiting determination for a considerable time) is as to the quantum of damages.

2. [2]

   The present application is brought by the defendant in the District Court proceedings (“TA”), who has at all relevant times been represented by his insurer. The application is made on the basis that it is alleged IA is incapable of managing his affairs in relation to his compensation claim. The names of the parties have been anonymised in these reasons consistently with the manner in which this matter has been conducted in this Court.

3. [3]

   The litigious history of this matter is long and by no means uncomplicated. However, it is necessary to set it out in some detail so that IA, who chose not to attend the hearing before me, has the opportunity to understand (or to have explained to him, as the case may be) the reasons why I have concluded that the NSW Trustee should be appointed as manager of that part of his estate as relates to his claim in the District Court proceedings, including the conduct and/or settlement of that claim.

4. [4]

   For most of the proceedings in the Supreme Court (with one notable exception, to which I will refer in due course), IA has not had the benefit of legal representation. However, over the course of the proceedings in the District Court he did retain numerous solicitors (as at July 2015, the number of solicitors who had acted for him in those proceedings was said to be in excess of 14 – three of whom had obtained judgments against him in respect of their legal costs – see the affidavit sworn 7 July 2015 by TA’s solicitor, Alwyn Gillis, at [8]). As at the time of the present application IA remained unrepresented.

History of the various proceedings to date

1. [5]

   As adverted to above, IA was injured in a motor vehicle accident on 2 July 2007 when there was a collision between his vehicle and that being driven by TA. Proceedings were commenced by IA against TA, seeking common law damages under the Motor Accidents Compensation Act 1999 (NSW), by way of statement of claim filed in the District Court on 26 February 2009. The pleading alleged that the collision had resulted from the negligence of TA and that, as a result of the collision, IA suffered injury, loss and damage. Particulars of the injury were stated (at [8]) in broad terms: injury to the brain, injury to the neck, and injury to the back. The statement of claim alleged (at [19]) that prior to the accident IA had “a good regular employment history” and that at the time of the accident IA was working as a car salesman.

2. [6]

   In the course of the District Court proceedings, an issue arose as to IA’s capacity to give instructions in relation to the matter. The manner in which the issue arose was explained in an affidavit filed in October 2014 in the District Court proceedings by the solicitor (Maithri Panagoda, a partner of Carroll & O’Dea lawyers) who had then only recently taken over the conduct of the proceedings for IA at the request of the Court (see annexure D to the affidavit sworn 19 January 2015 by Mr Gillis). In that affidavit, Mr Panagoda deposed that he had been requested by the Court to take over the matter to assist and try to bring it to a resolution; that IA had in the past been represented by seven different law firms; that Mr Panagoda had briefed Mr Andrew Stone of Counsel; and that he and Mr Stone had conferred with IA and considered that IA had difficulty understanding the advice given and providing instructions in relation to various matters. Mr Panagoda deposed to concerns as to IA’s mental stability and to his view that IA’s capacity needed to be determined before proceeding further with the matter.

3. [7]

   Mr Panagoda arranged for an assessment as to IA’s capacity to be made by Dr Patricia Jungfer, a consultant psychiatrist. Dr Jungfer had previously examined IA, at the request of IA’s solicitors, for the purposes of a medico-legal report in 2009.

4. [8]

   Dr Jungfer, who gave evidence before me on the present application, examined IA on 17 November 2014 to assess his capacity to give instruction with relation to his legal matter. In Dr Jungfer’s report dated 18 November 2014 (annexure E to Mr Gillis’ 19 January 2015 affidavit in the present proceedings), Dr Jungfer stated that at the time of her assessment of IA in 2009 she was of the opinion that he had “an adjustment disorder with depressed and anxious mood within the context of chronic pain” and relatively large doses of a narcotic analgesia (p 2). Dr Jungfer listed the medications IA was then taking, which she considered to be of relatively high dose, and stated that all those medications “have an impact with regards to cognition and decision making ability” (p 2).

5. [9]

   Dr Jungfer’s assessment of IA, following her examination of him on 17 November 2014, was that he was thought disordered. Dr Jungfer explained it (p 4) thus:

6. [10]

   In her report, Dr Jungfer set out four tests as to what in her opinion constituted capacity to provide instructions for legal counsel: ability to understand the relevant information; ability to reason about the potential risks and benefits of particular options; ability to appreciate the nature of the situation and the consequences of one’s choice; and ability to express the choice and adhere to the decision. She concluded (p 7), as to the first, that IA’s ability to understand information relevant to the legal proceedings “was influenced by his cognitive processes, that is his impairments of cognition as well as his mental state particularly his paranoid delusional system”.

7. [11]

   As to the second, Dr Jungfer said that in clinical assessment IA demonstrated marked rigidity of thinking; was unable to take on and consider information; was unable to propose alternatives to the decisions he forms and was not prepared to discuss the risks associated with any decision he makes. Dr Jungfer concluded that he failed the second arm of the test of capacity as he lacked the ability to reason about the risks and benefits of his options.

8. [12]

   As to the third, Dr Jungfer again concluded that IA failed that test, stating her opinion that IA’s thought processes and behaviour demonstrated that he could not appreciate the seriousness of the situation or the consequences of his decisions.

9. [13]

   Finally, as to the fourth arm of the test of capacity, Dr Jungfer considered that IA did satisfy this, “in that he does have a choice and he does stick with that choice or decision that he has made” but qualified this by saying that “[t]he problem is that his decision making process is impaired, that he is unable to take in the information that is required and therefore ultimately lacks capacity” (p 8).

10. [14]

    Dr Jungfer’s conclusion as at November 2014, therefore, was that IA did lack legal capacity (p 8):

11. [15]

    Pausing here, at the hearing before me Dr Jungfer confirmed her opinion and, relevantly, Dr Selwyn Smith (IA’s former treating psychiatrist, on whose opinion IA had relied when the issue as to his capacity was first considered in this Court by Lindsay J) not only agreed that Dr Jungfer’s outline of the test for incapacity was fairly stated but also was firm in his opinion that IA now lacks capacity to conduct litigation on his own behalf or to instruct a solicitor or counsel in respect of the litigation.

12. [16]

    Going back to the timeline in relation to this matter, the next relevant event was that the matter came before Norton SC DCJ in the District Court on 1 December 2014 for the hearing of an application by IA for a payment out of court on the basis of hardship. IA was representing himself but there was also an appearance on that occasion by Mr Stone of Counsel as amicus curiae. Her Honour granted IA leave to obtain a doctor’s report by 8 December 2014 addressing the issue as to whether he needed a tutor (see [4] of her Honour’s reasons published on 4 February 2015).

13. [17]

    When the matter came back before her Honour on 18 December 2014, IA tendered two documents (see her Honour’s reasons at [12]), the first being a handwritten note dated 4 December 2014 from Dr Smith (IA’s psychiatrist) stating that IA “has the capacity to instruct counsel and follow legal proceedings”; the second being a letter from Dr Augusto A Tablante (IA’s general practitioner) certifying that IA “has at this stage legal capacity to proceed with the court case” (but adding that he may need a Hindi interpreter so he can fully understand the proceedings). Copies of those letters are annexed to Mr Gillis’ 19 January 2015 affidavit in these proceedings.

14. [18]

    Norton SC DCJ found the report of Dr Jungfer more persuasive than the letters from IA’s general practitioner and psychiatrist ([18]), pointing to the lack of any reasoning disclosed in the letters. Her Honour did not think it appropriate to deal with the question of payment out until a tutor had been appointed and said that, as there was no person willing to become IA’s tutor, she could not make any orders relevant to that matter ([18]). Her Honour noted that a senior solicitor in the office of the NSW Trustee (Ms Phang) had attended Court and had indicated to the Court on 18 December 2014 that the NSW Trustee would not become involved unless a financial management order was first made.

15. [19]

    Proceedings were then commenced by TA in the Protective List in this Court by the filing of a summons on 21 January 2015 seeking protected estate management orders under s 41 of the New South Wales Trustee and Guardian Act 2009 (NSW) (on the basis that IA was incapable of managing his legal affairs). In particular, the summons, as filed, sought a declaration that IA was incapable of managing his affairs; and orders that his estate be subject to management under the New South Wales Trustee and Guardian Act and that the New South Wales Trustee and Guardian be appointed as manager of the estate and of the legal proceedings commenced by IA.

16. [20]

    In June 2015, an amended summons was filed. In the amended summons what was sought was only the appointment by the Court of a tutor for IA to conduct the District Court proceedings (see the affidavits sworn 19 January 2015 and 7 July 2015 by Mr Gillis in these proceedings; and see [101] of the reasons later published by Lindsay J in A v A [2015] NSWSC 1778). The significance of that amendment will become apparent in due course.

17. [21]

    Separate proceedings were then commenced by IA in the Common Law Division of this Court (2015/186082) in which IA applied (by an amended summons filed 7 July 2015) for orders including an order that the District Court proceedings be transferred to this Court and for an interim payment to be made to him. In his affidavit filed 24 June 2015 in those proceedings (in which IA deposed that he wanted the court to grant him a “million dollar upfront payment so I can get the worlds best defence proffessioanl [sic] to defend me in my matter”), IA included the following (seemingly, from the context, referring to a District Court judge who had at some stage had the matter before him, although it is possible that the complaint was directed to one of the legal representatives acting on the instructions of the insurer):

18. [22]

    Pausing here, in his oral evidence in this Court, Dr Smith expressed doubt as to whether IA had in fact suffered a stroke but nothing turns on this.

19. [23]

    IA complained in that affidavit that he was being “bullied, robbed for my injury at 9% to avoid victims not to get pain and suffering from the threshold of 10% …”. He said that he had referred the matter “before the commission for commission hearing for all actions by solicitors who acted and bullied me all this time 7 years”. He accused the judge of misconduct and conspiracy with the doctor and said that the doctor was “UNDER INVESTIGATIONS BY THE MEDICAL BOARD AND HEALTH COMMISSION”.

20. [24]

    The application for appointment of a tutor came before Lindsay J, sitting as the Protective List judge, on 20 July 2015. IA appeared in person on that occasion.

21. [25]

    By this time, Dr Smith had issued a report headed “To Whom It May Concern” dated 13 February 2015, which he had subsequently corrected in a letter dated 6 March 2015 (there being a typographical error in the use of the word “incapacity” instead of “capacity”). The corrected version of Dr Smith’s report expressed the opinion that IA had “the capacity to proceed in regard to settlement of his matter” and that he did have the capacity to manage his affairs. It is clear from that report that Dr Smith had had regard, among other things, to a recent MRI scan of IA’s brain (which he said had revealed a “small 3-4mm left fronttemporal white matter lesion” that in his opinion was not consistent with cognitive impairments that would intrude into his capacity to instruct counsel or manage his affairs); as well as to the initial report prepared by Dr Jungfer on 21 October 2009 (which Dr Smith noted had diagnosed an Adjustment Disorder with Depressed and Anxious Mood and narcotic intoxication) and Dr Jungfer’s 18 November 2014 report.

22. [26]

    Lindsay J, having had regard to evidence as to the course of the District Court proceedings, the available medical evidence (including Dr Jungfer’s report), Norton SC DCJ’s reasons for judgment, and his own observations of IA in Court, proceeded to declare that IA was incapable of managing his affairs and made orders including orders that IA’s estate be subject to management under the NSW Trustee and Guardian Act and that management of the estate be committed to the NSW Trustee (see A v A at [103]).

23. [27]

    His Honour did not at the time deliver formal reasons for judgment in support of those orders, which were made in the course of a busy list (see A v A at [104]). His Honour considered that it was important for the NSW Trustee to become involved without delay in order to protect and advance the welfare and interests of IA (A v A at [104]). The orders made by his Honour reserved for further consideration in the Protective List proceedings whether the NSW Trustee “can and should” be appointed tutor for IA in the District Court proceedings and whether a member of IA’s family “can and should” be appointed as manager of his protected estate with a view to appointment also as his tutor in the District Court proceedings.

24. [28]

    The two sets of proceedings (i.e., both the Protective List and Common Law Division proceedings) were then listed before Lindsay J on 3 August 2015. On that occasion, a senior solicitor in the employ of the NSW Trustee appeared (Ms Brouwer), the NSW Trustee by then having been appointed as manager of IA’s estate; and IA again attended in person. His Honour heard submissions and then made notations and orders (see A v A at [108]), again without delivering formal reasons for judgment.

25. [29]

    In particular, his Honour noted that the NSW Trustee, as a protected estate manager of IA, consented to act as tutor for IA in the pending proceedings (the District Court proceedings and the proceedings in the Common Law Division for the transfer of those proceedings to this Court). His Honour further noted (at [108]) that the NSW Trustee proposed to engage in discussions with the legal representatives of TA with a view to ascertaining whether IA’s claims for compensation could be the subject of a settlement agreement (subject to approval by the Supreme Court in its exercise of protective jurisdiction) and, if not, about the best means of advancing the compensation proceedings to an orderly conclusion.

26. [30]

    In the Common Law Division proceedings, his Honour ordered that, subject to further order, the further conduct of the District Court proceedings be stayed pending the determination of the Common Law Division proceedings (see A v A at [109]).

27. [31]

    When both sets of proceedings came back before Lindsay J again on 12 October 2015, IA made an oral application for an order that both the management orders made on 20 July 2015 and the order made on 3 August 2015 for the appointment of NSW Trustee as tutor be revoked. His Honour made directions for the hearing of that application on 16 November 2015 and IA’s application was heard on that date.

28. [32]

    By that stage, IA had sworn two further affidavits (on 1 and 28 September 2015, respectively) identifying the relevant court on the cover page of those affidavits as the Court of Appeal (though the first affidavit included the case numbers for the equity and common law divisions, which were crossed out and with the court of appeal matter number added in handwriting presumably at a later stage). In the affidavit sworn 1 September 2015, allegations of bribery (money changing hands behind closed doors), negligence, bullying, illegal treatment, cover ups, deception, pressure, torture and the like were made, at some length. IA asserted that it had become a “CRIMANL MATTER NOW AS I AM SEEKING JUSTICE FOR MY LIFE DESTROYED FOR YEARS” [sic] ([26]). He said he was seeking orders for $120 million damages ([49]). Similar allegations were contained in his 28 September 2015 affidavit.

29. [33]

    IA’s application to set aside the relevant orders was dismissed by Lindsay J on 27 November 2015 (A v A). In the course of his Honour’s reasons, his Honour noted that TA had applied for the orders then under challenge because in practical terms absent such orders the District Court proceedings could not be heard on their merits but must remain stayed (see at [7]). His Honour said at [8]:

30. [34]

    At [12], his Honour said:

31. [35]

    His Honour went on to say (at [13]) that, if medical evidence were to be necessary to support a finding of fact that IA was incapable of managing his affairs, such evidence could be found in abundance in the evidence of Dr Jungfer (who had been subpoenaed to attend on the hearing of the application before his Honour and who had been cross-examined on the report she had given and which had been tendered in the District Court proceedings). His Honour said (at [14]) that Dr Jungfer’s evidence:

32. [36]

    At the hearing, IA had tendered the report dated 13 February 2015 from Dr Smith (see [25] above), as well as a letter dated 27 October 2015 from Dr Smith in which Dr Smith stated that he was unable to appear on 16 November 2015 because of heavy patient commitments but was available the following day at 2pm. His Honour made reference to the fact that Dr Smith was on record as expressing an opinion that IA was able to manage his own affairs but that Dr Smith was not available to give oral evidence on the date deliberately appointed by the Court for that purpose ([121]). Oral evidence was also given at the hearing by IA’s brother-in-law to the effect that he believed that IA did not need a tutor and was fully capable of managing his affairs.

33. [37]

    His Honour concluded, afresh, that IA lacked capacity, saying (at [123]):

34. [38]

    His Honour also noted that, were the orders then under challenge to be discharged, the likelihood was that IA’s compensation proceedings would remain in a state of perpetual limbo, effectively stayed on a permanent basis (since no sensible person of substance, fully informed about risks attaching to acting for IA, could reasonably be expected to take on such a task either as lawyer or as tutor) ([126]) and that, without a protected estate manager, tutor and professional legal assistance, IA was unlikely to obtain any award of compensation since “[i]t is not within his power to understand, or to implement, the steps necessary to reach that goal” ([127]).

35. [39]

    His Honour therefore dismissed IA’s application for revocation of the earlier orders that had been made.

36. [40]

    IA then filed an application for leave to appeal. The initial grounds of appeal filed by IA included complaints as to the fairness of his trial (on the basis of the alleged bribe of a doctor) and a claim for justice for all actions “as I sue for total lum [sic] sum of 120 million dollars for life destroyed”.

37. [41]

    IA also filed a notice of motion in the Court of Appeal, seeking orders for the NSW Trustee and Guardian to be removed, that the Court make orders reviewing all orders made by various courts in the past eight years, and other orders, including a request for an emergency hardship payment and orders for a 10 day hearing to be listed in the Court of Appeal “for all negligence caused in this matter from 2007, professional negligence, mendicals [sic] negligence, by all PARTIES who acted in this matter”. The motion also sought orders “for advance payment of 5 million dollars” apparently by reference to a loss of income claim for $15 million “plus”. Gleeson JA dismissed IA’s notice of motion on 16 February 2016 (A v A [2016] NSWCA 17).

38. [42]

    The application for leave to appeal was listed on 20 April 2016 before Sackville AJA and me, for a leave only hearing. On that occasion, IA applied for an adjournment of the hearing. After hearing oral submissions from IA on that adjournment application, the Court ordered that the appeal be listed on 20 June 2016 for a concurrent hearing, i.e., for the hearing both of the application for leave to appeal and, if leave were to be granted, the appeal itself. Ancillary orders were made referring IA to the pro bono panel for assistance and for the filing of an amended draft notice of appeal.

39. [43]

    The outcome of the concurrent hearing, at which IA was represented by Mr Hooke SC and Mr Masur of Counsel, was that leave to appeal was granted, limited to those grounds contained in an amended draft notice of appeal filed with the Court on 11 May 2016, and the appeal was allowed (IA v TA [2016] NSWCA 179). Orders were made to dispense with compliance with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to the extent that r 7.14(1) would prevent IA from commencing proceedings by way of filing the summons for leave to appeal, or filing any notice of appeal if leave is granted, and insofar as r 7.14(1) would prevent him from carrying on any such proceedings (there being power to do so under s 14 of the Civil Procedure Act 2005 (NSW) – see Mao v AMP Superannuation Ltd [2015] NSWCA 252 at [56]‑[59]).

40. [44]

    The appeal was allowed on two grounds: first, on the basis that the jurisdiction to make the protected estate management orders had not been invoked (since the amended summons sought only the appointment of a tutor to conduct the District Court proceedings) (ground 1) and, second, on the basis that, to have decided in part not to accept Dr Smith’s evidence on the basis that he was unavailable on 16 November 2015 was to deny IA procedural fairness (ground 2).

41. [45]

    As to ground 1, the Court (Bathurst CJ, Simpson and Payne JJA) said (at [63]):

42. [46]

    As to ground 2, the Court found that the protective list judge had erred in not permitting IA to call evidence from his treating psychiatrist (Dr Smith) and to make arrangements to hear that evidence ([7]). The Court noted that Dr Smith’s report made clear that he took a view contrary to Dr Jungfer and said that balance required that he be allowed to give oral evidence as Dr Jungfer had done ([76]); that, as IA’s long term treating psychiatrist, Dr Smith was a critical witness on the issues that confronted the judge ([77]); and that there was no suggestion that Dr Smith’s availability to give evidence on the afternoon of 17 November 2015 could not be accommodated by the Court, nor had any other party expressed any opposition to that course ([79]). The Court considered that if the primary judge was minded not to accept Dr Smith’s evidence on the basis that he had not given oral evidence, then the primary judge was obliged in the circumstances of the case to adjourn the hearing to the following day ([80]), or at the very least, to make it abundantly clear to IA that he may, in part, decide the matter on the basis that Dr Smith was not available to give evidence on 16 November 2015 ([83]).

43. [47]

    In the course of the Court’s judgment, it was noted (at [63]) that a decision about capacity in the context of an estate management order may raise different considerations to a decision about whether to make an order in relation to IA’s right of action being prosecuted in the District Court litigation (and hence that upon remitter attention should be given to the width of the relief sought in any further amended pleading to be filed and that attention should be given to whether, pursuant to s 40 of the NSW Trustee and Guardian Act, it is appropriate to seek a more limited order than that made on 20 July 2015).

44. [48]

    Further, to the extent that the primary judge (by quoting from his earlier judgment in H v H [2015] NSWSC 837 at [36]) had found that he was free in the present case to make an order under s 41 of the NSW Trustee and Guardian Act (or refuse to make an order under s 86 of that Act) without psychiatric evidence, the Court expressly disagreed with that proposition ([69]). The Court said (at [69]):

45. [49]

    At [70], the Court said:

46. [50]

    That said, the Court held that, in the present case, having admitted the psychiatric evidence of Dr Jungfer, the primary judge was bound to consider the competing psychiatric evidence of Dr Smith and that, to prefer Dr Jungfer’s conclusion to that of the treating psychiatrist, without hearing from the latter and testing his views against those expressed by Dr Jungfer was an error ([72]).

47. [51]

    Importantly, when assessing IA’s understanding of what has occurred, it is clear that the Court of Appeal made no finding that IA had legal capacity to conduct his own compensation proceedings. Rather, the Court of Appeal remitted the matter to the Equity Division to determine the application by TA (which at that stage was as to the appointment of a tutor to conduct the respective proceedings).

48. [52]

    On 23 August 2016, TA filed an amended summons in the Equity Division proceedings seeking, relevantly, the following orders:

49. [53]

    On 24 October 2016, IA filed a motion to vary the Court of Appeal’s judgment, seeking a wide range of additional relief. He filed an amended notice of motion seeking even more extensive additional relief on 31 October 2016, including orders for moneys owed from 2007 (something said to have been “ignored” by IA’s pro bono barrister) and seeking orders for forensic evidence for assessments for losses and damages “which was told more than what I filed my matter for was stop by pro bono S.C.” [sic]. IA’s notice of motion further asserted that his pro bono “has damaged my appeals from finality and brought matter back to primary court ...”, this seemingly being a complaint against Senior Counsel who had argued the appeal by reference to the fact that the matter had been remitted to the Equity Division (although in most of IA’s later email communications he disputes the notion that the Equity Division proceedings still exist).

50. [54]

    IA’s amended notice of motion came before Payne JA in the Court of Appeal on 31 October 2016. On that occasion, his Honour made orders of an administrative or procedural nature, in relation to the filing of submissions within a particular timeframe and for the matter to be determined on the papers by the Court comprising Payne JA and Sackville AJA and myself. Payne JA expressly noted that the Court had not been asked and was not staying the pending proceedings and was not intending that the timetable being set by his Honour would interfere with or inhibit any application for expedition in proceedings in the Supreme Court or District Court.

51. [55]

    Pausing here, what transpired on 31 October 2016 is of no little significance because since then IA has persistently asserted that Payne JA’s orders on that occasion amounted to a final determination of his matter (such that the Equity Division proceedings had then been finally disposed of or no longer existed) and IA appears to have led his psychiatrist, Dr Smith, to understand (incorrectly) that Payne JA had on that occasion made a positive finding as to IA’s capacity (see below). Since the directions made on 31 October 2016 by Payne JA, IA has consistently labelled the ongoing proceedings in the Equity Division as a fraud.

52. [56]

    On 13 December 2016, IA’s amended notice of motion filed 31 October 2016 was dismissed as incompetent (IA v TA (No 2) [2016] NSWCA 349).

53. [57]

    Dr Smith re-examined IA, presumably at IA’s request, on 10 November 2016. By letter dated 10 November 2016, headed “To Whom it May Concern”, Dr Smith stated that:

54. [58]

    As should already be obvious, any suggestion that Payne JA made a finding as to capacity is untenable and the Court of Appeal dealt with that issue only by setting aside the earlier orders for protected estate management and the appointment of a tutor, remitting to the Equity Division TA’s application in which the issue of capacity was squarely raised.

55. [59]

    On 22 September 2016, TA’s remitted application was listed for hearing before Rein J on 16 and 17 March 2017. On 12 December 2016, TA sought leave to file a motion returnable before the vacation judge (Slattery J) in order to make an application for IA to attend a medical examination in January 2017. Bergin CJ in Eq gave leave for the filing and service of that motion and on 20 December 2016 the matter came before Slattery J. IA appeared on that occasion, without legal representation. Slattery J heard submissions from the parties and made an order for IA’s medical examination on 5 January 2017 (by an expert psychiatrist, Dr Bruce Westmore)

56. [60]

    The transcript reveals that on that occasion IA informed his Honour that the matter had to go to the High Court because he had won one matter (presumably, the appeal from Lindsay J’s orders) but that the “other matter was excluded from the hearing of 20 June by both parties’ barristers in a very professional manner on 11 May” (T 3). By this, it appears IA was asserting that what had been excluded from the Court of Appeal was “the main matter that I am fighting” (presumably, his compensation claim) (T 4).

57. [61]

    I interpose to note that this is another instance where IA has been critical of his legal representatives and that he appears to have considered there to have been collusion of some kind between Counsel in the conduct of the matter (in his reference to 11 May). I also note that despite numerous references by IA to proceedings in the High Court, there is no evidence of any such proceeding having been commenced.

58. [62]

    In the course of submissions before Slattery J, IA made a number of assertions, including that the application before his Honour was based on fraud because the matter had been determined by the Court of Appeal and because “it is not a doctor’s case. It is my case that I am seeking justice for ten years …” (T 8.31; T 21.37). IA did not accept that the matter was listed for hearing before a single judge in March (which it had been), saying “That has all been squashed [sic] on 31 October by Justice Payne in Court of Appeal who made orders on 31 October strictly file submissions on 25 November by 4pm. I submitted my submissions to judgment made on 13 December”. (As adverted to above, a common theme in IA’s communications to numerous persons connected with the proceedings and otherwise is that the proceedings in the Equity Division have been finally disposed of by the decisions made in the Court of Appeal following the concurrent appeal hearing and by the making of orders by Payne JA – hence his repeated assertions that the present proceedings are a fraud; see below).

59. [63]

    See, for example, the following exchange between Slattery J and IA (at T 12):

60. [64]

    What is abundantly clear (not just from the above but from numerous other pieces of correspondence from IA – see below) is that IA believes (or is at least asserting), incorrectly, that the success of his appeal from the orders made by Lindsay J and/or the making of the directions by Payne JA on 31 October 2016 means that he has been found to have legal capacity. That appears to have influenced his attitude to the hearing of the matter on remittal from the Court of Appeal. For present purposes what is significant is that IA was apparently unable to understand or accept what was being patiently explained to him by Slattery J on 20 December 2016, namely that the matter of his capacity was still for a judge in the Equity Division to determine.

61. [65]

    IA told Slattery J that he was not going to see their (the insurer’s) doctor “because they have a conflict of interest” and that he “cannot be set up to go and see their doctor because of conflict of interest” (T 18.26). He also told Slattery J that he was not going to attend the hearing in March “because that orders, as far as I am concerned, I have been told on 31st of October by Justice Payne every order made in this matter from 2007 including 29th of July, orders all been quashed” (T 19.10). His position was that “The Court determined and gave my capacity back, Court of Appeal gave my capacity back, so why do I have to go in the drama in the primary court and come backwards when the matter was for finality on 20th of June … it is a contempt of court orders and conflict of interest by parties” (T 21.46-50).

62. [66]

    Slattery J impressed upon IA on that occasion that he was ordering IA to attend the medical examination (and drew to IA’s attention the warning as to contempt at the bottom of the orders that had been made). IA did not, however, attend the examination (which he maintained was a “set-up”), despite arrangements having been made for his transport to and from the examination and in contravention of the order made by Slattery J.

63. [67]

    Following IA’s failure to attend the medical examination as ordered, TA’s solicitors applied for the matter to be listed for directions before Rein J on 9 February 2017 (who was to be the judge hearing the remitted application). IA failed to attend that directions hearing. His Honour’s associate notified IA that the matter would be listed for directions on 21 February 2017. IA again failed to attend that next directions hearing.

64. [68]

    The matter then came before Rein J on 16 March 2017 for the hearing of TA’s application for the making of protected estate management orders in relation to the conduct of IA’s compensation claim. IA appeared before Rein J on that occasion and sought an adjournment of the hearing. It is relevant to note at this point that TA’s solicitors had subpoenaed Dr Smith to attend to give evidence at that hearing and, as the email communications in evidence before me (to which I will refer in due course) make clear, IA had been urging Dr Smith not to attend the hearing notwithstanding that Dr Smith had been subpoenaed so to do.

65. [69]

    Rein J acceded to IA’s adjournment application, on the basis that IA was seeking to retain a solicitor to appear at the hearing, and a regime was put in place whereby the insurer agreed to make funds (of $15,000) available for IA to have the benefit of legal representation (a solicitor of his own choice) at the hearing. Rein J made orders for IA, on or before 24 March 2017, to notify the plaintiff in writing as to the solicitor he had instructed to act on his behalf in the proceedings. That arrangement did not ultimately proceed because IA did not instruct any solicitor to appear on his behalf at hearing. Instead, IA advised by email that he had retained the “AFP” (presumably referring to the Australian Federal Police) and demanded that the costs be paid into the AFP trust account. The insurer declined to do so.

66. [70]

    On 22 June 2017, the matter came before me on the application of TA (by notice of motion filed on 13 June 2015) for an order that IA attend a medical examination to be conducted on the issue of capacity. By the time that motion was heard, Dr Westmore had retired and I was informed that an appointment had been arranged for 31 July 2017 for IA to be examined by another forensic psychiatrist, Dr Samson Roberts.

67. [71]

    IA did not attend the hearing of the notice of motion but forwarded numerous emails to my chambers (and to others in the court) indicating that he would not be prepared to attend the appointment and requesting that the plaintiff not make any appointments through its doctors in regards to his capacity. For the reasons I gave at the time (TA v IA, 22 June 2017), I dealt with the matter in IA’s absence and I made the order for IA’s medical examination having regard to the principles outlined in Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136 as to the circumstances in which an order can be made under r 23.4 of the UCPR for a party to proceedings to be medically examined (see also KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children’s Hospital Westmead [2010] NSWSC 891). Not surprisingly, given the indication IA had given in his email correspondence, IA did not attend that medical examination.

68. [72]

    Meanwhile, IA had filed a summons seeking leave to appeal from the interlocutory orders made by Bergin CJ in Eq on 12 December 2016, Slattery J on 20 December 2016, and Rein J on both 21 February 2017 and 16 March 2017. That application was heard on 19 July 2017 by McColl and Meagher JJA and dismissed with costs (IA v TA (No 3) [2017] NSWCA 2017). The Court noted that the orders sought to be appealed from were made in the course of case management of the remitted application and concerned matters of practice and procedure ([10]). The Court said that it was not apparent from the terms of any of the orders sought to be appealed that the order has an ongoing effect which could possibly result in any substantial injustice to IA ([11]) and went on to say (at [12]) that:

69. [73]

    The matter was listed for directions before me twice in October 2017 (on 16 and 19 October 2017) on which occasions IA did not appear. That then brings me to the hearing that was listed for two days on 7/8 November 2017 before me.

70. [74]

    There was no attendance at the hearing before me by IA. However, there is no doubt that he was aware of the hearing dates (as his email correspondence to various persons both within and outside the court and to my chambers made amply clear – see below). In those circumstances (and particularly having regard to IA’s repeated assertions that the hearing was a fraud; that the matter had already been disposed of; and that he would not attend the hearing) I was of the view that there was no basis on which I could be satisfied that, if the matter were to be adjourned, IA would attend at a later hearing date. I therefore proceeded to hear the matter in IA’s absence (see UCPR 29.7).

71. [75]

    At the hearing, TA relied upon the following affidavits: affidavits sworn by his solicitor, Mr Gillis, of 19 January 2015, 7 July 2015, 12 December 2016, 2 March 2017, respectively; and an affidavit from Ms Joanna Brouwer sworn 27 October 2015 (as to the position as to the conduct of IA’s litigation at that time, relevantly that IA had refused assistance to the solicitors retained by NSW Trustee and Guardian to progress his claim). TA tendered the reports of Dr Smith of 10 November 2016 (Exhibit D) and Dr Tanveer Ahmed of 24 February 2016 (Exhibit E); as well as bundles of email communications: from IA to the Court (Exhibit A), from IA to the plaintiff’s solicitors and Counsel (Exhibit B), from IA to Dr Smith in relation to the latter’s attendance at Court hearings (Exhibit G); from IA to my associate on 6 and 7 November 2017 (Exhibit H), and from IA to my associate on the afternoon of 7 November 2017 in which IA’s most recent quantification of his damages claim was provided (Exhibit J). Copies of the recent communications to my associate were (as a matter of procedural fairness) provided to TA’s Counsel in the course of the hearing (since it was not clear that all of that had been copied to him).

72. [76]

    Many of the email communications were addressed to multiple persons (including from time to time the Judicial Commission, the Office of the Legal Services Commissioner and the Attorney-General; as well as Court registrars and various judges and their staff).

73. [77]

    TA also tendered, for the fact of what was there deposed to but not the truth of their contents, the affidavits filed by IA in the proceedings (being affidavits of 24 June 2015, 1 September 2015, and 28 September 2015) (Exhibit C).

74. [78]

    Accordingly, despite IA’s non-attendance at the hearing, all the evidence upon which he might be expected to have wished to rely was available to the Court. At the conclusion of the hearing, Counsel for TA offered to forward a copy of his closing written submissions to IA and I directed that IA file any written submissions in response within 7 days. Since judgment was reserved, no less than 22 emails have been sent to my associate; the tenor of which is the same as those in evidence at the hearing. I have treated them as submissions. Nothing in them causes me to doubt the conclusions expressed in these reasons. I note that IA has made it very clear that he “will never attend any primary courts”.

Medical evidence

1. [79]

   I have summarised above the written reports from Dr Jungfer of November 2014 and the letters written in 2015 by Dr Smith and IA’s general practitioner (Dr Ablante), as well as the “To Whom It May Concern” letter dated 10 November 2016 from Dr Smith. The other medical report in evidence dating back to the time at which the issue of capacity was first before this Court was the medico-legal report dated 24 February 2016 prepared by a consultant psychiatrist, Dr Tanveer Ahmed, who had examined IA at his request in February 2016 (Exhibit E). A copy of that report was served on TA’s solicitors as part of IA’s submissions in the Court of Appeal proceedings (as Annexure K to the submissions), which are annexed to Mr Gillis’ affidavit in the present proceedings.

2. [80]

   Dealing with Dr Ahmed’s report first, he opined that IA satisfied the criteria for an adjustment disorder with mixed anxiety and depressed mood and that the condition was chronic. Dr Ahmed stated that while IA had difficulty engaging with treatment his condition was unlikely to show further improvement. He said the prognosis was relatively poor and that it was unlikely that IA could either engage with treatment or show significant improvement in his physical and psychological symptoms. However, he was of the view that there appeared to be only mild deficits in short term memory and his other cognitive functions appeared to be intact. Dr Ahmed reported that IA was able to give a coherent history and had enough understanding of his circumstances that he could be considered overall as having capacity to make decisions regarding his finances and health. Dr Ahmed’s report (unlike Dr Smith’s earlier letters) was prepared with an acknowledgement under the expert witness code of conduct.

3. [81]

   Each of Dr Smith and Dr Jungfer gave oral evidence at the hearing (Dr Smith having been subpoenaed to do so). Also in evidence was the written report from Dr Roberts (who had not examined IA) and he too gave oral evidence. I set out below a summary of the evidence given by each of these psychiatrists.

4. [82]

   As already noted, Dr Smith was IA’s treating psychiatrist and it was the treatment by the protective list judge of his initial report (the February 2015 letter as corrected by the March 2015 letter) that led to the upholding of the procedural fairness ground in IA’s appeal. Dr Smith’s 10 November 2016 report confirmed his earlier opinion as to IA having capacity.

5. [83]

   Dr Smith’s evidence before me was that he had not seen IA since he examined him on 10 November 2016, though he had received email communications from IA since then (including on the very morning that Dr Smith gave evidence before me).

6. [84]

   Dr Smith was questioned about emails that he had received from IA in respect of Dr Smith’s attendance at Court for the purpose of this case. Dr Smith confirmed that he had received a number of emails in which IA instructed or requested Dr Smith not to attend the hearing (both before the hearing listed before Rein J to commence on 16 March 2017, which was adjourned at IA’s request and before the hearing before me commencing on 7 November 2017). Dr Smith identified those emails and, when they were produced, copies of the emails were admitted as Exhibit G.

7. [85]

   I summarise the gist of those communications in due course. For present purposes I note by way of example that in the weeks before the scheduled 16/17 March 2017 hearing IA sent an email to Dr Smith on 31 January 2017 saying: “Please do not attend the hearing listed on the fraud hearing on 16 and 17 March”; and on 2 February 2017, IA emailed Dr Smith to say “Please, Doctor, do not attend Court on the 9th as the matter was dealt with on 31 October. I won my full rights back from the Court of Appeal. Thanks”.

8. [86]

   I have extracted earlier the substance of Dr Smith’s letter of 10 November 2016. He was examined in the witness box as to the basis of the statement in that letter as to his understanding that Payne JA had made a finding as to IA’s capacity. There was the following exchange (at T 25):

9. [87]

   Asked to assume a series of facts (which reflected what had actually occurred on 31 October 2016 and then on 16 March 2017) there was then the following evidence (at T 27):

10. [88]

    Pausing there, the comment by Dr Smith as to the amounts involved being “astronomical” I have understood to be a reference to the sum contained in a calculation of damages claim that was emailed by IA to my associate in the afternoon of 7 November 2017 (but seems also to have been sent to Dr Smith in an earlier email communication) (see Exhibit J). That calculation was for a “grand total” of $176,645,438.73 (in a document purportedly prepared by a firm known as TaxAssist Accountant, though the actual calculation was not on that firm’s letterhead). (Dr Jungfer, who was shown the calculation for the first time in the witness box, considered that it indicated a degree of grandiosity on IA’s part – see [103] below).

11. [89]

    Asked to assume facts as to IA’s non-compliance with the court orders that he be medically examined (that again reflect what occurred), Dr Smith gave the following evidence (T 28):

12. [90]

    Dr Smith was given the opportunity to review emails, forming part of volume 2 of the Court Book (see Exhibit B), sent both to the Court and to the plaintiff’s solicitor (and others). Asked whether that assisted him further in terms of his opinion as to IA’s capacity, Dr Smith gave the following evidence (T 29):

13. [91]

    Dr Smith was then asked his opinion as to Dr Jungfer’s opinions expressed in her report of 18 November 2014. As to the four elements that Dr Jungfer considered an appropriate test for capacity in the context of this case, Dr Smith accepted that, in general terms, Dr Jungfer had covered fairly the approach to be adopted in assessing capacity. In Dr Smith’s view, the key one was IA’s lack of capacity to understand or weigh the choices available to him (T 30).

14. [92]

    Asked his opinion as to Dr Roberts’ report (to which I refer below), he said (T 31):

15. [93]

    Dr Roberts, who was in Court while Dr Smith gave his evidence, had not examined IA but had expressed his opinion (as an expert and having acknowledged the expert witness code of conduct) based on the materials with which he had been provided (his report is Exhibit F).

16. [94]

    Dr Roberts is a forensic psychiatrist. He explained the distinction between a forensic psychiatrist and a psychiatrist as being that the former has undertaken specific additional studies in the formal assessment of and treatment of people with forensic issues who have come across the law who need assessment for Court purposes or for other legal purposes. He has worked specifically in forensic psychiatry since 2004 and achieved his fellowship in 2005. He said that a substantial proportion of his work has always been in the medico‑legal assessment, forensic assessment and treatment of people within the prison system as such; including assessing capacity to instruct and fitness to plead, in criminal cases and in assessing capacity in the civil context. He said that while it was not his preferred approach to assess this in the absence of a clinical or face to face review, and this was not ideal, it could be and was done on occasions and he had been asked to do it on a number of occasions (T 34-35).

17. [95]

    Dr Roberts was provided with material including a history of the proceedings, the reports of Dr Smith, Dr Jungfer and Dr Ahmed, and also with copies of email communications from IA.

18. [96]

    In his report, Dr Roberts noted that those who had assessed IA had diagnosed either Adjustment Disorder or Major Depressive Disorder. He noted that the opinions regarding capacity varied. Dr Roberts’ opinion, based on the material he had reviewed was as follows (pp 4-5):

19. [97]

    Dr Roberts’ answers to the specific questions posed of him were as follows (at pp 5-7):

20. [98]

    Dr Roberts was shown a copy in the witness box of the bundle of emails that had been received by my associate on 6/7 November 2017 from IA (Exhibit H) and was asked the following (T 36-37):

21. [99]

    Asked about the different diagnoses as to the psychiatric condition from which IA suffers (including the diagnosis of Dr Jungfer), Dr Roberts gave the following evidence (T 37-38):

22. [100]

    Dr Jungfer gave evidence on 8 November 2017. Dr Jungfer confirmed that she was initially retained in 2009 by IA’s then solicitors to see IA as a medico-legal specialist and to provide a medico-legal report in respect to his claim for compensation; and that her next contact with IA was in 2014 as part of a court ordered independent assessment of IA’s capacity.

23. [101]

    Subsequent to the hearing in the District Court at which Dr Jungfer’s 18 November 2014 report was produced and Dr Jungfer gave evidence, Dr Jungfer was requested to re-examine IA and provide an updated report as to capacity. Dr Jungfer was not prepared to re-examine IA. In her letter dated 9 November 2016 addressed to TA’s solicitors, Dr Jungfer wrote:

24. [102]

    In the witness box, Dr Jungfer explained her position as follows (T 42-43):

25. [103]

    Dr Jungfer had been subpoenaed to give evidence at the hearing scheduled for March 2017 before Rein J, in the context of which she was provided by TA’s solicitors with a folder of material containing a collection of emails, both to the Court and to TA’s solicitors (volume two of the court book), including a schedule of damages. Dr Jungfer had reviewed those documents as well as the additional material in Exhibit H and was asked what further opinion she could express in terms of IA’s capacity in respect to that material. Her answer was as follows (T 45):

26. [104]

    It was Dr Jungfer’s opinion that IA’s condition had deteriorated from 2009, when she first saw him, to 2014 and considered by reference to the escalation of his communications and the nature of them that he had deteriorated even further since then.

27. [105]

    Asked about capacity in the specific context of the ongoing litigation, Dr Jungfer’s evidence was as follows (T 46-47):

Email communications

1. [106]

   As already noted, there were in evidence copies of numerous email communications between IA and the plaintiff’s solicitors, and between IA and various court officers and staff. It is not practical to do more than set out a sample of those communications. Suffice it to say that I have reviewed the emails in evidence and their content amply supports the conclusions of the medical experts that IA is thought disordered and labouring under paranoid delusions.

2. [107]

   In summary, in his email communications IA repeatedly refers to the hearing in this matter, or applications made in this matter, or the Equity proceedings as fraud; he makes accusations amounting to bribery and corruption against doctors, insurers, solicitors and judges – indeed almost everyone connected in any way with the proceedings; he makes allegations of conspiracy or collusion between the insurers and others involved in the proceedings; he perceives what has occurred as amounting to “murder” of his life; he uses intemperate language (and analogies) to express his complaints; he makes assertions that the legal representative acting for the insurer will be struck off or will go to jail; and he fails to exhibit any understanding at all of the nature of the various court proceedings or of what the Court of Appeal did (and did not) determine in July 2016 or as to what transpired at the directions hearing before Payne JA on 31 October 2016. The following is a mere selection, by way of example, of the content of the hundreds of pages of email communications that were tendered in evidence.

3. [108]

   Exhibit A, for example, contains a series of communications between IA and Rein J’s chambers or other members of the Court after the matter was listed before his Honour for directions on 9 February 2017 on TA’s application following IA’s failure to comply with the order made by Slattery J in December 2016 for IA to be medically examined by Dr Westmore on the issue of his capacity. I was taken to various of those emails in closing submissions and I refer to the contents of some of the emails below.

4. [109]

   By email of 1 February 2007 to Rein J’s associate (but addressed in the text of the email to the registrar, myself and Sackville AJA), IA states that this is “fraud listed matter” and (referring to himself in the third person) that [IA] is not going to attend; that the matter number does not exist and that Mr Gillis “HAS OT [sic] be STRUCK OFF MY MATTER”. A further email on that date makes similar allegations as to conflict of interest and the listing of a matter that does not exist, requesting that Rein J’s associate check with Justice Payne “as he knows their games played from 2007”.

5. [110]

   The following day (2 February 2017) IA sends an email addressed to various court registrars and others (including Dr Smith’s office), advising that the equity matter “does not exist”; that the “PRIMARY COURT CANNOT MAKE ORDERS ON MATTER NUMBERS DEALT AS APPEAL WHICH WILL BE UNDER REVIEW WHEN I GET ALL MY FORENSIC EVIDENCE TOGETHER”; and, in relation to the 9 February directions hearing, advising that “[IA] has Advice his Doctor as well in regards to the issues arise from 31th of October, and My Doctor should not comply on the fraud subpoenas send by fraud conducted parties on fraud listed matter Number does not exist”.

6. [111]

   On 7 February 2017, IA sent written submissions to Rein J, referring to the proceedings before Payne JA on 31 October 2016 and asserting that Payne JA “gave me my full rights back” on that day. Reference is made to "procedural fairness act". At the very least, this shows a misunderstanding of what occurred before Payne JA and of the legal process

7. [112]

   Then, in response to notification by Rein J’s associate on 9 February 2017 as to the orders that had been made, IA responds by email, asking in the subject line of the email that Rein J “provide me ANSWERS HOW DID THIS MATTER GOT LISTED WHEN ITS DEALT AS APPEAL MATTER” and stating that “your Honour Needs to check the Facts from five court of appeal Justice [IA] has won his Appeal and does not have to attend that court”, asserting that his matter was “listed for finality on 20th June been deceived by conflict of interest parties and i am not going to be bullied by Equity court”; and that “SORRY NOT ATTENDING AS MY MATTER IS APPEAL MATTER was converted to one whole matter Number and please do not treat me like a native not stupid or fool 2015/242864 and my doctor will not attend ITS APPEAL MATTER NOT PRIMARY COURT MATTER PLEASE FOLLOW THE RULES OF COURT APPEAL CANT BE HEARD IN PRIMARY COUTRT/ONLY IN HIGH COURT thank you”.

8. [113]

   Later on 9 February 2017, IA again emails to say that:

9. [114]

   Further submissions (in similar format to those sent to Rein J) were sent on 10 February 2017 to various judicial officers. A further email was sent by IA on 20 February 2017 at 12.52 pm, with IA taking issue as to the requirement to attend on 21 February 2017, stating:

10. [115]

    A sample of the email communications in Exhibit B, to which I was also taken in closing submissions, reveals a similar refrain.

11. [116]

    For example, there is an email to the plaintiff’s solicitor of 20 October 2016 that includes the statement “Mr Hooke and yourself may explain your actions in regards to my appeals in high court as i file it on Monday, we need to learn how much capacity do i need for seeking justice to my life and what fo I need a tutor for and for who ???"

12. [117]

    On 22 December 2016, at 11.09pm, IA sends an email to the equity registrar and various persons outside the Court which again raises the issue of fraud, stating: “with Judgement orders for hearing on 20th December, behind close doors without being served” (an apparent reference to the listing by Bergin CJ in Eq of the notice of motion seeking a medical examination order before Slattery J on 20 December).

13. [118]

    On 3 January 2017 IA emailed TA’s solicitor (“Re: my request to you cancel your appointments and do not waist time and money told by S.C”), saying:

14. [119]

    A further email was sent on 3 January 2017 at 6.42pm making similar statements, including:

15. [120]

    On 4 January 2017, IA advised Mr Gillis by email that:

16. [121]

    On 6 January 2017 IA emailed various parties again referring to “fraud orders”, asking how the matter got listed and saying:

17. [122]

    On 17 January 2017, IA emailed TA’s solicitor, stating “drop kicks look up your court orders of 31st of October thank you pay my money owed asap today or get off my matter as cannot deal with frauds for 10 years who proofed them self in eyes of law” … “not interested in money I want my bloody life for 10 years back or you all go to Jail that s what my family wants that s the capacity infront of law get it through your thick head”.

18. [123]

    On 17 January 2017 IA emailed the solicitor, including the statements :

19. [124]

    In response to an email from TA’s solicitor (in which the solicitor explains in a balanced way the legal position) IA emailed on 19 January 2017, asserting “sorry my matter is under judicial review by Ministers office than you as my appeals been robbed on 20th June and was not heard when it WAS LISTED FOR FINALITY AND I WON AS ONE MATTER NUMBER THAN YOU 29TH JULY, orders under procedural fairness act, you want to run your show its in either in high court of court of appeal under procedural act I am being told . by registrar . to file my documents asap”.

20. [125]

    Again, on 19 January 2017, IA emails the solicitor:

21. [126]

    TA’s instructing solicitor emailed IA on 19 January 2017, attaching the two Court of Appeal decisions and noting that the matter had been remitted for determination of the application to determine IA’s capacity and appoint a tutor (and that this would occur on 16 and 17 March). IA responds on 19 January with the usual refrain:

22. [127]

    On 22 January 2017, IA again asserts in effect a conspiracy between the legal profession and the Court and, in a further email that day, tells the solicitor “run your fraud show and your barristers”.

23. [128]

    On 27 January 2017 IA sends an email calling for Mr Gillis and his team to be struck off, saying:

24. [129]

    On 13 February 2017 IA sends an email to the solicitor saying:

25. [130]

    There are numerous other emails in similar vein over the period, the content of which it is not necessary to include in this sample of the communications.

26. [131]

    I add however that on 14 February 2017 IA sends an email to the solicitor saying “matter will be struck off tomorrow by justice when we see him in person with all evidence of yours no none will attend that court we made it clear to you i won my matter have fun in court of appeal next week with review as we get our judgments from there or high court” and on 22 February 2017, after Rein J’s associate confirmed the orders made in IA’s absence on 21 February 2017, IA emailed the solicitor and others to say:

27. [132]

    The bundle of email communications produced by Dr Smith (Exhibit G) as communications in which IA gave instruction that he not attend court or requested that he not attend court includes, by way of example, the following emails.

28. [133]

    On 17 November 2016 (a week after Dr Smith’s 10 November 2016 report) IA emails the doctor, stating :

29. [134]

    Then, by email of 31 January 2017, IA asked Dr Smith not to attend the hearing “listed on as fraud hearing” on 16/17 March 2017, asserting that he won his full rights back on 31 October “with your letter provided to court”. The email was also addressed to the Court of Appeal registrar, the Office of Legal Services Commissioner and the Judicial Commission and was titled “re appointments, Attentions to, Doctor ,S. Smith my appeal is under Judicial review through court of appeal only as advice my Judicial commissioner”. At the conclusion of the email, IA appears to ask the registrar to explain to hem “WHAT IS GOING ON HERE THROUGH REGISTRY”, a query apparently relating to how the registrar had listed his matter number when “on 11th MAY ROUND IT UP AS ONE WHOLE MATTER NUMBER”.

30. [135]

    By email of 2 February 2017, IA asked that the doctor be advised “not to attend court on 9th as matter dealt with on 31st of October i won my full rights back from court of appeal”. Also on that date he emailed various parties to advise that the (Equity Division) “matter number Listed 2015/19513, in equity court does not exist as from 11th May, as it was round up as one whole Matter Number 2015/242864” (that being the file number for his appeal proceedings).

31. [136]

    In a further email of 9 March 2017, IA asked Dr Smith:

32. [137]

    The response from Dr Smith’s rooms was that he had been subpoenaed to attend on 17 March and unless advised otherwise by the court would do so. IA’s response to this was that “I have advice the courts I am not attending as matter heard under procedural fairness act I won my matter so why should I loose my rights when they lost .there is not other mater number and this will be shorted out today by CEO of judicial .through Justice Payne”.

33. [138]

    On 13 March 2017, IA advised Dr Smith that “it would be better not to turn up as the orders are for court of appeal to determine my matter with my forensic assessments”. The email made clear that IA was aware Dr Smith had been subpoenaed to attend court; and referred to “this is fraud on matter I won twice under procedural fairness act … by parties in conflict of interest who lost on 31st of October”. The email went on to say “now I am been advice to file my reports to AFP under commonwealth law Fraud”, accusing “Dr Jungfer , both conflict of interest parties and trustee who listed old matter number … as matter was converted to one whole matter Number”. IA concluded “enough of mental abuse and torture by parties who are frauds and have not rights in this matter …. I seek justice as conduct of matter I won on all merits”.

34. [139]

    Then (in advance of the present hearing no doubt), there was an email by IA to Dr Smith on 13 September 2017 (at 1.39am) alerting Dr Smith to there being a matter in the equity division (“they filed it again …while appeal pending decision of 13th December filed behind closed doors through retired judge of equity court”) and telling Dr Smith that IA would come in soon to see him and:

35. [140]

    On 3 November 2017 (at 1.36am) IA sent another email to Dr Smith and to others, including the Court of Appeal registrar and my associate as well as the judicial commission, office of legal services commissioner and the Attorney-General, commencing:

36. [141]

    A further email was sent by IA to Dr Smith on 6 November 2017 seeking a copy of the doctor’s letter dated 10 November 2016 and making similar allegations as to IA having “got my full capacity back with your letter” and saying “I won told by justice not to attend any primary courts strict orders modified by registrar who has been bribed hiding signed off orders of respected justice Payne , please forward me the copy of they letter so I can forward it to courts registry in equity division who are trying to rob my appeals heard as one whole appeal agreed by both parties barristers as one whole matter parties lost their legal capacity and punished before respected your honour”.

37. [142]

    Interestingly, IA tells Dr Smith in that email that the letter in regards to his capacity dated 10 November 2016 was “tying [sic] error as its was 10th October 2016, to justice Payne heard it on 31st of October”. There is no suggestion that Dr Smith’s report clearly dated 10 November 2016 was before Payne JA two weeks earlier on 31 October 2016. It accords with IA’s misunderstanding of what occurred on 31 October 2016 and his misapprehension that what was determined by the Court of Appeal in the judgment handed down in July 2016 was that he had capacity (when in fact the Court of Appeal quashed the orders that had been made by the protective list judge but remitted to the Equity Division the application by TA in which the issue of capacity had to be determined afresh).

38. [143]

    Exhibit H comprises a series of email communications from IA, commencing at 4.07 am on 6 November 2017 to, amongst others, my associate (and sent in apparent response to an email from TA’s solicitors informing IA that the capacity hearing would be proceeding on 7/8 November before me). That email commences:

39. [144]

    It is not necessary to go through the content of all of the emails in Exhibit H. Suffice it to note that they make similar assertions as the other email communications. As for Exhibit J with the compensation calculation, I have already noted it.

Relevant Principles

1. [145]

   As noted earlier, the application by TA is for a partial management order under ss 40 and 41 of the NSW Trustee and Guardian Act, that order relating to that part of IA’s estate as relates to his claim for compensation arising out of the 2007 motor vehicle accident and conduct (including their potential settlement or compromise) of the District Court proceedings brought by IA in respect of that claim. TA no longer seeks an order for the appointment of a tutor to act for IA in the District Court proceedings (that not being necessary if his compensation claim is the subject of a protected estate management order).

2. [146]

   There is no doubt that there is power to make a management order of a part only of the protected person’s estate (see s 40 and s 38 of the NSW Trustee and Guardian Act; and the discussion by Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106; and in Re AAA; Report on a Protected Person’s Attainment of the Age of Majority [2016] NSWSC 805 at [56]-[59]).

3. [147]

   I had cause to consider the principles relevant to the appointment of a manager to that part of a person’s estate as was comprised by that person’s claims in particular proceedings in Mao v AMP Superannuation Limited [2017] NSWSC 987 and it is not necessary here to repeat the general observations I made in that case. Suffice it to note that the general principles to be applied when exercising functions, including the making of management orders, with respect to protected persons are set out in 39 of the NSW Trustee and Guardian Act. They include that the welfare and interests of such persons should be given paramount consideration; that the freedom of decision and freedom of action of such persons should be restricted as little as possible; and that the views of such persons in relation to the exercise of those functions should be taken into consideration.

4. [148]

   Part 57 of the UCPR deals, relevantly, with the evidence required when an application is made pursuant to s 41 of the NSW Trustee and Guardian Act. The evidence relied upon in support of the present application has been noted earlier. It includes not only expert opinions from a number of psychiatrists (including IA’s treating psychiatrist) but also evidence as to IA’s own communications as to the present litigation and as to his claim for compensation (from which there is ample basis to assess his capacity to conduct or provide instructions in relation to the proceedings in which his claim for compensation is brought). There is also material in the evidence going to other aspects of his personal circumstances.

5. [149]

   As to the threshold question, whether IA is capable of managing his affairs in relation to the compensation claim, it is well recognised that the test as to capacity is “issue specific” (see Masterman-Lister v Brutton & Co [2003] 1 WLR 1511; [2002] EWCA Civ 1889 at [74]; Dalle-Molle v Manos (2004) 88 SASR 193; [2004] SASC 102; and more recently Re WS [2017] NSWSC 745 at [25], citing Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [174]-[175]).

6. [150]

   In Gibbons v Wright (1954) 91 CLR 423 at 437, the principle was expressed as follows:

7. [151]

   Here, having regard to the limited management order that is now sought, the question of capacity relates solely to the conduct of litigation. In Dalle-Molle, Debelle J posed the relevant question (at [20]) as being whether the person has the capacity to give “sufficient” instructions to take, defend or compromise legal proceedings – “sufficient”, in this context meaning instructions of a quantity, extent or scope adequate for the purpose or object of those instructions. His Honour said (at [22]):

8. [152]

   Debelle J accepted (at [27]) that evidence of the capacity to make other decisions which have legal consequences and to conduct ordinary day to day affairs would be relevant but considered that it must be weighed with the other evidence adduced. Further, the fact that a person was vulnerable to exploitation or prone to rash or irresponsible decisions might be relevant to a determination of the question whether that person was able to give sufficient instructions but it must be considered with other relevant evidence.

9. [153]

   His Honour noted 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. Accordingly, in a complex matter it may be necessary for careful advice and explanation to be given and for there to be time for consideration by the litigant. His Honour said (at [24]):

10. [154]

    According to his Honour, the requisite level of understanding of legal proceedings would involve an ability “to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which is of course but one of the possible outcomes” (at [26]).

11. [155]

    In Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249, Handley JA (having referred (at [33]) to the comments of Dixon CJ, Kitto and Taylor JJ in Gibbons v Wright) considered (at [35]) that the test of capacity for a litigant in person would be greater than that for a litigant retaining a solicitor.

12. [156]

    More recently, in Slaveski v Victoria (2009) 25 VR 160; [2009] VSC 596, Kyrou J posed a number of questions that his Honour considered might be relevant to the determination as to whether a self-represented plaintiff has the requisite capacity to conduct his or her legal proceedings (see [32]; to which Lindsay J had regard in Re WS at [31]). Those include matters such as whether the person understands the factual framework for his or her claims and the type of evidence required to succeed; is capable of understanding what is relevant to the proceeding and what is not relevant when those matters are explained; is capable of assessing the impact of particular evidence on the litigant’s case; is able to understand the Court processes and the basic rules for conducting the case when those matters are explained; is able to understand court rulings when the matter comes to a hearing and the rulings are explained and is capable of complying with them and directions given by the judge; is capable of understanding the roles of counsel, instructing solicitors and witnesses; is able to control his or her emotions and behave in a non-abusive and non-threatening manner when events do not go his or her way during the hearing; has an insight into the possible adverse consequences of his or her behaviour in court; is capable of understanding the possibility that he or she could lose the case and the risks or consequences if that were to occur; is capable of assessing any settlement proposal on its merits having regard to the state of the evidence, submissions and other developments in the proceedings at the time the proposal was made. Other matters relevant to take into account are the risk that the stress and pressure of the litigation might cause harm to the litigant and whether self-represented litigant would be in a position to conduct the matter in a way that facilitates the just, quick and cheap resolution of the real issues in dispute.

Determination

1. [157]

   I have no doubt that IA is incapable of managing his claim for compensation, whether as a litigant in person or (if he were again to obtain legal representation) as a plaintiff instructing legal representatives in the conduct (including any potential settlement) of his case. I do not consider that IA is capable of conducting the balance of the District Court proceedings (the assessment of damages) in a balanced and objective way. On any view of the matter he has a wholly unrealistic expectation as to the quantum of his claim and has demonstrated in his correspondence an unwillingness to contemplate any settlement for a lesser amount.

2. [158]

   The medical evidence overwhelmingly establishes that IA does not have capacity to conduct litigious proceedings: he is thought disordered; rigid in this thinking; has grandiose ideas; exhibits delusional thinking and paranoia; and is unable to process or consider ideas inconsistent with his own views. However his condition is diagnosed (whether as Schizophrenia or as a Major Depressive Disorder with or without pyschosis), all the psychiatrists are in agreement that he now lacks capacity to conduct legal proceedings and there is no prognosis that this will improve.

3. [159]

   Even accepting, as Dr Jungfer quite fairly indicated was a concern to her when she declined to re-examine IA and provide an updated report, that Dr Jungfer’s assessment of IA may be negatively coloured by her experience of what she perceived as his harassment or intimidation via emails and attendances at her consulting rooms, I considered Dr Jungfer’s evidence to be given in an objective and balanced fashion. Her reasoning as to the tests of capacity was considered to be fair by IA’s own treating psychiatrist and her conclusions that IA lacks capacity are now supported by Dr Smith (as well as by Dr Roberts). Moreover, her conclusions are more than amply supported by the tone and content of the email communications sent by IA (to multiple persons at a time and often a number of times throughout the same day and night).

4. [160]

   IA has demonstrated a continuing inability to understand or accept information relevant to the legal proceedings that are on foot. That is most clearly demonstrated by his inability to understand (or accept) the outcome of his appeal proceedings and his insistence (to all and sundry) that the proceedings in the Equity Division do not exist and are a fraud. I agree with Dr Jungfer’s assessment as to his rigidity of thinking and inability to take on and consider information, propose alternatives to the decisions he forms and to reason as to the risks and benefits of particular options that may be available to him. He clearly does not appreciate the consequences of his conduct in relation to the delay in resolving his claim for compensation.

5. [161]

   Similarly, although Dr Roberts did not medically examine IA in order to assess his capacity, I am satisfied that his assessment of IA accords with all the evidence before me of IA’s conduct. His reasons were logical having regard to the material before me.

6. [162]

   Finally, as to Dr Smith, I have no reason not to accept his assessment that IA now definitely lacks capacity. Insofar as Dr Smith’s earlier conclusion to the contrary was based on an understanding given to him by IA as to what had transpired in the Court of Appeal proceedings (and in particular that a finding had been made by Payne JA of IA’s capacity), the assumption on which that earlier opinion was based has been shown to be flawed. Insofar as it was based on Dr Smith’s assessment that IA had a “good grasp” of the legal issues, that too must now be seen as flawed. I have considerable doubts as to the opinion expressed by Dr Smith (and for that matter Dr Ahmed and Dr Ablante) as to IA’s capacity as at 2015/2016 to conduct legal proceedings (having regard to what has emerged since then) but that is not the issue before me. The question is as to IA’s capacity now to conduct legal proceedings and manage his claim for compensation. There is no doubt in my mind that he does not have such capacity. Posing the questions considered in Slaveski and applying the tests adnumbrated by Dr Jungfer, there can be no other conclusion.

7. [163]

   IA also does not exhibit an understanding or willingness to engage in appropriate conduct in the course of litigation. He has persisted in sending email communications direct to chambers in circumstances where he has been told not to do so (there was, for example, an email of 2 February 2017 at 10:26am sent by the associate to Rein J – part of Exhibit A – informing IA that it was inappropriate for him to write to the judge directly; a direction with which IA did not comply) and has persisted in doing so even after the relevant judge has ceased dealing with the matter (see his ongoing communications with Payne JA’s chambers). His conduct in failing to comply with Court orders (because of an assertion that they were a fraud or that it was a “set-up”), and in urging Dr Smith not to attend the hearings when he had been subpoenaed to do so, does not give any confidence that IA will be able to conduct his compensation claim henceforth in an appropriate manner. Nor for that matter does the tenor of some of his correspondence (references to legal representatives selling their mothers on the street, for example).

8. [164]

   I have taken into account IA’s emphatically expressed view that he does have capacity and his wish to conduct his own proceedings. I nevertheless share the views expressed by Lindsay J as to the unlikelihood of the compensation proceedings being finalised in the absence of the making of protected management orders of the kind I now propose to make. It is unfortunate, to say the least, but I suspect an inevitable consequence of IA’s psychiatric condition and thought disorder, that IA will no doubt not appreciate that the making of such orders is in his best interests insofar as it will permit his compensation claim finally to be determined.

Orders

1. [165]

   For the above reasons I make the following orders:

   1. (1)

      I declare, pursuant to s41 of the NSW Trustee and Guardian Act 2009 (NSW) (the Act), that the defendant [IA] is incapable of managing his affairs in relation to his claim for compensation and conduct of District Court proceedings case number 767 of 2009 (the proceedings) arising from a motor vehicle accident which occurred on 2 July 2007.

   2. (2)

      I order pursuant to ss 40 and 41(1)(a) of the Act that that part of the defendant’s estate relating to the defendant’s claim for compensation and conduct of the proceedings be subject to management under the Act.

   3. (3)

      I order pursuant to s 41(1)(b) of the Act that the NSW Trustee be appointed as manager of that part of the defendant’s estate relating to his claim for compensation and conduct of the proceedings.

2. [166]

   No order was sought by TA as to the costs of these proceedings. I therefore make no order as to the costs of the proceedings.