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Judgment

1. HER HONOUR: This matter comes before me by notice of motion filed 8 May 2020 by the first defendant pursuant to directions that were made to give effect to the making of such an application for hearing this afternoon. The application is for a determination as to whether, in the events that have happened, the plaintiff is a person under a legal incapacity as defined in s 3 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) with respect to the further conduct of these proceedings and, if so, an order for the appointment of Gerard John Basha, or some other appropriate person, as the tutor pursuant to r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for the purposes of the further conduct of these proceedings. A consent by Mr Basha to act as tutor dated 8 May 2020 has been filed.
2. The background to the matter, briefly, is that the first defendant is the administrator of the estate of the late Mrs Laura Angius, who died in January 2012, and one of the plaintiff's children. Letters of administration, with an informal testamentary document annexed, were granted to the first defendant on 1 April 2014. The plaintiff is the deceased's widower. The second to sixth defendants are companies, the only shareholders of which are the plaintiff and the first defendant (as administrator of the deceased's estate). The seventh defendant is another of the deceased's and the plaintiff's sons.
3. Mr Brian Raymond Silvia was appointed as receiver to the second to sixth defendants by orders made on 15 December 2017. Those powers were extended by orders made on 6 July 2018 and on 13 September 2018.
4. The plaintiff is not represented directly on this particular application. There has been a history by which the plaintiff has at times had the benefit of legal representation but at times those who have received instructions from the plaintiff have either found themselves incapable of continuing to act in the matter because of difficulties obtaining instructions from the plaintiff or, as is the case with the most immediate past solicitor acting for the plaintiff, Mr Macaulay, in circumstances where the plaintiff has terminated his instructions.
5. Part of the issues in the proceedings as a whole were determined by Henry J on 1 March 2019 (see Angius v Salier [2019] NSWSC 184). What has been difficult since then has been achieving the just, quick and cheap resolution of the balance of the issues in the proceedings. There have been a number of hearing dates that have had to be vacated. The issue of the plaintiff's capacity was raised by the plaintiff's former solicitor, Mr Falk, in an application for leave to cease to act for the plaintiff on 25 November 2019, three days before the then scheduled hearing was due to commence on 28 November 2019. That application came before Parker J. On 25 November 2019, Parker J appointed the New South Wales Trustee and Guardian to act as the plaintiff's tutor in the proceedings (see Angius v Salier (No 3) [2019] NSWSC 1648 and Angius v Salier (No 4) [2019] NSWSC 1698 (Angius v Salier (No 4))). However, the New South Wales Trustee and Guardian then made an application for revocation of the orders, for the New South Wales Trustee and Guardian's appointment, on the basis, in effect, that there was no utility in the New South Wales Trustee and Guardian being named as 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 (no such additional order then having been made).
6. For the reasons that I published on 13 December 2019 (see Angius v Salier [2019] NSWSC 1854), I accepted the proposition that there was no legislative function in the New South Wales Trustee and Guardian to act solely in the capacity as tutor and I considered that, given the legitimate concerns on the part of the New South Wales Trustee and Guardian as to whether it had power to act, I should revoke the order for the appointment of the New South Wales Trustee and Guardian as the plaintiff's tutor.
7. What followed then was an application for the plaintiff to be medically examined by a neuropsychologist to obtain an opinion as to his capacity to give instructions in relation to the present and future conduct of the proceedings and, with relevant legal and expert assistance, to understand, and make informed decisions about, the current and further issues in the proceedings and management of his affairs (as to which see Angius v Salier [2020] NSWSC 114).
8. There is before me an expert report that was obtained from Dr Jane Lonie (Exhibit 2 on the present application). That report was filed on 20 March 2020. In that report, Dr Lonie described the various neuropsychological tests she had administered and her findings in relation to those tests (see at [43]-[93]).
9. In relation to the conduct of the proceedings, in particular, as to Mr Angius' capacity to give instructions concerning the present and further conduct of the proceedings, Dr Lonie made findings (see at [94]-[99]) and provided further opinions as to his capacity to understand with relevant and expert assistance and make informed decisions about the current and further issues in the proceedings (see at [100]-[101]).
10. Dr Lonie considered that Mr Angius' language and communicative abilities were sufficient for the purposes of providing instructions in relation to the proceedings, noted that the plaintiff might require information or communications to be repeated and clarified to ensure that it had been registered in full and understood, but considered overall that Mr Angius had capacity to understand the issues in the proceedings insofar as he could identify the contested matters and the manner in which they related to his estate and his long-term business affairs. Dr Lonie considered that Mr Angius could retain information of a personally significant nature pertaining to the handling of the proceedings thus far and was aware of the various parties to the proceedings and of its duration.
11. The question of Mr Angius' capacity to make informed decisions about current and future issues in the proceedings was, nevertheless, one in respect of which Dr Lonie expressed concern. Dr Lonie considered that the plaintiff exhibited evidence of impaired complex attention and executive function which were likely adversely to impact upon his ability to sustain and divide his attention without losing the place of what he was doing or thinking about, to pick up errors or anomalies made by himself or others (including his own legal team) and to reason in hypothetical terms. Dr Lonie considered that, to the extent that he was required to engage his cognitive abilities during the course of the proceedings in order to provide instruction, his capacity to do so would be compromised (see [97]). Dr Lonie considered that Mr Angius' current level of performance on a comprehensive cognitive screening measure, coupled with the presence of vascular risk factors and impairments of complex attention and executive function with relative (or at least patchy) sparing of recent memory, suggested at this cognitive presentation might be accountable for in terms an underlying early stage vascular dementia.
12. Dr Lonie considered (see at [104]) that "[a]s a result of Mr Angius' executive impairments (specifically the difficulties he exhibits in retaining his line of thought, self-monitoring [and] reasoning in abstract terms), he is … likely to encounter difficulties in the context of his having to attend to novel and complex matters of a financial [or] business [nature]" and, most relevantly for the purposes of the present application, "legal nature". Dr Lonie considered that his capacity to manage his higher level of affairs would, as a result, be dependent upon the requirement for him to establish and engage in new business, financial and (relevantly) legal activities, and the complexities of the matters with which he must engage.
13. Dr Lonie considered that the plaintiff would be placing himself at a considerable disadvantage were he to act for himself in the proceedings (see at [105]). That is here relevant because Mr Angius has now terminated the retainer of his most recent solicitor, Mr Macaulay. On 7 May 2020 when the matter was before me in a virtual directions hearing, Mr Macaulay expressed concerns about the plaintiff's capacity to give instructions (those concerns expressed not as an expert opinion as such, but based on Mr Macaulay's experience as a solicitor conducting litigation over a number of years in this Court).
14. Section 3 of the Civil Procedure Act relevantly provides: person under legal incapacity means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes - (a) a child under the age of 18 years, and (b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and (c) a person under guardianship within the meaning of the Guardianship Act 1987, and (d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and (e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.
15. Rule 7.13 of the UCPR provides: 7.13 Definition In this Division, person under legal incapacity includes a person who is incapable of managing his or her affairs.
16. Rule 7.14 of the UCPR provides: 7.14 Proceedings to be commenced or carried on by tutor (cf SCR Part 63, rules 2 and 3(2); DCR Part 45, rules 2 and 3; LCR Part 34, rules 3 and 4) (1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor. (2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor.
17. The test that is, as a matter of course, usually adopted in determining the question of capacity in the conduct of legal proceedings and which has been accepted and followed in a number of decisions in this Court (including that of Hammerschlag J in Murray v Williams [2010] NSWSC 1243 at [26]), is that stated by Chadwick LJ in Masterman‑Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162.
18. I note that Parker J, when his Honour appointed the New South Wales Trustee and Guardian, was concerned that the evidence before the Court was not sufficient to determine that there was incapacity (see Angius v Salier (No 4) at [8], [12]). I do not suggest that I cavil with his Honour's rulings. However, the conduct since then of Mr Angius and the difficulty that successive solicitors have had in obtaining instructions from him in relation to the conduct of proceedings in this Court are matters that suggest that there is now a very real issue in relation to his capacity to conduct proceedings and to give instructions in relation to the conduct of the proceedings. I further note the observations made by Lindsay J in Re WS [2017] NSWSC 745 (at [31]), dealing with the capacity of a self-represented litigant to conduct proceedings in that case.
19. I also have in mind the decision of Kyrou J in Slaveski v State of Victoria (2009) 25 VR 160; [2009] VSC 423; and I note that Sackar J in Walton v Hartmann as executor of the Estate of Wanda Resler [2017] NSWSC 1432 also dealt with issues of this kind.
20. I am satisfied that, notwithstanding the conclusion that was reached by Dr Lonie, there are observations and opinions expressed by Dr Lonie in the context of her expert report that lead to the conclusion, taken in the context of the course that Mr Angius has seemingly engaged in to date, that he is now incapable of providing instructions for the future conduct of the legal proceedings (and Dr Lonie considered that Mr Angius would be at a considerable disadvantage were he now to represent himself). Therefore, there is jurisdiction to appoint a tutor for the further conduct of the proceedings.
21. I also have in mind that the proceedings are listed for hearing for three days commencing 25 May 2020 on what is now, I think, the third successive set of hearing dates and it is in the interests of the just, quick and cheap resolution of the real issues in dispute that the matter proceed to a hearing on that occasion. I have no doubt that this will not be possible unless a tutor is now appointed for the plaintiff and I am in no doubt that the plaintiff, whether it be for reasons of his suspected early vascular dementia or otherwise, is not in a position where he is capable of providing instructions for the ongoing conduct of these proceedings (or conducting them himself).
22. I will, therefore, make an order appointing a tutor.
23. I have reviewed the consent to act and the material on the present application, including the affidavit sworn 8 May 2020 of Ms Chantelle Tabone (the solicitor for the first defendant in the proceedings) who has deposed to the circumstances in which Mr Basha has agreed to be appointed and in relation to the charge that Mr Basha will make for his work at a professional rate. Mr Basha is well aware of the imminent hearing date and has expressed confidence that he will be in a position to be ready for the hearing commencing on 25 May 2020.
24. There have been discussions between the parties as to the manner in which the legal fees will be met. There is power under r 42.24 for the Court to make an order in relation to costs, incurred by the solicitor in performance of the duties of the tutor, be paid by the parties in the proceedings or any one of them or out of a fund in court in which the person under legal incapacity is interested; and to make orders for the repayment or allowance of the costs as the case requires. In the circumstances, I consider that the regime that has been put forward in the proposed short minutes of order is appropriate. I will, therefore, make orders of that kind. However, I am directing that revised orders be forwarded to my chambers in order to address matters raised in the course of oral submissions by the seventh defendant as these orders; and the final orders will be made in chambers.