HER HONOUR: This matter came before me in the applications list this morning on the return of a notice of motion filed on 7 February 2020 by the first defendant who is the administrator of the estate of the late Laura Angius (the deceased estate). The first defendant seeks by that notice of motion an order pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the plaintiff, John Angius, be medically examined by a neuropsychologist to obtain an opinion as to his capacity: to give instructions in relation to the conduct of the proceedings; to understand (with relevant legal expert assistance) and to make informed decisions about the issues in the proceedings; and to manage his affairs. An order is sought that the plaintiff submit to the medical examination by the named neuropsychologist by attending her practice on 18 March 2020 at 1.00pm.
In support of the notice of motion, reliance is placed on an affidavit sworn 7 February 2020 by Ms Chantelle Marie Tabone a solicitor in the employ of the solicitor on the record for the first defendant. In that affidavit, Ms Tabone deposes to the various matters in relation to the procedural history of the case; and, amongst other things, the various orders that have been made in the proceedings since July 2019 (when the balance of the amended statement of claim and the second cross‑claim were fixed for hearing on 28 and 29 November 2019).
By way of summary, on 20 November 2019 (thus a week or so before the hearing of the balance of the amended statement of claim had been fixed to commence) there was an application by the plaintiff's solicitor, Mr Falk, for leave to withdraw as a solicitor for the plaintiff. That application was refused by Parker J, for the reasons that his Honour then gave.
On 25 November 2019, Mr Falk made a further application for leave to cease to act for the plaintiff, and an oral application for the appointment of a tutor of the plaintiff. On that occasion, orders were made by Parker J for the New South Wales Trustee and Guardian to be appointed as a tutor for the plaintiff, and the hearing dates were vacated.
The matter then came before me on 3 December 2019, and I made further orders in relation to the conduct of the proceedings.
On 13 December 2019, on the application of the New South Wales Trustee and Guardian, I made orders revoking the appointment of the New South Wales Trustee and Guardian as the plaintiff's tutor. I was satisfied that there was no utility in the New South Wales Trustee and Guardian being named as the tutor in the proceedings because it had no power to act as tutor in the absence of a financial management order or other guardianship order. I gave brief reasons for that decision at the time.
There were subsequent procedural orders made in relation to the matter leading up to the filing of the current notice of motion. On 13 December 2019, I listed the matter for hearing before me with an estimate of no more than three days commencing on 25 May 2020. I directed that any application by the plaintiff's legal representative for leave to withdraw as a solicitor on the record be filed and served by 7 February 2020, returnable today; and I referred the disputes in the proceedings to court-annexed mediation on 24 March 2020 for a full day.
I should note that the referral of the parties to court-annexed mediation on that day was not with the consent of the plaintiff but that Mr Falk on that occasion (as on today's occasion) was not favoured with any meaningful instructions from the plaintiff in relation to the ongoing conduct of the proceedings.
As I say, the application for an order for the medical examination of the plaintiff is made by the administrator of the estate. It is made in circumstances where the first defendant (the administrator) is concerned to take steps to have the issue of the plaintiff's capacity to give instructions and have the proceedings determined in order to enhance the prospects of success in resolving the proceedings at mediation; and to reduce or eliminate the risk that a further application to vacate the hearing dates of 25 to 27 May 2020 would be made.
Counsel appearing for the seventh defendant in the proceedings, Mr Robert Angius, neither consents nor opposes the order for medical examination, but, nevertheless, was concerned to place on record that she had been instructed to inform the Court that her client was very firmly of the view that the plaintiff did not lack capacity. Assertions were made as to this being another "delaying tactic", and Counsel made clear her client's opposition to any costs order being made against the estate in relation to the application for a medical report, and submitted that any such costs should be borne by the plaintiff.
It is abundantly clear that steps need to be taken in order to ensure that we are not faced with yet another application to vacate the hearing of the balance of the proceedings. It is not in the interests of the just, quick and cheap resolution of the real issues in dispute as mandated by s 56 of the Civil Procedure Act 2005 (NSW) for these proceedings to be permitted to continue in the current (unsatisfactory) situation where the plaintiff's solicitor is unable to obtain instructions from the plaintiff; and the plaintiff, himself, seems to take no steps in relation to the matter.
The power under r 23 of the UCPR to make orders for the medical examination of a person applies where a person's physical or mental condition is relevant to a matter in question and, relevantly here, that person is a party to the proceedings. The notice for medical examination required under the rules is to be in the form of a request that the person concerned is to submit to examination by a specified medical expert at a specified time and place. Rule 23.4 provides that the Court may make orders for medical examination, including an order that the person concerned submit to an examination by a specified medical expert at a specified time and place; and, if the Court does so order, then the person concerned must submit to examination by the medical expert to all things reasonably requested and answer all questions reasonably asked by the medical expert for the purposes of the examination.
I am satisfied that it is appropriate in the present case for there to be an order made for the medical examination of the plaintiff by a neuropsychologist in order to obtain an opinion as to the plaintiff's capacity.
If the plaintiff is, in the opinion of the expert neuropsychologist, incapable of giving instructions in relation to the present and future conduct of these proceedings, and unable to understand (with the relevant legal and expert assistance) and make informed decisions about the current and further issues in these proceedings, then it is foreshadowed that an application will be made for the appointment of a tutor pursuant to r 7.18 of the UCPR.
If, on the other hand, the plaintiff does in the opinion of the medical expert have capacity to instruct, give instructions, and understand the conduct of the proceedings, then other issues will arise as to the fact that the plaintiff has chosen (it would seem of late at least) to take no steps in relation to the ongoing conduct of the matter. It is unsatisfactory that the proceedings be allowed to be stymied in the current fashion by reason of issues as to whether or not the plaintiff is capable of providing instructions and/or willing to do so.
I understand from the plaintiffs' solicitor, Mr Falk, that the plaintiff may wish to have his own medical expert examine him. Nothing in the orders that I here make precludes Mr John Angius from obtaining his own medical opinion but the matter must be taken forward one way or the other, and the making of the order sought by the administrator will ensure that there is, at least, one opinion (in the absence of any other medical evidence) that will enable a decision to be made as to Mr Angius' capacity.
As to the question of costs, the orders that have been proposed are framed such that the costs be paid in the first instance out of the estate. It seems to me that that is an appropriate order to make in circumstances where it is not, in my opinion, reasonable that the administrator should bear the costs of the medical examination without reimbursement out of the estate, pending the determination of the balance of the proceedings as a whole.
In those circumstances, I will make orders in accordance with the short minutes of order handed up by the administrator, which I will initial and date. I note that the matter will be listed for further directions before me on 23 March 2020, which is the first business day after it is anticipated that the report of the neuropsychologist will have been received (and before the mediation that has been ordered).
Finally, I will give leave for Mr Falk to file a notice of ceasing to act for the plaintiff. It is, to my mind, an invidious position for a solicitor (who is an officer of this Court) to be placed where the solicitor is unable, despite the solicitor's best endeavours to obtain instructions in relation to the ongoing conduct of the matter. It places Mr Falk in an impossible position in relation to the performance of his duties and obligations as an officer of the Court.
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Decision last updated: 21 February 2020