Judgment - EX TEMPORE
Revised and reissued 29 November 2019
Last Wednesday the solicitor for the plaintiff, Mr Falk, applied to the Court for leave to withdraw from acting as the plaintiff's solicitor. I refused that application. The evidence on the application showed that Mr Falk had been unable to obtain money from the plaintiff to pay for the costs of conducting the proceedings and for the retaining of counsel. Nevertheless, I considered that in view of the long history of the matter and the fact that Mr Falk had waited until less than twenty-eight days before the trial was to commence (it is to begin this Thursday 28 November) I could not justify permitting Mr Falk to withdraw on that ground. I was concerned in particular that if I permitted Mr Falk to withdraw it might be impossible to conduct the hearing within the time that has been allocated to it.
Mr Falk was placed in a difficult position by the Court's refusal of his application. In the best tradition of the legal profession, he has nonetheless sought to represent Mr Angius, the plaintiff, to the best of his ability and to prepare for the hearing.
Today Mr Falk has made a further application. The application arises out of attempts that Mr Falk has made to confer with Mr Angius and to take instructions from him with a view to conducting Mr Angius' case in the proceedings (which include a cross-claim against him). In summary, Mr Falk has been unable to obtain any meaningful instructions from Mr Angius. According to Mr Falk's affidavit, Mr Angius has taken the unhelpful position of saying that it is Mr Falk's responsibility to defend the proceedings on his behalf, although at other times Mr Angius said that he did not wish to pursue his claims and they (meaning the defendants) could do what they liked. Mr Angius also claimed to be ill and therefore unable to attend Court.
Mr Falk has obtained a medical certificate from Dr Karleng Tan. Dr Tan is a general practitioner who has previously treated Mr Angius, although it seems she is not the only doctor that he consults. Dr Tan's certificate was very brief. She stated that Mr Angius had been discharged from the hospital "recently" with cardiac failure and needed to rest at home for the next two to three months.
In these circumstances, Mr Falk makes two applications. He first seeks the appointment of a tutor to conduct the proceedings for Mr Angius. Although this was not explicitly stated by Mr Falk, it seems clear that if I were to accede to that application I would have to adjourn the proceedings to allow a tutor to become familiar with the background of the matter and to give necessary instructions to Mr Falk. Mr Falk also relies on the certificate from Dr Tan to say that, in any event, the proceedings should be adjourned on account of Mr Angius' heart condition.
This application was brought on urgently and Dr Tan was able to give evidence by telephone and be cross-examined by counsel for the defendants.
Counsel for the first defendant, who is the receiver of the estate which is the subject of the proceedings, neither consents to nor opposes the application. After asking some questions of Dr Tan, counsel for the second to sixth defendants (which are companies to which a receiver was appointed by the Court for the purposes of these proceedings) took the same position. Counsel for the seventh defendant, however, opposed both applications.
The medical evidence in support of the application certainly leaves something to be desired. There appears to be no dispute that Mr Angius has had long-standing heart problems, but there is a real question about whether the evidence shows that he is in particular straits at present. He was, apparently, admitted to hospital in August. But on Dr Tan's evidence, the medical certificate appears to have been obtained at the instance of Mr Angius himself. The period of two to three months also appears to have been his suggestion and to have been influenced by Dr Tan's perception that Christmas was approaching, rather than any clear diagnosis that Mr Angius suffers from a condition at present which would prevent him from giving evidence at the hearing. I was also left in some doubt about whether, if the adjournment was granted on this basis, the Court could have any confidence that the position would be different in two to three months' time. Nevertheless, for what it is worth, Dr Tan did express the opinion that Mr Angius should not, in light of his condition, be required to give evidence on Thursday and Friday.
Counsel for the companies in receivership fairly conceded, in the light of the way in which the proceedings have been conducted to this point, and having regard to the claims that are made against Mr Angius on the cross-claim, that it would be his duty to put allegations to Mr Angius which Mr Angius might find distressing or aggravating. Counsel was understandably reluctant to proceed with that cross-examination if there was any risk that it might place Mr Angius' health in jeopardy.
The application for the appointment of a tutor gives rise to separate considerations. As I have already noted, Mr Angius has been unco-operative with Mr Falk. Of itself, that does not entitle Mr Angius to any particular latitude from the Court. These proceedings have been pending for far too long and I was told from the bar table, without any objection, that Mr Angius has previously had guillotine orders imposed against him in order to bring this matter to hearing. The amount of money outstanding is substantial and I was told, again without objection, that millions of dollars which would otherwise be available for distribution to other interested parties have been delayed as a result of the claims made by Mr Angius and the cross-claims against him.
But the evidence from Mr Falk does not simply show that Mr Angius has been unco-operative. Mr Falk also said in his affidavit that he is concerned about whether Mr Angius has capacity to give proper instructions for the conduct of the proceedings. The conversations between Mr Angius and Mr Falk give some support to that. In particular, Mr Angius' attitude to pursuing the claims and having the claims against him defended appear to be self-contradictory and irrational.
The evidence does not clearly establish any lack of capacity on Mr Angius' part. The Court therefore does not have power to appoint a tutor under the Uniform Civil Procedure Rules 2005 (NSW), r 7.18(1), which depends upon the Court being satisfied that Mr Angius is or has become a "person under legal incapacity" (see also Civil Procedure Act 2005 (NSW), s 3).
However, it is recognised that the Court has an additional inherent power under its parens patriae jurisdiction to appoint a tutor for the purposes of limitation where there "may be doubt as to" a person's capacity: Bobolas v Waverley Council [2012] NSWCA 126 at [60]. In my view, on the evidence that test is satisfied. It is not clear whether Mr Angius, who is now eighty-two years old, has the capacity to provide proper instructions. The Court has already imposed on Mr Falk the obligation to continue to act in the proceedings, and in my opinion to force him to do so when his client is behaving in the way that Mr Falk's affidavit discloses would place Mr Falk in an impossible position. It is most undesirable that there should be an adjournment of these proceedings, but in my opinion the considerations which I have just mentioned mean that there is no choice. The medical evidence to which I have referred provides an additional reason for an adjournment, albeit one that on its own might not be compelling.
Mr Falk mentioned the possibility of a member of Mr Angius' family acting as tutor. In the time available Mr Falk has not had an opportunity to determine whether that person would be able to act. I think that the best course is to make an order now appointing the NSW Trustee and Guardian as the tutor; however if a member of Mr Angius' family can be found who is prepared to act, then that person may be substituted.
Accordingly, I will order that the NSW Trustee and Guardian be appointed as Mr Angius' tutor for the purposes of the continuance of these proceedings, but I will grant liberty to apply to Mr Falk as solicitor for Mr Angius either to discharge the appointment, should it become clear that Mr Angius does have the capacity to run the proceedings, or to have somebody else appointed on Mr Angius' behalf. I will also vacate the hearing date.
The parties will need to approach the Court for a further hearing date once the tutor, whomever that may be, is familiar with the matter and it is possible to determine the length of time necessary to complete the hearing.
I should say that an important element in my decision is my perception that, once a tutor is appointed and is able to give instructions to Mr Falk, it ought to be possible either to resolve the proceedings or at least to narrow the issues in dispute. In that sense, it seems to me that the appointment of a tutor is at least of some benefit to all of the parties.
The orders of the Court are:
Order the NSW Trustee and Guardian be appointed as the plaintiff's tutor for the conduct of these proceedings.
Grant liberty to the plaintiff's solicitor to apply on short notice, either to discharge the appointment of a tutor to the plaintiff, or to appoint someone else as his tutor for the conduct of the proceedings.
Order that the hearing be vacated.
Reserve costs.
List the matter in the Call Over List on 3 December 2019 at 9am.
[2]
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: 29 November 2019