A v A

Court of Appeal (NSW)|2016-02-16|Before: Gleeson JA, Lindsay J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

GLEESON JA: Before the Court on 16 February 2016 was a notice of motion filed 6 October 2015 by which the applicant, a protected person, sought no less than 28 orders, including that the NSW Trustee be removed from the "victims matter immediately" and that the court "review all orders made by COURTS in 8 years with miscarriage of justice from courts" (order 1). Other relief sought included the payment of interim compensation on the grounds of emergency hardship in respect of rent, medical and dental treatment; an advance payment of $5 million for loss of income; orders that "all solicitors who have acted in this matter since 2007" be subpoenaed to give evidence; orders that Doctor Patricia Jungfer and Doctor S Smith be subpoenaed to give evidence concerning their reports in relation to the applicant's capacity; and orders for the transfer of the applicant's District Court proceedings to this Court and the proceedings be listed for a 10-day hearing to determine "all negligence caused in this matter from 2007, professional negligence, medical negligence, by all parties who acted in this matter".

Background

The applicant was involved in a motor vehicle collision on 2 July 2007, as a result of which he suffered injury to his neck and head.
In 2009, the applicant brought proceedings against the respondent claiming damages for personal injury. The respondent was insured and ultimately admitted liability in the District Court proceedings. However the assessment of damages in the District Court proceedings has not yet taken place. It seems that the applicant has frequently changed solicitors, instructing over 10 different law firms, and that the District Court proceedings have been listed for hearing on three occasions, but each time adjourned at the request of the applicant.
In December 2014, Norton SC DCJ dealt with a notice of motion filed by the applicant seeking an order that the respondent make an interim payment of damages on account of damages claimed in the principal proceedings in the District Court. A report provided by Dr Patricia Jungfer concluded that the applicant lacked capacity to provide instructions to legal counsel. The applicant provided two short reports from doctors who each certified that he had the capacity to conduct the proceedings.
On 21 January 2015, the respondent commenced the Protective List proceedings, seeking protected estate management orders under s 41 of the NSW Trustee and Guardian Act 2009 (NSW) (the Act).
On 4 February 2015, Norton SC DCJ delivered reasons for declining to deal with the question of interim compensation until a tutor had been appointed to represent the applicant (who at that time was self-represented). Subsequently, by an amended summons filed on 24 June 2015, the respondent sought an order for the appointment by the Court of a tutor for the applicant, to conduct the District Court proceedings
Also in 2015, the applicant commenced the Common Law Division proceedings seeking an order for transfer of the District Court proceedings to the Supreme Court.
On 20 July 2015, Lindsay J made notations and orders in the Protective List proceedings, including a declaration that the applicant is incapable of managing his affairs, and an order that the estate of the applicant be subject to management under the Act, together with a further order that the management of the estate of the applicant be committed to the NSW Trustee. His Honour reserved for further consideration whether the NSW Trustee can, and should, be appointed tutor for the applicant in the District Court proceedings or whether a member of the family of the applicant 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.
On 3 August 2015, Lindsay J made orders in the Protective List and Common Law Division proceedings. By those orders the NSW Trustee (as the protected estate manager of the applicant) was appointed as tutor for the applicant in both the Common Law Division proceedings and the District Court proceedings (the compensation proceedings).
On 16 November 2015, Lindsay J heard an application by the applicant to revoke the management orders made on 20 July 2015 and the tutorship order made on 3 August 2015. His Honour dismissed that application for reasons delivered on 27 November 2015: A v A [2015] NSWSC 1778.
His Honour noted (at [104]) that whilst he did not deliver formal reasons for judgment in support of the orders made on 20 July 2015 and 3 August 2015, those applications having been dealt with in the course of a busy list, an explanation of what was being done, and why, was recorded in the transcript for those days.
His Honour recorded (at [103]), that a protected estate management order was made on 20 July 2015, having regard to the evidence before him about the course of the District Court proceedings and the available medical evidence (including Dr Jungfer's report) and the reasons for judgment of Norton SC DCJ on 4 February 2015, and his Honour having had an opportunity to observe the applicant in court. He noted (at [106]), that the order for the appointment of a tutor on 3 August 2015 was made after having heard submissions, no doubt in light of the earlier orders which had been made on 20 July 2015 appointing the NSW Trustee as the protected estate manager for the applicant.
Of present relevance are his Honour's observations (at [31]) concerning the applicant's compensation proceedings since the NSW Trustee had been appointed tutor: Since the orders presently under challenge were made, and with the benefit of that undertaking, the NSW Trustee has retained an experienced firm of solicitors who have, in turn, retained an experienced barrister to act in the applicant's best interests in advancement of his personal injury compensation claim. This, in itself, is more than the applicant has been able to achieve for himself in several years of wasted litigation.
On 8 February 2016, the applicant filed a document styled "Summons seeking leave to appeal to act without tutor", seeking to challenge the orders made by Lindsay J on 27 November 2015.
It was common ground that the current position in relation to the compensation proceedings is as follows. The Common Law Division proceedings were dismissed by consent in November 2015. The District Court proceedings have been listed before McLoughlin DCJ for case management, with the next directions hearing fixed for 26 April 2016. In addition, an application has been made to the Motor Accidents Medical Assessment Service for an assessment of the applicant's degree of permanent impairment as a result of the injury caused by the motor accident.
The respondent tendered a statement of assets and liabilities for the applicant provided by the NSW Trustee as at 15 February 2016. That statement shows that the applicant is of very limited means; his only source of income seems to be a CentreLink pension of $801.27 per fortnight. After payment of electricity, gas and rent, the NSW Trustee provides the applicant with a spending allowance of $250 per fortnight. It is apparent that prior to the appointment of the NSW Trustee, the applicant incurred debts to utilities (gas and electricity) and for a telephone, which had been outstanding for some time.

The applicant's complaint

The applicant's complaint can be simply stated. The applicant is adamant that he does not need a tutor in his compensation proceedings. He says that he wants to appoint his own solicitor to represent him in the compensation proceedings. He contended that the respondent-insurer's solicitors only applied for the appointment of the NSW Trustee as the protected estate manager and tutor for the applicant in his compensation proceedings so as to cover up various matters which, it is alleged, are preventing the applicant obtaining justice from the proceedings.
The applicant indicated that he wishes to challenge the decision of Lindsay J by other medical reports which he is in the process of obtaining. He also complained that he was not given a fair opportunity to cross examine Dr Jungfer and a solicitor who gave evidence before Lindsay J, whom he alleges lied on oath. The applicant wants the orders made by Lindsay J "revoked" until he obtains a hearing of his appeal in this Court.

Decision

The starting point is that the motion is in support of applications for leave to appeal, not a vehicle to pre-empt the outcome of any appeal should leave be granted. The merits of the applicant's challenge to the orders made by Lindsay J cannot be determined in advance of the hearing of the applications for leave to appeal. Accordingly there is simply no basis for this Court to revoke those orders prior to the hearing of those applications, and any appeal, should leave be granted.

Stay of orders

The application to "remove" the NSW Trustee can also be viewed as an application for a stay of the orders made on 20 July 2015 and 3 August 2015, pending the outcome of the applications for leave to appeal, and any appeal should leave be granted.
The principles to be applied when exercising the Court's power to grant a stay pending an appeal are well-known. See Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695, and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 at [17]-[20]. Those principles apply equally to an application for leave to appeal.
The applicant must show that the proposed appeal raises serious issues for the determination of the appellate court, assuming leave to appeal is granted, and that there is a real risk that he will suffer prejudice or damage, if a stay is not granted, which will not be redressed by a successful appeal, assuming leave to appeal is granted.
It has been said that this requirement will be satisfied if the appeal will be rendered abortive or nugatory unless a stay is granted. If these preconditions are established the Court will then consider the balance of convenience: Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 at [18].
The draft notice of appeal seeks to raise 15 grounds. The grounds are not easy to follow. One ground asserts that the applicant was not given a fair hearing, with reference made to an unidentified doctor taking a bribe. Another ground asserts that the applicant has been "bullied and robbed and raped by solicitors as no one has defended" him. No purpose would be served by further analysing the grounds of appeal in the draft notice of appeal. It is sufficient to say that, having reviewed those grounds, the asserted error by Lindsay J is not immediately apparent.
Further and importantly, his Honour's reasons for refusing to revoke the orders made on 20 July 2015 and 3 August 2015, include a careful analysis of the medical evidence in the form of reports and oral evidence from Dr Jungfer on 16 November 2015. Based on that material, his Honour concluded that the applicant's welfare and interests are likely to be best served by the NSW Trustee continuing, for the time being, to manage his affairs and to act as his tutor in the compensation proceedings: at [124]. There was no evidence to the contrary on the present application.
The applicant did not point to any reason why, assuming success on the applications for leave to appeal, his appeal would be rendered abortive or nugatory unless a stay is granted. There is no evidence that the NSW Trustee has taken, or proposes to take, any step in the District Court proceedings which is disadvantageous to the applicant.
Moreover, the balance of convenience favours maintenance of the status quo. Before the appointment of the NSW Trustee as tutor for the applicant in the compensation proceedings, the proceedings had stalled for some considerable period of time. Since that appointment, the applicant's former solicitors have been reinstructed, the compensation proceedings have been placed under case management by a Judge of the District Court, and steps are being taken to assess the applicant's whole person impairment. Those steps have been for the applicant's benefit. The applicant did not point to any prejudice to his claim in the compensation proceedings arising from the appointment of the tutor.
As to the other relief sought in the notice of motion, the reasons for refusing such relief can be shortly stated.

Interim compensation

With respect to the claims for interim compensation on the grounds of hardship, and an advance payment of damages, there are matters for the NSW Trustee, as the applicant's tutor, to consider and pursue in the compensation proceedings if considered appropriate. It is not a matter in the appeal, should leave to appeal be granted.

Transfer of proceedings to this Court

The Common Law Division proceedings seeking to transfer the District Court proceedings to the Supreme Court have been dismissed by consent. This is unsurprising, since the District Court has unlimited jurisdiction in motor vehicle accident matters: (s 44(1)(d), District Court Act 1973 (NSW)). The issue of transfer of those proceedings to another court is not a matter in the appeal, should leave be granted.

Leave to issue subpoenas

The applicant seeks leave to issue a subpoena for production and to give evidence to the solicitors who have acted for him since 2007 and two doctors, Dr Jungfer and Dr Smith. Leave is necessary because the applicant is not represented by a solicitor and Uniform Civil Procedure Rules (UCPR) r 7.3(1) provides that in that situation a subpoena shall not issue except by leave of the Court.
The applicant seems to assume, that if leave to appeal is granted, he may lead evidence on appeal from the solicitors who have acted for him since 2007, and medical evidence from Dr Jungfer and Dr Smith. That view ignored that the circumstances in which evidence may be admitted on appeal, either as "fresh evidence" or "further evidence", are constrained: s 75A(7)-(8) and (9) of the Supreme Court Act 1970 (NSW). It would seem that the applicant seeks to rely upon the exception concerning "further evidence" which is authorised by s 75A(7), subject to the proviso in subs (8). Under s 75A(8), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.
Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 and cases which have followed it, such as Tjiong v Tjiong [2012] NSWCA 201 at [166], establish that, in general, three conditions need to be met to satisfy the requirement of "special grounds" in s 75A(8): 1. the evidence could not have been obtained with reasonable diligence for use at the trial; 2. the evidence must be such that there must be a high degree of probability that there would be a different verdict; and 3. the evidence must be credible.
Here there is no evidence that the evidence from either the applicant's former solicitors or Dr Jungfer or Dr Smith could not have been obtained with reasonable diligence and adduced as evidence at the hearing before Lindsay J.
Further, as to the former solicitors, nothing is known of the contents of the documents in their possession or the evidence they might give which the applicant seeks to rely upon on appeal. There is no basis for thinking that this evidence (which is unknown) would, with a high degree of probability, lead to a different result.
As to the medical issue concerning the applicant's capacity, this was the subject of evidence before Lindsay J. Dr Jungfer provided reports at the request of the respondent's solicitors. She also gave oral evidence on 16 November 2015, and was examined by the court, the applicant and the respondent. There is no evidence that Dr Jungfer, whose evidence his Honour accepted, has changed her opinion concerning the applicant's capacity.
Nor is there any evidence as what Dr Smith might say. It is unclear whether he is the "Dr S" referred to in the reasons of Lindsay J (at [96]), who gave a short report dated 4 December 2014, at the request of the applicant, in the proceedings in the District Court. Again, there is no basis for thinking that this evidence (which is also unknown) would, with a high degree of probability, lead to a conclusion on the question of the applicant's capacity different to that reached by Lindsay J.
The applicant's desire to subpoena these persons to produce documents and give evidence on appeal does not meet the "special grounds" requirement in s 75A(8).
Leave to issue the subpoenas should be refused.

Other matters

No purpose would be served in analysing all of the other relief sought in the notice of motion which is of a similar nature to that referred to above. Having considered the applicant's affidavit in support of such relief, I am not persuaded that the Court should grant any of the relief sought in the notice of motion.

Orders

For the reasons given, the applicant's notice of motion filed 6 October 2015 should be dismissed with costs. A costs order is appropriate, given the general rule that costs follow the event: UCPR, r 42.1. The applicant did not contend otherwise.

Amendments 23 February 2016 - [9] - Line 1 - deleted second occasion of the word "the" - so that the sentence commences: "Also in 2015, the applicant commenced the Common Law Division proceedings ..." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2016

Trustee and Guardian Act 2009(NSW)

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Judgment (12 paragraphs)

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