Macura v Sarasevic & Anor

HIS HONOUR: By notice of motion filed on 24 April 2020 the appellant (Mr Branko Macura) seeks an order that the court “dispense with the need for the applicant to require a tutor”.

The background to this application can be stated fairly shortly. On 8 January 2020 the appellant filed a notice of appeal from orders of Ward CJ in Eq in which her Honour, amongst other things, declared that the appellant and the respondents had reached a settlement agreement as set out in short minutes of order signed by the parties on 20 March 2018 and formalised in short minutes of order signed by the parties’ solicitors on 23 March 2018 (Macura v Sarasevic [2019] NSWSC 1409). Her Honour recorded that the respondents are the executors of the will of the late Mr Milorad Adzic. Her Honour recorded that Mr Macura had instituted proceedings in 2017 in which he claimed that the deceased had made a gift to him donatio mortis causa of property owned by the deceased at Liverpool. Alternatively, Mr Macura sought a family provision order out of the estate or the notional estate of the deceased on the basis that he and the deceased had been in a de facto relationship.

The proceeding before the primary judge was an application by the respondents to enforce an agreement arrived at during a mediation for the settlement of the appellant’s claims for payment of $100,000 inclusive of costs. The appellant claimed that he lacked capacity to enter into the agreement and that the respondents had actual or constructive knowledge of his incapacity. The primary judge concluded:

On 18 April 2019, shortly before the commencement of the hearing before the primary judge, the solicitors then acting for the appellant applied for an order for the appointment of a tutor to represent the appellant in the proceedings (Judgment [41]). The applicant was not opposed by the respondents and a tutor, Mr Lawrence Myers, was appointed on that day. The primary judge said (at [45]):

The application before the primary judge had been supported by a report of a psychiatrist, Dr Napper, dated 17 April 2019 in which he stated:

On 13 November 2019 Mr Macura filed a notice of intention to appeal and, as noted above, on 8 January 2020 he filed a notice of appeal. He did not then have legal representation. He told me that the notice of appeal was prepared with the assistance of a friend. As explained below, the grounds of the notice of appeal are expressed lucidly and contain logical and relevant argument. In support of his notice of motion, Mr Macura deposed:

In a report dated 15 April 2020 Dr Napper stated:

Both Mr Macura and Dr Napper were cross-examined on the present application by counsel for the respondents. Mr Macura was cross-examined in relation to his asserted beliefs as to his Vietnam War service. The substance of his evidence in that regard is consistent with matters asserted in his grounds of appeal. He maintains the truthfulness of his service in the Australian Defence Force and of his statements as to his Vietnam service. He refers in his grounds of appeal to what he calls “newspaper evidence” dated 12 June 2019 where the Veterans Affairs Minister is reported as having acknowledged that records of the ADF are not accurate in relation to Vietnam veterans. Dr Napper stated that when asked about his war service Mr Macura had advanced the same explanation for the absence of records from the Australian Defence Force of his alleged service.

Mr Macura was not cross-examined as to his evidence that since 2019 he had stopped taking medication which had caused side effects which he said had caused issues as to his understanding and ability to give proper instructions. Dr Napper was cross-examined at some length as to what he had been told by Mr Macura as to his Vietnam War service. Dr Napper said in substance that if it were accepted that Mr Macura had not engaged in war service in Vietnam, as he has said he did, then he was either deluded or was lying. The choice between those alternatives was not one which he, as a psychiatrist, could make. But Dr Napper added that if Mr Macura were deluded, then such an isolated delusion about Vietnam War service would not be associated with more general cognitive impairment. He cited criteria 6(c) of DSM 5 which he said stated that apart from the impact of the delusions or its ramifications, the presence of delusions will not materially impair cognitive functioning.

Dr Napper was not challenged on his opinion expressed in his report of 15 April 2020 that when he reviewed Mr Macura on 11 March 2020 Mr Macura was able to give Dr Napper a clear account of what the court case was about and that he, in Dr Napper’s opinion, had the capacity to instruct legal representatives. Dr Napper found no evidence of cognitive impairment. I accept that opinion.

The respondents opposed the relief sought. Although they have not filed a notice of motion to seek to dismiss the appeal as incompetent, they submit that unless a tutor is appointed within a reasonable time the appeal ought to be dismissed.

Even if the appointment of a tutor were necessary for Mr Macura to be able to pursue the appeal, it is not clear to me that that result would necessarily follow (Mao v AMP Superannuation Limited [2015] NSWCA 252 (Mao No. 1) at [58] and Mao v AMP Superannuation Limited [2018] NSWCA 72 (Mao No. 2) at [2]).

The respondents submitted:

Assuming it is correct that the appellant’s continued insistence of his service in Vietnam is delusional, it does not appear to me that any such delusion would materially affect his ability to conduct the issues arising on the appeal.

The appellant’s grounds of appeal in relation to his alleged incapacity in March 2018 are in substance as follows:

Other grounds of appeal relate to the evidence given in relation to a comment said to have been made by Mr Macura’s barrister (Mr Cominos) at the commencement of the mediation and what are asserted to be the consequences of Mr Cominos’ not being called to give evidence at the hearing before the primary judge. Challenge is made to the findings that the respondents either did not know or did not have constructive knowledge of his incapacity.

Under the heading “Prejudice suffered by the plaintiff due to claims to the truthfulness of the plaintiff in the proceedings and the weight placed on this by the court”, the grounds of appeal include that Mr Macura maintains the authenticity of his account of his Vietnam War service and asserts that his character was unfairly prejudiced at the hearing at first instance where the court placed little weight on his evidence in those circumstances, including his version of events at the mediation.

Whether these grounds of appeal are right or wrong is not the present issue. Their articulation suggests no current incapacity. But I take into account that Mr Macura had assistance from a friend in the preparation of those grounds. I do not know whether he will have legal assistance in the appeal, but it can at least be assumed that if not, he would have similar assistance, at least in the preparation of written material.

The primary judge recorded (Judgment [218]) that:

If it be the case that Mr Macura’s assertions as to his service in the Vietnam War and exposure to Agent Orange are delusional, it does not follow that he lacks the capacity to conduct his appeal either with or without legal representation. It does not appear that he lacks the capacity to understand advice that he may receive or to provide informed instructions. The truthfulness of Mr Macura’s assertions as to his service in the Vietnam War may have been highly relevant to an assessment of his credit in the proceedings before the primary judge. But the appeal can be expected to be determined on the basis of the record at trial and the primary judge’s findings. Whether the appellant’s assertions as to his service in Vietnam are truthful, delusional, or a deliberate fabrication, would have no direct relevance to any of the issues that would arise on appeal that I can see.

The respondents submitted that the primary judge’s finding of incapacity extends to the proceedings in this court. The respondents cited in support of this submission Mao (No. 2) at [9]. I doubt that that is so. Mao (No. 2) concerned an appeal from an order of the Equity Division made on the court’s own motion pursuant to s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW) that the NSW Trustee be appointed as manager of so much of the estate of the plaintiff as pertained to her right, title and interest in proceedings that she had brought. In Mao (No. 2) the proceedings in the Equity Division remained on foot. The court (Basten and Leeming JJA) said (at [9]) that the Chief Judge’s finding of incapacity must be understood to extend to the proceedings in this court (at [9]). By contrast, in this case the proceedings in the Equity Division have concluded.

In Mao (No. 1) the Court of Appeal (Beazley ACJ, Emmett and Leeming JJA) said (at [58] and [59]):

It follows that the proceeding commenced by the notice of appeal in this court is a separate proceeding from the proceeding in the Equity Division that has been finalised. It does not appear to me that the order of 18 April 2019 for the appointment of a tutor has any direct application to the appeal brought by the applicant. The present case stands in contrast to the circumstances in Mao (No. 2). The earlier order certainly raises a question about Mr Macura’s capacity to commence and to continue with this appeal. But the evidence adduced on the application shows that he has that capacity.

The primary judge observed (at [45]) that her (unopposed) finding of incapacity as at 18 April 2019 involved no finding of Mr Macura’s capacity to give instructions at an earlier time. Nor does it preclude a finding that at a later time Mr Macura has capacity to commence and to continue with the appeal.

I doubt that it is necessary to dispense with the operation of r 7.14(1), although that could be done pursuant to s 14 of the Civil Procedure Act 2005 (NSW) (Mao (No. 1) at [59]; Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002; [2018] NSWCA 306 at [20]).

Had the respondents sought a stay or dismissal of the appeal, the present issue could be resolved by dismissing such an application. In the absence of such a process, and in case I am wrong as to the operation of the order of 18 April 2019 to the appeal, the appropriate order is:

I make that order.

On the question of costs it appears to me that the appropriate order is that the costs of the application be the appellant’s costs in the appeal, and I so order.