IA v TA

1. [1]

   THE COURT: On 20 July 2015, orders were made by the primary judge under s 41 of the NSW Trustee and Guardian Act 2009 (NSW) appointing the second respondent, the NSW Trustee and Guardian, as the applicant’s financial manager.

2. [2]

   On 3 August 2015, the second respondent was appointed as the applicant’s tutor to conduct legal proceedings in the District Court on his behalf.

3. [3]

   On 27 November 2015, the primary judge dismissed an application to discharge those earlier orders and declined to make orders under s 86 of the NSW Trustee and Guardian Act: A v A [2015] NSWSC 1778.

4. [4]

   The applicant seeks leave to appeal against the orders of the primary judge made on 20 July, 3 August 2015, 12 October 2015 and 27 November 2015 (although no substantive orders were made on 12 October 2015).

5. [5]

   A critical question on this appeal is whether, in the circumstances of this case, the primary judge was required to permit the applicant to call evidence from his treating psychiatrist and to make arrangements to hear that evidence.

6. [6]

   In this difficult matter the Court has been greatly assisted by the very helpful submissions of Mr Hooke SC who appeared with Mr Masur for the applicant and Mr Fitzsimmons who appeared with Ms Warren for the first respondent.

7. [7]

   For the reasons which follow, we have concluded that the primary judge was required to permit the applicant to call evidence from his treating psychiatrist and to make arrangements to hear that evidence. The failure to do so was an error; leave to appeal should be granted, the appeal allowed in relation to the orders dated 20 July, 3 August and 27 November 2015 and the matter remitted to the Equity Division to determine in accordance with these reasons.

Relevant facts

1. [8]

   The applicant was injured in a motor vehicle accident on 2 July 2007 and suffered neck and head injuries. He commenced proceedings against TA (the first respondent to these proceedings) on 26 February 2009 in the District Court. At all relevant times the first respondent has been represented by his insurer.

2. [9]

   The first respondent has admitted liability for the accident and his insurer has made substantial interim payments of compensation to the applicant. The District Court proceedings to assess damages, however, have not progressed very far. In the course of those District Court proceedings the applicant has instructed 10 different firms of solicitors.

3. [10]

   The District Court proceedings were listed for hearing on 22 November 2010 and 20 May 2013, but were adjourned on both occasions at the applicant’s request. As a result, the matter became subject to case management in the District Court. On 8 September 2014, the third listed hearing date, Sorby DCJ referred the applicant to the pro bono assistance panel.

4. [11]

   On 7 October 2014, the applicant filed a notice of change of solicitors and Carroll & O’Dea became his solicitors on the record. Mr Stone of Senior Counsel was briefed by Carroll & O’Dea. At some time shortly thereafter, Mr Stone SC and a solicitor, Mr Panagoda from Carroll & O’Dea, conferred with the applicant. Mr Stone SC apparently became concerned that the applicant lacked capacity to provide instructions. Arrangements were made for the applicant to be seen by a consultant psychiatrist, Dr Jungfer.

5. [12]

   Dr Jungfer, who was not the applicant’s treating psychiatrist, had earlier seen the applicant, in 2009, for the purpose of preparing a medico-legal report for use in the applicant’s damages proceedings in the District Court. Dr Jungfer saw the applicant on one occasion and on 18 November 2014 produced a second report. It is this second report which is critical in the present proceedings.

6. [13]

   On 1 and 18 December 2014, a hearing took place before her Honour Judge Norton SC in the District Court on the applicant’s motion seeking an advance interim payment to be made by the insurer of the first respondent to the applicant on hardship grounds.

7. [14]

   The hearing of that motion became the occasion for a debate about whether a tutor should be appointed for the applicant in the District Court proceedings under r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW). At that hearing, Dr Jungfer’s report of 18 November 2014 was tendered. That report concluded that the applicant lacked capacity to provide legal instructions. Relevantly, it provided:

8. [15]

   On 1 December 2014, the tutor issue having been raised, the matter was stood over part heard to 18 December to give the applicant time to obtain his own medico-legal report.

9. [16]

   On 18 December 2014, pursuant to a request from Norton SC DCJ, Ms Phang, a representative of the NSW Trustee and Guardian, also appeared. Her Honour recorded in her judgment that Ms Phang informed the Court that the NSW Trustee and Guardian would not become involved in the applicant’s case unless the Supreme Court first made a financial management order pursuant to s 41 of the NSW Trustee and Guardian Act, after which time it could direct the NSW Trustee and Guardian to act as tutor for the applicant in the District Court proceedings.

10. [17]

    On 18 December 2014, the applicant tendered two letters. The first, dated 4 December 2014, was written by Dr Selwyn Smith, the applicant’s treating psychiatrist. The second, dated 15 December 2014, was written by Dr Augusto Tablante, the applicant’s treating general practitioner. Neither letter was in the form of a report and neither did more than make bare assertions that the applicant had the capacity to instruct counsel and that he did not need a tutor.

11. [18]

    Norton SC DCJ published reasons for her judgment on 4 February 2015. She accepted the evidence of Dr Jungfer in that judgment, preferring it over the letters of Dr Smith and Dr Tablante. Norton SC DCJ determined that the applicant was unable to give instructions in the District Court matter and therefore it would not be appropriate to deal with the question of making an interim hardship payment until a tutor had been appointed. As, on the evidence before her, no person was willing at the time to become the applicant’s tutor, Norton SC DCJ declined to make any order and noted that the first respondent’s solicitors would seek instructions to approach the Supreme Court to have a financial management order made.

12. [19]

    Since 4 February 2015, the matter has been twice adjourned in the District Court. On 3 and 19 June 2015, the matter came before Judge McLoughlin SC, who stated that he did not believe the District Court had power to appoint a tutor in the absence of a willing tutor and that the issue should be determined by the Supreme Court.

13. [20]

    On 21 January 2015, the first respondent commenced proceedings in the Protective List of the Equity Division by filing a Summons seeking the making of a protected estate management order under s 41 of the NSW Trustee and Guardian Act. The orders sought were as follows:

14. [21]

    On 24 June 2015, the first respondent filed an amended Summons in proceedings no. 2015/19513. The only order sought in that amended Summons was:

15. [22]

    On 7 July 2015, the applicant filed a Summons in the Common Law Division of the Supreme Court (proceedings no. 2015/186082), seeking an order transferring the motor accident proceedings from the District Court to the Supreme Court. By an amended notice of motion also filed on 7 July 2015, the applicant also sought orders for the payment to him by the first respondent of further interim payments of compensation.

16. [23]

    Section 40 of the NSW Trustee and Guardian Act provides:

17. [24]

    Section 41 of the NSW Trustee and Guardian Act provides:

18. [25]

    Section 86 of the NSW Trustee and Guardian Act provides:

19. [26]

    It will be recalled that by 20 July 2015, the only order being sought by the first respondent on the amended Summons was that a tutor be appointed for the applicant in his CTP legal proceedings in the District Court.

20. [27]

    There was also the Summons filed by the applicant in the Common Law Division seeking the transfer of the District Court proceedings to the Supreme Court.

21. [28]

    The two Summonses were heard together by the primary judge on 20 July 2015. No doubt because the matter was heard urgently and as part of a busy list, reasons were not given.

22. [29]

    This Court was provided with a transcript of the hearing. The primary judge stated during the hearing that he made the orders he did:

23. [30]

    The primary judge made orders as follows:

24. [31]

    On 3 August 2015, the two Summonses again came before the primary judge. Ms Brouwer from the NSW Trustee and Guardian was present. Ms Brouwer confirmed that the estate management orders were being complied with and the New South Wales Trustee and Guardian was content to be appointed as the applicant’s tutor in the District Court proceeding.

25. [32]

    In the Equity Division proceedings no. 2015/00019513, the primary judge made the following orders and notations on the file on that day:

26. [33]

    In the Common Law Division proceedings no. 2015/186082, the primary judge made the following orders:

27. [34]

    The primary judge noted that he proposed to deal with both the Common Law Division Summons and the Equity Division Summons together on 12 October 2015.

28. [35]

    On 12 October 2015, the proceedings again came before the primary judge. His Honour noted the evidence which was then before him, gave directions permitting further evidence to be filed, and listed both matters for hearing before him on 16 November 2015.

29. [36]

    Submissions were made by the applicant. The primary judge treated those submissions by the applicant as an application under s 86 of the NSW Trustee and Guardian Act to revoke the 20 July 2015 financial management orders and the 3 August 2015 orders appointing a tutor.

30. [37]

    The orders made on 12 October 2015 in the Equity Division proceedings were as follows:

31. [38]

    The orders made on 12 October 2015 in the Common Law Division proceedings were as follows:

32. [39]

    On 16 November 2015, the primary judge heard the application for revocation pursuant to s 86 of the NSW Trustee and Guardian Act. In preparation for the hearing on 16 November 2015 the applicant caused subpoenas to be issued to Dr Smith, Dr Jungfer and a solicitor who had previously represented him, Ms Alubedy. Dr Jungfer attended to give evidence and was cross-examined.

33. [40]

    The only other oral evidence on the hearing was from the applicant’s brother-in-law who testified that he believed that the applicant did not need a tutor and that he was fully capable of managing his affairs.

34. [41]

    The applicant tendered a written report of his treating psychiatrist, Dr Smith, dated 13 February 2015. At the hearing, the applicant also tendered a letter dated 27 October 2015 from Dr Smith in which he explained that because of heavy patient commitments he was unable to appear on 16 November 2015, however, he was available on the following day, 17 November 2015, after 2 pm.

35. [42]

    Dr Smith’s report of 13 February 2015, as corrected on 6 March 2015, may be summarised as follows:

36. [43]

    Although Dr Smith’s report was in evidence, the applicant made it clear he wanted Dr Smith to be called to give oral evidence.

37. [44]

    The primary judge dealt with this application that Dr Smith give oral evidence only obliquely. His Honour said, after Dr Jungfer had been cross-examined by the applicant, that his impression was:

38. [45]

    No further or express reference was made in the transcript to the topic of whether Dr Smith should be permitted to give oral evidence before the primary judge on this application the following day.

39. [46]

    On 27 November 2015, the primary judge delivered his reasons for dismissing the application to revoke the financial management and tutorship orders he had earlier made. He made the following orders:

40. [47]

    Consequential orders were made including orders dismissing the application to the Common Law Division to transfer the District Court proceedings to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW). Those orders provided:

41. [48]

    On 6 October 2015, the applicant filed an application for leave to appeal together with a notice of motion 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 a long list of other orders, including a request for an emergency hardship payment. Gleeson JA dismissed the notice of motion on 16 February 2016: A v A [2016] NSWCA 17.

42. [49]

    On 20 April 2016, the application for leave to appeal came before this Court constituted by Ward JA and Sackville AJA. The Court ordered the appeal should be listed on 20 June 2016 for a concurrent hearing with the application for leave to appeal. Ancillary orders were made referring the applicant to the pro bono panel for assistance. Directions were given by the Court for the filing of an amended draft Notice of Appeal.

43. [50]

    On 11 May 2016, an amended Summons seeking leave to appeal and an amended draft Notice of Appeal were filed in this Court.

44. [51]

    The amended draft Notice of Appeal contained five grounds. Ultimately, Ground 2 was not pressed. The remaining grounds were:

Consideration

1. [52]

   In determining the issues in this appeal, the Court is addressing only the matters raised in the amended Summons seeking leave to appeal, filed on 11 May 2016, and the amended draft Notice of Appeal filed on 11 May 2016. The issues raised by the 6 October 2015 notice of motion were superseded by the issues raised in the amended Summons and amended draft Notice of Appeal and no longer form any part of the proceedings in this Court.

2. [53]

   The Court will not address the various extraneous documents sent directly to the Court by the applicant prior to the hearing. Those documents were not filed with the Registry and no application was made to rely upon those documents. Those documents played no part in this appeal.

3. [54]

   The only matters taken into account by this Court were contained in white appeal books which were before us. The white appeal books contained:

   1. (1)

      the pleadings below;

   2. (2)

      the orders of the primary judge dated 20 July, 3 August and 27 November 2015 and the directions of the primary judge dated 12 October 2015;

   3. (3)

      three affidavits sworn by the applicant, which were read before the primary judge together with the annexed documents (including the report of Dr Smith), Exhibit A1 (the subpoena issued by the applicant to Dr Smith and Dr Smith’s letter to the Court dated 27 October 2015) and Exhibits A2 and A3 (the subpoena to Ms Alubedy and a related email dated 14/11/2015);

   4. (4)

      the first respondent’s evidence before the primary judge on 16 November 2015, comprising two affidavits of Mr Gillis and Exhibit IR-1, being a letter dated 2 March 2015 from Moray & Agnew to Mallos Davis;

   5. (5)

      the second respondent’s evidence below, comprising an affidavit of Ms Brouwer dated 27 October 2015;

   6. (6)

      transcripts of the various hearings before the primary judge; and

   7. (7)

      the primary judge’s orders and published reasons dated 27 November 2015.

4. [55]

   As will be apparent from the foregoing summary and the limited nature of the challenge contained in the grounds of the amended draft Notice of Appeal, there is no occasion for this Court to address most of the issues raised in the detailed reasons of the primary judge.

5. [56]

   Although no point was taken about this matter by any party, the applicant, as a person under a legal incapacity, is prohibited from commencing proceedings, except by way of a tutor: r 7.14(1) of the UCPR. The proceedings in this Court were not commenced by the NSW Trustee and Guardian in its capacity as the applicant’s tutor. The applicant’s filing of an amended Summons for leave to appeal is therefore likely incompetent and prohibited under r 7.14(1) of the UCPR.

6. [57]

   In the circumstances, however, it is appropriate for this Court to dispense with compliance with the UCPR to the extent that r 7.14(1) would prevent the applicant from commencing proceedings by way of filing the Summons for leave to appeal, or filing any notice of appeal if leave is granted, and in so far as r 7.14(1) would prevent him from carrying on any such proceedings. This Court has power to do so under s 14 of the Civil Procedure Act: Mao v AMP Superannuation Ltd [2015] NSWCA 252 at [56]‑[59].

7. [58]

   There is a further issue about whether leave to appeal is required. Mr Hooke SC submitted that the matter was of sufficient importance given the extent to which the applicant’s rights are affected by the judgment that if leave is required it should be granted. There was no opposition to this course by Mr Fitzsimmons who appeared for the first respondent.

8. [59]

   Leave to appeal should be granted and the amended draft Notice of Appeal filed in this Court on 11 May 2016 is deemed to have been filed as the Notice of Appeal.

9. [60]

   Ground 1 of the Notice of Appeal sought to set aside the original orders, made on 20 July 2015, where the primary judge declared pursuant to s 41(1)(a) of the NSW Trustee and Guardian Act that the applicant was incapable of managing his affairs. The management of the applicant’s estate was committed to the NSW Trustee and Guardian pursuant to s 41(1)(b) of that Act. The primary judge also made consequential orders on that date, including orders reserving for further consideration whether or not the NSW Trustee and Guardian could and should be appointed as a tutor for the applicant in the District Court proceedings.

10. [61]

    It was submitted by the applicant that those orders should not have been made as they were not sought by the amended Summons, which, it will be recalled, was limited to seeking an order that:

11. [62]

    It was conceded in this Court by Mr Fitzsimmons, who appeared on behalf of the first respondent in this Court but not below, that the amended Summons “of itself is problematic”.

12. [63]

    A judge of the Supreme Court undoubtedly has power, conferred by s 41 of the NSW Trustee and Guardian Act, to make an order of the kind made by the primary judge. But the jurisdiction conferred on the Court by s 41 was not invoked by the amended Summons. Although the primary judge had power, under s 41, to make an order of the kind he did, in the absence of an initiating process invoking the jurisdiction, making the order was an erroneous exercise of the power. There is no suggestion that in making the orders the primary judge was acting on his own motion under s 41(2) of the NSW Trustee and Guardian Act.

13. [64]

    The orders of 20 July 2015 must be set aside by this Court. It follows that the orders dated 3 August 2015, which had as their foundation the orders made on 20 July 2015, must also be set aside.

14. [65]

    Ground 1 of the Notice of Appeal is upheld.

15. [66]

    Whilst it will be a matter for the parties and the Court upon remitter, attention should be given to the width of the relief sought in any further amended pleading to be filed. In considering any such amendment, 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. A decision about the applicant’s 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 the applicant’s right of action being prosecuted in the District Court litigation.

16. [67]

    Ground 3 of the Notice of Appeal addressed the hearing on 16 November 2015 and orders made on 27 November 2015 and the primary judge’s treatment of the applicant’s request that Dr Smith be called to give oral evidence.

17. [68]

    Before addressing that ground, it is necessary to say something about the approach of the primary judge to the question of the available medical evidence. In addressing the question of whether the applicant was incapable of managing his affairs, the primary judge quoted from his earlier judgment in H v H [2015] NSWSC 837 at [36]:

18. [69]

    If by this passage the primary judge 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, we disagree. This is not the occasion to consider whether a judge could ever make an order under s 41 of the NSW Trustee and Guardian Act without psychiatric evidence; the present is not such a case. There was, in fact, psychiatric evidence, from both parties. The error lay in declining to allow the applicant the opportunity to supplement Dr Smith’s report by oral evidence.

19. [70]

    When considering any available psychiatric evidence, the considered opinions of the long term treating psychiatrist of the person whose capacity for self-management is under consideration should usually assume considerable importance.

20. [71]

    This is not to diminish the importance of lay evidence in the task of the Court posed by s 41 of the NSW Trustee and Guardian Act. We agree with the view of the primary judge about such lay evidence expressed in H v H at [37] that:

21. [72]

    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. No doubt it is correct to conclude that a decision about whether a person is incapable of managing his or her affairs within the meaning of s 41 of the NSW Trustee and Guardian Act remains ultimately one for the judicial officer, but it must be a decision made having proper regard to the available evidence. To prefer Dr Jungfer’s conclusion to that of Dr Smith, without hearing from Dr Smith and testing his views against those expressed by Dr Jungfer, was an error.

22. [73]

    The applicant also submitted that by not making clear to the applicant that Dr Smith would not be called to give oral evidence and by failing to adjourn to the following day to permit Dr Smith to attend and give oral evidence, the primary judge failed to afford the applicant procedural fairness.

23. [74]

    It was submitted by the applicant that the primary judge was required, as a matter of procedural fairness, squarely to raise with the applicant the prospect that Dr Smith would not be called to give evidence. In that regard, it was submitted that, at the least, the applicant should have been able to make submissions about why it was that an adjournment to the following day should have been granted so that Dr Smith could give evidence.

24. [75]

    In dealing with this issue, the primary judge said to the parties after Dr Jungfer had been cross-examined that his impression was “we’ve now dealt with the whole of the evidence that it is necessary for us to deal with,” with the exception of the evidence from the applicant’s brother-in-law.

25. [76]

    In the context of a litigant in person in the jurisdiction being exercised by the primary judge, in our view more was required. The applicant was clearly opposed to the management orders under challenge. It is equally clear that the applicant sought to have Dr Smith give oral evidence before the primary judge, and that, although not available on the day appointed for the hearing, Dr Smith was available on the following day. The report of Dr Smith made it clear that he took a view contrary to that of Dr Jungfer. Balance required that he be allowed to give oral evidence as Dr Jungfer had done.

26. [77]

    We consider that Dr Smith, as the applicant’s long term treating psychiatrist, was a critical witness on the issues that confronted the primary judge.

27. [78]

    The primary judge had before him reports of Dr Smith dated 13 February 2015 and 6 March 2015. Dr Smith last saw the applicant in consultation on 11 February 2015. Dr Smith opined that the applicant had the capacity to instruct counsel and manage his affairs. Dr Smith had seen the report of Dr Jungfer dated 18 November 2014, and Dr Jungfer had not considered the reports of Dr Smith that were before the primary judge. Despite Dr Smith’s lengthy involvement with the applicant in a relevant clinical setting, his opinion and report received only the most fleeting of mentions by the primary judge.

28. [79]

    Dr Smith was available to give evidence on the afternoon of 17 November 2015. There was no suggestion he could not be accommodated by the Court then. There was no opposition expressed to Dr Smith’s evidence being taken the following day by any other party.

29. [80]

    Further, if the primary judge was minded not to accept Dr Smith’s evidence on the basis that he had not given oral evidence he was in our view obliged in the circumstances of this case to adjourn the hearing to the following day.

30. [81]

    Ultimately, at paragraph [121] of the November 2015 decision, the primary judge did, at least in part, not accept Dr Smith’s evidence on the basis that he had not given oral evidence. The primary judge said:

31. [82]

    In the circumstances of this case and in particular, the fact that the applicant’s long term treating psychiatrist was available to give evidence the next day, this basis for rejecting Dr Smith’s evidence was unfortunate.

32. [83]

    The Court has concluded that when the primary judge came to consider the revocation application under s 86 of the NSW Trustee and Guardian Act he was obliged, at the very least, to make it abundantly clear to the applicant that he may, in part, decide the matter on the basis that Dr Smith was not available to give evidence on 16 November 2015.

33. [84]

    The many pressures on a judge operating in a busy list should be given due acknowledgement. In this case, however, having regard to the significance of the matter for the applicant and Dr Smith’s critical importance to the applicant’s case, we have reached the conclusion 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 the applicant procedural fairness.

34. [85]

    Ground 3 of the Notice of Appeal is upheld and the orders of 27 November 2015 must be set aside.

35. [86]

    The applicant submitted that the primary judge fell into error in failing to have regard to the unchallenged evidence of Dr Smith in his report: Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 at [131] per Hayne J.

36. [87]

    Having regard to the conclusion we have reached on Grounds 1 and 3, and the orders we propose to make setting aside the primary judge’s orders, it is unnecessary to consider this Ground further.

37. [88]

    Ground 5 of the Notice of Appeal

38. [89]

    The applicant submitted that on one view the unchallenged evidence of Dr Smith should lead to the proceedings below being dismissed. It was conceded that “however, it would be open to this court to take the view that the state of the pleadings and the state of the evidence are not such as to permit that disposition.”

39. [90]

    In the view of this Court, this is a case where the state of the pleadings and the state of the evidence are not such as to permit the making of an order dismissing the proceedings.

40. [91]

    It may be, having addressed the pleading and evidential issues which have been discussed in this judgment, that orders under the NSW Trustee and Guardian Act should appropriately be made. That will be a matter for the trial Court on the basis of the evidence then available.

41. [92]

    Ground 5 of the Notice of Appeal should be dismissed.

Conclusion and orders

1. [93]

   As earlier noted, no substantive orders were made by the primary judge on 12 October 2015.

2. [94]

   For the reasons above, the following orders are made:

   1. (1)

      The requirements of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) be dispensed with in relation to the commencement and carrying on of these proceedings by way of application for leave to appeal and appeal.

   2. (2)

      Leave to appeal granted on grounds limited to those grounds contained in the amended draft Notice of Appeal filed with the Court on 11 May 2016.

   3. (3)

      Deem the draft Notice of Appeal filed with the Court on 11 May 2016 to be filed as a Notice of Appeal.

   4. (4)

      Appeal allowed:

   5. (5)

      Each party pay their own costs of the appeal.