ANGLISS v URQUHART [2001] NSWCA 441 | Case summary

Judgment 1 SHELLER JA: This is an application by William Arthur Angliss (Mr Angliss) for leave to appeal from a decision of Barrett J of 16 October 2001 and a decision of Windeyer J of 30 October 2001 ordering him to attend for a medical examination. On the limited material placed before this Court the case is a very sad one. The claimant is a widower aged 91. He was joined as a defendant to proceedings begun by the opponents, Alison Mary Urquhart and Andrew Roderick Urquhart, who are Mr Angliss's grandchildren by a deceased daughter, against his daughter, Heather Margaret Lanham (Mrs Lanham) and the National Australia Bank. We were told that the opponents were the beneficiaries under a will made by Mr Angliss in 1997. Ms Urquhart had been appointed as an enduring guardian under Pt 2 of the Guardianship Act 1987. The terms of this appointment were not before the Court but we were told that the functions of the guardian included those set out in s6E of the Guardianship Act. 2 We were informed that the claimant is self-supporting having a significant income from invested funds and assets including a home of his own in which he resides with a full-time companion housekeeper. During 2001 Mr Angliss purported to execute various wills, appointments of enduring guardian and protected powers of appointment in favour of Mrs Lanham and to revoke the appointment made on 7 August 2000 of the opponents as his enduring attorney. 3 The opponents began the proceedings by what eventually became a further amended summons to which the defendants were Mrs Lanham, National Australia Bank Limited and Mr Angliss. Declarations were sought that an Appointment of Enduring Guardian dated 6 March 2001 in favour of Ms Lanham was void or voidable for a number of reasons including that Mr Angliss did not at the time of execution have legal capacity. A document "Form of Revocation of Appointment of Enduring Guardian" dated 10 March 2001 was challenged on the same basis. The revocation was apparently directed to the appointment of Ms Urquhart. The summons sought also a declaration that a will dated 6 March 2001 should be set aside because at the relevant time Mr Angliss lacked testamentary capacity and for other reasons not dissimilar to those justifying the orders sought in respect of the appointment of enduring guardian. Similar relief was sought in respect of a power of attorney dated 6 March 2001 in favour of Ms Lanham, a revocation on 24 April 2001 of enduring powers of attorney and a will made on 23 April 2001. A similar attack was made on a protected power of attorney made on 23 April 2001, in that case by reference to the Powers of Attorney Act 1998 of Queensland. On 17 September 2001 Deacons solicitors filed an appearance for Mr Angliss. On 20 September 2001 Mr Angliss moved by notice of motion that the order appointing a tutor to him be vacated. 4 The orders sought included an order that the National Australia Bank not permit the withdrawal of more than $350 per week from a cheque account in the name of Mr Angliss held by it. On 20 September 2001 Windeyer J, on the basis of the evidence of Ms Jill Harding-Clarke, a neuro-psychologist, and Dr Judith Chittenden, a psychiatrist, vacated an order made on 3 September 2001 appointing William Cowdrey as tutor of Mr Angliss. At the same time, his Honour made an order that if Mr Angliss wished to withdraw more than a total of $1,000 per week he should, by his solicitors, give notice in writing to the opponents' solicitors of the identity of the intended payee and the amount of the payment of all such proposed drawings exceeding that total sum. The order provided that if the opponents did not file and serve a motion seeking to restrain a drawing or drawings so notified within two business days of such notice Mr Angliss might proceed to make the drawing or drawings but that if such a motion was filed and served he was restrained from making the drawing or drawings the subject of a motion until further order. 5 His Honour also ordered that Mr Angliss attend for examination by Dr Carmelle Peisah in Brisbane or on the Gold Coast on 17 October 2001. The opponents were given leave to file and serve a notice of motion challenging the retainer by Mr Angliss of Deacons solicitors "the hearing of such notice of motion to stand over to the final hearing of the proceedings". On 5 October 2001 Mr Angliss, by his solicitors, consented to being examined by Dr Peisah on 18 October 2001. 6 On 16 October 2001 Barrett J varied Windeyer J's order of 20 September 2001 by omitting "by Dr Carmelle Peisah" and substituting "by a medical practitioner other than Dr Carmelle Peisah" and by omitting "17 October 2001" and substituting "a date to be agreed between the solicitors for the plaintiff and the solicitors for [Mr Angliss] failing which agreement to be set by the court". 7 On 30 October 2001 Windeyer J ordered that the matter proceed by way of pleadings and that the opponents file and serve a statement of claim by 7 November 2001. This has not been done. Windeyer J also ordered that the opponents' notice of motion in relation to Deacons retainer filed 24 October 2001 be stood over to 22 November 2001 with liberty to Mr Angliss to restore the matter to the list. It seems, though it is not referred to in the form of the orders included in the white book, that Windeyer J ordered Mr Angliss to attend a medical examination by a Dr Bennett on 20 November 2001. 8 While the material before the Court is far from complete, it is not surprising to learn that in beginning proceedings to have a declaration made that Mr Angliss was incapable of executing a power of attorney or appointing an enduring guardian or making a will the opponents obtained expert evidence about Mr Angliss's capacity. In response material was obtained to show that Mr Angliss was capable of these things. What looms as the main issue in the proceedings is Mr Angliss's capacity. The particular issue on this application for leave to appeal is the order that Mr Angliss submit to be examined by the opponents' doctor on the question of his capacity. 9 Windeyer J had on 10 August 2001 ordered Mr Angliss to attend for medical examination at 1.30 pm on 16 August 2001 by Dr Peisah. On 14 August 2001 Dr Myers reported that he had that day examined Mr Angliss and noted that he was due to undergo further extensive examination by a doctor unknown to him on 16 August 2001. Dr Myers said that Mr Angliss was distressed by this prospect and that in Dr Myers' opinion the stress was excessive for a man of 91 years who had already had numerous medical examinations. Dr Peisah flew from Sydney to the Gold Coast on 16 August 2001 but Mr Angliss did not attend the examination. On that day one of his sons drove him to Pindara Emergency Centre at 1.35 pm and he spent the whole afternoon there. The attending doctor, Dr Atef Mousa, said that Mr Angliss arrived by car with a history of being unwell since the previous day: "he was sick last night and vomited once through the night. For brief seconds there were episodes of dizziness this morning". After stating the results of his examination and various tests, Dr Mousa said: "Query postural-hypotension, query transient ischaemic attacks and unlikely arrhythmia. Requested a duplex of his carotids. This patient will see you after carotid duplex for follow up." The report was addressed to Dr Myers. 10 The attending doctor gave one of Mr Angliss's sons a referral for a duplex of Mr Angliss's carotid artery, which is said to be an ultrasound scan of the lining of the artery that supplies the brain, but there was no evidence that this had been done. 11 Dr Myers again examined Mr Angliss on 25 September 2001. In a report of 1 October 2001 Dr Myers said: "I saw and examined the above on 25 September 2001 and was able to review previous reports on him by Dr Chittenden and Ms Harding-Clark, both of whom agree with my assessment that your client has testamentary capacity. To date he has seen seven medical practitioners and clinical psychologists and I note that he is now supposed to see another psychiatrist, Dr Peisah, who has already given a report without seeing the patient which he considers to be somewhat prejudicial to his case. He says that he does not wish to see 'every Tom, Dick and Harry' since the medical consultations impose a great deal of stress upon him. In fact recently following a number of these consultations he developed an acute confusional state with which he presented to the local Gold Coast Hospital where he was considered to have suffered a transient ischaemic attack. It is my view therefore that he is not well enough medically to undergo further gruelling psychiatric examination particularly when he has already been extensively examined and especially since he faces this next examination with some apprehension because of the doctor's previous report about him. Despite this he is, and remains quite capable of understanding what is meant by a Power of Attorney, what is meant by making his will and to whom he wishes to give his Power of Attorney and to whom he wishes to will his assets upon his death. I would have thought that any competent judge could have determined the matter by asking the patient the appropriate questions without submitting him to further, and seemingly never ending, medical examinations, the stress associated with which is likely to be detrimental to his health." There is no reference in this report to Mr Angliss having undergone the test described by Dr Mousa as carotid duplex. 12 On 16 October 2001, by notice of motion returnable instanter, Mr Angliss moved before the Equity Duty Judge to have the order of Windeyer J of 20 September vacated. Mr Angliss moved on an affidavit of David Bruce Angliss, one of his sons, sworn the same day, of the contents of which the opponents had no notice. The affidavit, all of which was admitted despite objection to part, mainly conversations by Mr Angliss to the deponent, read as follows: "8. At about 1pm on 16 August 2001, I took my father to hospital. My father was admitted to the Pindara Emergency Centre under the observation of Dr Atef Mousa - the duty doctor at the emergency centre at the time. After Dr Mousa had examined my father, he said to me words to the effect of 'all of the symptoms point to your father having had a TIA which is, in effect, a minor stroke but I can't be 100% certain'. When I informed Dr Mousa of my father's disorientation that morning, Dr Mousa said to me words to the effect of 'that is a symptom of what can happen when you have a TIA. The effect of a TIA will depend on the location of the blood clout [sic] in the brain and can affect bodily functions such as orientation, speech, balance and memory however, these effects are usually only transient'. Dr Mousa then gave me a referral for my father to have a duplex of the carotid artery. Annexed and marked 'B' is a copy of the medical report from Dr Mousa dated 16 August 2001 and a transcript of that report. 10. Annexed and marked 'D' is an information sheet on Transient Ischemic Attacks ('TIA') that I obtained from the homepage of the National Institute of Neurological Disorders and Stroke. I note that the information sheets contains the following passage 'TIAs are often warning signs that a person is at risk for a more serious and debilitating stroke. About one-third of those who have a TIA will have an acute stroke some time in the future. Many strokes can be prevented by heeding the warning signs of TIAs and treating underlying risk factors'. 11. I see my father up to three times a week now that he is living within a short drive from my house. Before being joined in these proceedings as the Third Defendant, my father appeared to me to be happy, outgoing, and enjoying his life. 12. Since my father was joined in these proceedings, I have observed how the legal proceedings are affecting my father's health and well-being. My father has become noticeably more withdrawn and stressed. To keep abreast of the proceedings, he spends increasing amounts of time reading and re-reading the large number of documents that this case has generated. My father has said to me on a number of occasions words to the effect of 'She [Dr Peisah] is going to say that I am incompetent. Having already formed her opinion, she is not going to change her mind. She has been given only one side of the story, she has formed a biased opinion'. 13. On 14 October 2001, my father said to me words to the effect of 'I am fed-up with the undue stress and strain of these proceedings and the fact that I am being forced to prove that I am mentally competent. What is the point of living if this is what I have to put up with at my age?' " 13 On 16 October 2001 Barrett J heard the application. His Honour referred to the background of the proceedings and noted that in the context of the proceedings Mr Angliss's testamentary capacity was an issue as was his capacity to give a power of attorney. His Honour referred to the affidavit of Mr David Angliss, and the reports of Dr Mousa and of Dr Myers. His Honour said: "The last part of that extract from Dr Myers' letter refers to the fact that Dr Peisah has already expressed an opinion about the third defendant's capacity, based on her assessment of extrinsic materials and without any direct examination or observation of the third defendant. It was explained to me that Dr Peisah is qualified in the field of expressing opinions about testamentary capacity after death and, therefore, has particular skills in making judgments by reference to documents and the like without access to the patient. … There are two relevant statements said by the son to have been made by the father. One said to have been made on a number of occasions is to the effect: 'She (Dr Peisah) is going to say that I am incompetent. Having already formed her opinions, she is not going to change her mind. She's been given only one side of the story. She has formed a biased opinion.' The other statement said by the son to have been made by the father on 14 October 2001 was: 'I am fed up with the undue stress and strain of these proceedings and the fact that I am being forced to prove that I am mentally competent. What is the point of living if this is what I have to put up with at my age?' Mr Angyal took me to a number of reports of doctors who have seen the third defendant over the period of some 12 or 14 attendances upon medical practitioners since about March of this year. He also took me to meetings, of which there is evidence, between the third defendant and solicitors. He pointed to a common thread, which I accept as being in that evidence, that the third defendant, although naturally on his guard initially on such occasions, has been generally comfortable after the ice has been broken and has also been cooperative to a point in some instances of having been quite relaxed by the end of the meeting. Mr Angyal made the point that many of the doctors were female, as is Dr Peisah. I mention that only because some people do develop particular shyness or difficulty when attended by a doctor of the opposite sex. Mr Angyal also drew my attention to evidence of a relatively active lifestyle on the part of the third defendant, given his age of 91 years, with evidence of his watering the garden, doing gardening, and playing tennis. The task before the court on this application is to strike an appropriate balance between competing interests. There is on the one hand the interest of the plaintiff in this case (but in most other cases, the defendant) in having available to put before the court appropriate medical evidence where medical questions are at the centre of the controversy between the parties. The other interest is the interest of the third defendant as a person in not being subjected to undue invasion of his person or health. I was taken by both counsel to certain authorities and will quote a summation which appears in Cox v The State of Queensland [2001] QSC 220 of what was extracted from Prescott v Bulldog Tools Limited [1981] 2 All ER 869. It was said in the Queensland case, which was similar in principle in its substance to this one: 'In determining an application of this sort it was held in Prescott that a court must (a) assess whether the defendant's request is reasonable in the light of the information and advice received from its experts; (b) assess whether the plaintiff's refusal is similarly reasonable; (c) if both are reasonable, then balance the plaintiff's right to personal liberty against the defendant's right to defend itself in the litigation the plaintiff has brought against it, one right not being considered to be more than a right than the other right; (d) examining, objectively, the weight of the reasonableness…and balance one against the other 'to ensure a just determination of the cause as between the parties taking into account their reasonable requirements'.' The position, as it appears in this matter, is that the plaintiff's request and the third defendant's refusal are both reasonable. The third defendant does not have difficulty with medical examinations, as such. It is clear enough that he has undergone quite a number of them in recent times, both of his own choice and at the instigation of parties to these proceedings. His real difficulty is with Dr Peisah. He is said by his son to have expressed an opinion that Dr Peisah has prejudged his case because of the opinion she has already expressed on the documents. He has an apprehension - and I do not think one would need much evidence to draw this inference - that when he sees Dr Peisah she will approach his examination with something other than an open and fair mind. That, as I judge it, from the evidence, has caused the third defendant considerable anxiety to the point where the anxiety has manifested itself in physical symptoms. There is other evidence to suggest that when he becomes stressed or upset he does experience a state of some disability and, as I see it, it was a state of that kind that he experienced on the day before he was due to see Dr Peisah, about whom he had the predisposition to which I referred. I think, therefore, that it is undesirable that the third defendant be forced to see Dr Peisah. I have that opinion because of the evidence that he possibly suffered the TIA episode in circumstances which I believe I am entitled to infer could have been brought on by an apprehension of having to see D Peisah previously. With the evidence that TIA can lead on to more serious and even potentially fatal consequences, it would not be appropriate for him to be put in that position again. At the same time, however, the plaintiff will be prejudiced by a denial of the opportunity to have the third defendant examined by an appropriate specialist with the necessary skills. It would not be doing justice to the plaintiff to shut out altogether the possibility of another doctor chosen by the plaintiff in a specialty appropriate to the issues in the case examining the third defendant. In the result, therefore, I believe the correct course for the court to take is to vacate the order of Windeyer J which refers specifically to D Peisah but without prejudice in any way whatsoever to the right and opportunity of the plaintiff to seek a replacement order by reference to some other doctor of the plaintiff's choosing. To my mind, any such application would succeed virtually as a matter of course. So that will be my decision. The order I propose to make is that order 4 of the orders made by Windeyer J on 20 September 2001 be vacated but without prejudice in any way whatsoever to the right of the plaintiff to apply for an equivalent order by reference to a medical practitioner other than Dr Peisah. Having heard further from counsel I am persuaded that effect is better given to what I have just said by not vacating order 4 of the order made by Windeyer J on 20 September but rather by varying that order by omitting 'by Dr Carmelle Peisah' and substituting 'by a medical practitioner other than Dr Carmelle Peisah'; by omitting '17 October 2001' and substituting 'a date to be agreed between the solicitors for the plaintiff and the solicitors for the third defendant failing which agreement to be set by the court'; by omitting the words 'report of Dr Peisah' and inserting instead 'report of that medical practitioner'; and, finally, by omitting the second sentence of his Honour's order. I order that Windeyer J's order be so varied. Further to that, I will grant liberty to apply on forty-eight hours notice in case anything concerning the varied order needs to be brought before the court." 14 Both parties agree that his Honour erred in saying that Mr Angliss "possibly suffered the TIA episode in circumstances which I believe I am entitled to infer could have been brought on by an apprehension of having to see Dr Peisah previously." That apprehension was not brought about by the identity of Dr Peisah or the fact that she was the doctor the opponents nominated. It was distress in the language of Dr Myers' report of 14 August 2001 at undergoing a further extensive examination by a doctor unknown to Mr Angliss which Dr Myers regarded as involving excessive stress for a man of 91 years of age who had already had numerous medical examinations. Dr Peisah's identity became a matter of concern to Mr Angliss after she had expressed an opinion in a report of 31 August 2001 about his mental condition. This followed the episode on 15 and 16 August and Mr Angliss's non-attendance on Dr Peisah on 16 August. Dr Peisah's report about him was not based on examination but upon documentary material such as affidavits, letters and reports by other doctors. In short, and with due respect, his Honour misunderstood the evidence if he considered that Dr Peisah's report played a part in bringing on the episode of 15 and 16 August. Mr Angliss's concerns and the distress and stress that flowed from them could not be remedied as Barrett J suggested by the nomination by the opponents of some other doctor not known to Mr Angliss and not previously associated with the case. 15 Part 25 of the Supreme Court Rules provides procedures for compelling medical examination of a party. Rule 5 provides: "(1) The Court may, on terms, make orders for the medical examination of a person concerned, including an order that a person concerned submit to examination by a specified medical expert at a specified time and place. (2) Where the Court orders that a person concerned submit to examination by a medical expert, the person concerned shall do all things reasonably requested and answer all questions reasonably asked by the medical expert for the purposes of the examination." 16 Barrett J set out a passage from Cox v The State of Queensland which summarised what was said in Prescott v Bulldog Tools Limited. This speaks of a balancing exercise to ensure a just determination of the cause as between the parties taking into account their reasonable requirements. But it should be noted that those were cases concerned with a defendant's right to defend itself in litigation the plaintiff had brought to recover damages for personal injury and where the plaintiff refused to submit to a medical examination. The circumstances of this case are entirely different. 17 The opponents who seek the examination wish to establish in proceedings they have commenced and in which as I have said no statement of claim - though ordered - has yet been filed, that Mr Angliss had no sufficient capacity to revoke the appointment of one of them as his enduring guardian and no capacity to make a will which, as we have been told, would have revoked a will in their favour. Furthermore, they wish to establish that he has no capacity to instruct a solicitor to oppose their claim. On what we were told they have a personal financial interest in ensuring the continuance of the guardianship and the non-revocation of the will. I repeat that in the summons they sought an order denying to Mr Angliss the right to draw more than $350 per week from his cheque account. 18 Equally it may be said that the defendant, Mrs Lanham, and the two sons of Mr Angliss have a personal interest in ensuring that the earlier will is revoked and that the guardianship is transferred to Mrs Lanham. What appears is a battle between two opposing sections of Mr Angliss's immediate family, children and grandchildren, to control his activities and his fortune. To carry forward the battle the opponents wish to subject him to the medical examination which, if Barrett J be right, could lead on to more serious and even potentially fatal consequences. Already there has been assembled the following expert evidence about Mr Angliss's mental health. 1. A report of 15 March 2001 by Dr Crighton, a geriatrician.

ANGLISS v URQUHART

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