The Owners Strata Plan 21372 v Banovic

On 15 March 2016 the plaintiff, the Owners Corporation of Strata Plan 21372, filed a motion seeking orders that the first defendant, Mr Joe Banovic, be held in contempt of court for failing to comply with certain interlocutory orders made by me on 1 December 2015.

Mr Banovic is 85 years of age. He lives alone in a unit owned by his daughter (the second defendant) in the strata complex. In essence, the orders made on 1 December 2015 required Mr Banovic to take certain steps to facilitate, and not to hinder or obstruct, the carrying out of certain works on the balcony to the unit in which he lives.

The motion for contempt was listed for hearing to commence yesterday. When the matter was called on, the first defendant, for whom a tutor was appointed on 1 August 2016, applied to have the Court first deal with a motion seeking a permanent stay of the contempt motion. Mr Geary, solicitor, who appears for the first defendant, explained that the basis of the stay was that the first defendant was not fit to be tried for contempt. He submitted that the issue of fitness ought to be determined as a preliminary matter. Mr Davie of counsel, who appears for the plaintiff, informed the Court that it was also the plaintiff's position that the issue of fitness be determined as a preliminary matter. It was also common ground that if the Court decided that Mr Banovic was not fit to face the alleged contempt charges it would be appropriate for the contempt motion to be permanently stayed.

These positions were maintained in the face of some expressions of doubt on my part as to whether the principles concerning fitness to be tried were truly applicable in civil contempt proceedings, notwithstanding that such proceedings share some of the characteristics of criminal proceedings (see Witham v Holloway (1995) 183 CLR 525 at 534 and CFMEU v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 at [42]-[45]). In view of the common position of the parties I acceded to the application to proceed with the fitness issue as a preliminary matter. Leave was granted for the filing of the motion.

The first defendant and the plaintiff were also in agreement that the Mental Health (Forensic Provisions) Act 1990 (NSW) did not apply in the present circumstances; and they agreed that the test to be applied on the question of fitness was as stated by Smith J, in the context of a criminal trial proper, in R v Presser [1958] VR 45 at 48. Smith J stated that the question was whether the accused, because of a mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. His Honour continued:

Mr Geary submitted that the evidence in the present case, and the fact that a tutor was appointed on 1 August 2016 on the grounds that Mr Banovic was a person under legal incapacity, led to the conclusion that the minimum standards required to be met in order to avoid unfairness or injustice to Mr Banovic were not satisfied. Mr Geary emphasised in particular the inability to obtain instructions from Mr Banovic, and his apparent lack of understanding of the nature of the proceedings generally.

Before turning to the detail of the evidence, something should be said about the appointment of the tutor and the circumstances that led to the appointment.

The contempt motion was made returnable on 24 March 2016. There was no appearance by Mr Banovic (who was not then legally represented in the proceedings) on that day. An order was made for him to attend Court on 31 March 2016 for the purpose of answering the motion. He did not appear on that day. An arrest warrant was issued (the operation of which was stayed for a period) requiring Mr Banovic to be brought to Court on 12 April 2016 at 9.30am.

When the matter was called on that day there was initially no appearance by Mr Banovic. The Court was informed by Sheriff's Officers that they had attended Mr Banovic's residence but were unable to contact him. However, at about 9.34am Mr Banovic himself appeared in Court, unrepresented. Attempts were then made by me to explain to Mr Banovic the nature of the contempt proceedings that were being brought against him. That attempt continued for a while. As can be seen from the transcript of the proceedings on that day (which is in evidence on the present application) I became concerned that Mr Banovic was not comprehending what was taking place. Mr Davie, who was appearing for the plaintiff on that occasion as well, apparently shared my concern. The appointment of a tutor was suggested by Mr Davie. The matter was stood down to enable inquiries to be made about obtaining some pro bono legal assistance for Mr Banovic. After a while a barrister, Mr Abdulhak, appeared and offered to try to assist Mr Banovic. Mr Abdulhak had a conference with Mr Banovic. I note that Mr Abdulhak told the Court that there were "potential issues of capacity to really appreciate the nature of the proceedings" and that he had difficulty traversing the issues "and the relevance of orders that were made in December." The contempt motion was adjourned to 10 May 2016.

In the meantime, Mr Geary (of Salvos Legal) became involved. He swore an affidavit on 29 June 2016. That affidavit, and an affidavit of a relatively formal nature affirmed by Ms Barbara Ramjan on 28 July 2016, were relied upon by Mr Geary on the application made on 1 August 2016 for the appointment of Ms Ramjan as a tutor for Mr Banovic in the proceedings. The appointment was not opposed by the plaintiff. Mr Geary's affidavit, which was also read on the present application, included the following:

A report dated 21 September 2016 prepared by Ms Ramjan was also read on the present application (apart from paragraph 8). Ms Ramjan is not medically qualified, but she possesses considerable experience in dealing with issues of mental incapacity. She has served for about 13 years, albeit some time ago, as a member of the Guardianship Tribunal of New South Wales. Her report includes the following:

Ms Ramjan affirmed a further affidavit on 9 November 2016. This affidavit was also read on the present application (apart from paragraphs 12 to 18). She deposed that she affirmed the contents of her earlier report and maintained the opinions expressed therein. She also deposed that she had made several attempts to telephone Mr Banovic without success, and that even when he answered the phone he did not say anything to her. Ms Ramjan continued (at paragraphs 6 to 9 of her affidavit):

The report of Professor Brodaty mentioned by Ms Ramjan was also read. This report, dated 22 August 2016, is essentially based on information contained in Mr Banovic's file at the Prince of Wales Hospital. It appears that Mr Banovic had been admitted there in 2009 by police acting on a magistrate's order made on the request of the Acute Care Team. On that occasion a diagnosis was made of mild cognitive impairment with paranoid ideation in the context of cerebrovascular disease and type II diabetes. There was also a suggestion that there was an early vascular dementing process. I note that an appointment had been made for Professor Brodaty to visit Mr Banovic at his unit on 22 August 2016. However, Mr Banovic was either not at home or did not answer the doorbell when the Professor arrived. Professor Brodaty's report includes the following:

Finally, a report of Dr Robert Lewin (obtained by the plaintiff's solicitors) dated 21 December 2016 was read. Dr Lewin reviewed various documents including the medical records relied upon by Professor Brodaty, and Professor Brodaty's report itself, as well as Ms Ramjan's affidavit of 9 November 2016. Dr Lewin expressed the opinion that a careful medical examination of Mr Banovic is required. Noting that he had not examined Mr Banovic, Dr Lewin stated, however, "that the various data raised significant questions and doubts regarding Mr Banovic's capacity to understand, to follow and to participate in legal proceedings." Dr Lewin continued:

None of the witnesses (including Ms Ramjan who was present in Court) were required for cross examination.

Mr Geary accepted that there was no formal diagnosis of Mr Banovic's mental condition and that the evidence was imperfect. He submitted, however, that there was at least evidence that Mr Banovic was suffering from a paranoid condition and the evidence of Ms Ramjan who has considerable experience in the field (and to a lesser extent his own evidence) demonstrated that Mr Banovic had a significant mental incapacity that precluded him from adequately understanding the nature of the proceedings, and precluded him from giving instructions on the issues raised by the contempt motion. Mr Geary submitted that the minimum requirements referred to in R v Presser were not satisfied. He emphasised that he was unable, for example, to obtain instructions from Mr Banovic going to the key question of Mr Banovic's knowledge of the orders made on 1 December 2015. Mr Geary further submitted that the order for the appointment of a tutor, which continues in force and is based on the notion that Mr Banovic is a "person under legal incapacity", provides another basis to conclude that the R v Presser minimum requirements were not satisfied. He submitted that Mr Banovic fell within paragraph (e) of the definition of “person under legal incapacity” found in s 3 of the Civil Procedure Act 2005 (NSW) as an incommunicate person, unable to express his will with respect to the contempt motion and the proceedings generally.

Mr Davie submitted that there is a starting presumption that someone is fit to stand trial and that the onus was on Mr Banovic to displace it. Mr Davie pointed out that there was no psychiatric opinion that Mr Banovic was unfit. Mr Davie further submitted that although there is evidence about difficulties in communicating with Mr Banovic and obtaining instructions from him, the evidence did not disclose why that was the case. He submitted that the answer to the question could not be known unless Mr Banovic is medically examined. He said there was a paucity of evidence, and the Court was not in a position to reach a firm conclusion in relation to fitness. Mr Davie also submitted that the test for appointing a tutor differs from the R v Presser test, so the mere fact that there is a tutor is not sufficient reason to conclude that Mr Banovic lacks fitness.

I accept that last submission. Even where the basis for the appointment of a tutor is a mental disability or incapacity, in determining the fitness of a person to face contempt charges it remains necessary in my view to consider the totality of the evidence and then make an assessment of fitness.

The evidence given by Mr Geary and Ms Ramjan was not the subject of any challenge. I have considered the whole of their evidence, the more salient parts of which are referred to above.

It is noteworthy that:

Whilst neither Mr Geary nor Ms Ramjan are qualified to give expert medical opinions, they each possess, in different ways, considerable experience in dealing with persons with mental health issues and intellectual impairments or incapacities. I accept the evidence of each of them and consider that such evidence is entitled to be afforded significant weight on the question of Mr Banovic's fitness to face the contempt charges.

The evidence given by Mr Geary was the central basis of the application made last year for the appointment of a tutor. Such an appointment may be made in respect of a person under legal incapacity. A person under legal incapacity is defined in s 3 of the Civil Procedure Act to mean any person who is under a legal incapacity in relation to the conduct of legal proceedings and includes, inter alia, a person who has such a mental disability that he or she is unable to express his or her will with respect to his or her affairs. Further, Uniform Civil Procedure Rules 2005 (NSW), r 7.13 provides that in Division 4 of Part 7 of the Rules a person under legal incapacity includes a person who is incapable of managing his or her affairs.

The clear basis of the application for the appointment of a tutor was that Mr Banovic did not understand the nature of the proceedings and it was not possible to obtain proper instructions from him. As I have already mentioned, the appointment of a tutor was not opposed by the plaintiff. The Court considered that the appointment was warranted in the circumstances. Apart from Mr Geary's evidence, account was taken of the events of 12 April 2016 when Mr Banovic appeared, unrepresented. Having sought to engage Mr Banovic about the nature of the contempt motion brought against him it readily became apparent that Mr Banovic had difficulty in following what was taking place. This gave rise to concern on my part (and on the part of Mr Davie) about his level of understanding. Notwithstanding that there seemed to me to have been a deterioration in Mr Banovic's level of understanding since December 2015, I gained no impression that Mr Banovic was behaving in other than a genuine fashion (compare Prothonotary of the Supreme Court of New South Wales v Chan (No 15) [2015] NSWSC 1177 at [41] and [44]).

Since the appointment of Ms Ramjan as tutor, the evidence has been augmented by her evidence as referred to earlier, and also by the rather limited evidence contained in the reports of Professor Brodaty and Dr Lewin.

It is correct that there is no firm medical evidence, or diagnosis, of a particular condition suffered by Mr Banovic. The closest the expert medical evidence comes to a particular diagnosis is Professor Brodaty's rather tentative suggestion that Mr Banovic has paranoid ideation. However, the unchallenged evidence of Mr Geary and of Ms Ramjan supports the conclusion that Mr Banovic suffers from an impaired mental capacity which causes him to lack a proper understanding of the nature of the proceedings (in particular the contempt charges brought against him) and renders him incapable of providing instructions concerning the proceedings, including the contempt motion. Having considered the entirety of the evidence I am satisfied that such conclusion should be drawn notwithstanding the lack of a firm medical diagnosis.

The medical evidence, limited as it is, seems to me to be consistent with the opinions proffered by Mr Geary and Ms Ramjan. There is evidence of at least mild cognitive impairment and a suggestion of an early vascular dementing process in 2009. Professor Brodaty suggests Mr Banovic may have paranoid ideation and Dr Lewin agrees (without reaching any firm conclusion) that the data he has analysed raises significant questions and doubts regarding Mr Banovic's capacity to understand, to follow, and to participate in legal proceedings.

The opinions given by Mr Geary and Ms Ramjan as to a lack of understanding are to an extent reinforced by Mr Banovic's behaviour in Court on 12 April 2016. So, too, is Ms Ramjan's evidence about Mr Banovic's fixation on what appears to be a delusion about drug dealing in the block of units. As I have said, I do not think that Mr Banovic's behaviour on that occasion was anything other than genuine. Mr Davie eschewed any suggestion to the contrary.

In my opinion, adapting the test laid down by Smith J in R v Presser (supra), the minimum standards required to be met before Mr Banovic could face the charges for contempt without unfairness or injustice to him have not been satisfied. I do not think that he is able to understand the nature of the contempt charges brought against him. I do not think he possesses a general understanding of the contempt proceedings and I do not think that he is capable of giving necessary instructions concerning the facts or issues relevant to the contempt proceedings.

The presumption, which undoubtedly exists, that Mr Banovic is fit to face the charges for contempt has in my view been rebutted by the evidence adduced on this application. If there was an onus cast upon Mr Banovic in that regard, it has been discharged. I do not consider that Mr Banovic is fit to face the charges of contempt made against him. It follows that the plaintiff's motion for contempt should be permanently stayed.

Finally, I should note that Mr Davie submitted that it would be a startling conclusion that someone can thus be effectively placed "beyond the law". However, it could be said to be at least as startling that the law would permit a hearing of contempt charges to proceed against a person (who would thereby be potentially subject to punishment including imprisonment) in circumstances where the person, by reason of an impaired mental capacity, was not able to understand the nature of the charges or the proceedings generally and was not able to give necessary instructions. The policy of the law as reflected in the test laid down in R v Presser (supra), which the parties accepted was applicable in the present case, is that in these circumstances fairness and justice to the accused person requires that the hearing not proceed (see also Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [62] to [64]).

The Court orders that the plaintiff's Notice of Motion filed on 15 March 2016 be permanently stayed.