Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114

Masterman-Lister v Brutton & Co [2003] 1 WLR 1511

1 TEMPLEMAN J: An issue has arisen in the management of this litigation as to the application of O 70 of the Rules of the Supreme Court 1971 (WA), it having emerged that one of the plaintiffs was diagnosed as suffering from 'a major psychiatric illness' some time after the action was commenced. The plaintiffs were then husband and wife, but they have since divorced. Because of the sensitivity of the matters which have now arisen, I shall refer to the plaintiffs as Mr A and Ms B respectively.

2 In the action, the plaintiffs claim that the defendant, as the relevant planning authority, acted unlawfully in granting approval of an outline development plan. The plaintiffs claim also, that there was misfeasance in public office by the defendant's principal planner. It is alleged that the officer concerned, withheld certain advice from the defendant's council

with intent to injure the [plaintiffs] or in the knowledge that such injury would be the natural and probable consequence of his act or was recklessly indifferent to that consequence.

It is alleged further that the officer in question 'caused damage' in that the actions complained of

contributed to the Plaintiff's [Ms B's] psychiatric shock.

led to the Plaintiff [Mr A] suffering diminution and loss of the companionship of his wife.

See Minute of Amended Statement of Claim filed 20 March 2007, par 10.

3 On 13 January 2009, the defendant requested further and better particulars of the allegation set out above.

4 Only Mr A responded to that request. In so doing, he disclosed two medical reports relating to Ms B.

5 The first report, dated 6 March 2003, was written by a senior medical officer employed by the Department of Health at the Mills Street Centre of the Bentley Health Service. As at the date of the report, Ms B had been admitted to the centre as an involuntary patient.

6 The author of the report referred to Ms B's history saying:

She appears to have had a psychosis over the preceding 5 years, with a recent episode of manic behaviour precipitating this admission.

7 The report referred to various matters about which Ms B had spoken, and to her belief that her admission to the centre was part of a 'political plot/conspiracy'. After summarising these matters, the author reported that Ms B was

insightless re her delusions and possible hallucinations, delusions of reference and altered mood.

Her mental state examination demonstrated thought disorder, pressured speech, irritability and entitlement with a grandiose flavour (she declined to have a second opinion unless the psychiatrist came from Claremont!). She did not sleep on the ward until medicated.

[Ms B] has stated that she does not have an illness and that when made an [sic] voluntary patient she will leave hospital immediately and not take medications.

8 The second report is a discharge summary from the centre. It is dated 16 April 2003 and is signed by the same senior medical officer who was the author of the first report, and by a consultant psychiatrist.

9 The discharge summary noted that Ms B had to be confined on the locked ward, and that:

She was insightless and believed that her admission and containment was part of a political conspiracy.

10 It was said that Ms B had taken her medication and 'gradually became a little warmer and more compliant with the treatment'. However, it was said that Ms B had attempted to manufacture a series of side effects to avoid certain medication, and that the side effects were not confirmed by medical opinion. It was said further that Ms B had been given trial leave from the locked ward and that she had managed well in the community and was eventually permitted discharge. Significantly, the report concluded:

She will be followed up on the ward and a medical review will eventually be in place ...

11 I note that there is no evidence that any subsequent review has taken place.

12 Mr A and Ms B have acted in person throughout the course of this action. Initially, both Mr A and Ms B appeared at directions hearings. However, Ms B seemed generally content to allow Mr A to speak for both of them, although, of course, he could not represent Ms B. On the occasions when Ms B did speak, I regret to say that I found her contributions somewhat confusing. However, it did not occur to me that there might be any serious underlying problems.

13 In recent years, Mr A has appeared alone at directions hearings. He informed me that he and Ms B had separated. No point has been taken by the defendant about Ms B's absence, which has not had any adverse impact on the management of the action.

14 When the further and better particulars of the statement of claim, annexing the reports referred to above, were drawn to my attention, I convened a directions hearing which was attended by Mr A and counsel for the defendant.

15 I expressed my concern at the recent development and said that I would instruct my Associate to write to Ms B to enquire about her present state of health.

16 The letter was dated 9 February 2009. The two reports referred to above were attached to it. The letter contained the following passages:

Justice Templeman has asked me to inform you that these documents raise a concern about your state of health and the impact that might have on the action.

His Honour appreciates that these documents are now six years out of date. However, they are the only materials currently available in relation to this issue. It is not known whether any review has been carried out subsequently.

In order to be satisfied that it is appropriate for you to continue to represent yourself in the action, Justice Templeman would require you to produce a report from a registered medical practitioner of your choice to the effect that you had recovered from the illness referred to in attachments 1 and 2 and that you were now fit to represent yourself in the action.

The medical practitioner concerned would be required to swear an affidavit exhibiting his or her report and exhibiting also the attachments 1 and 2.

The medical practitioner should also, if possible, express an opinion about your fitness to participate in, and make decisions at, the mediation which took place on 30 September 2008.

17 Ms B responded in a letter dated 9 March 2009. She said she wanted to object

as I am alleging malpractice and a 'frame up'. I have already made this argument and submitted it in my evidence and testimony statements.

Ms B went on to request that the matter 'might be further debated and that I might contribute, if possible, from FNQ [far north Queensland] due to limited funds'.

18 In response to Ms B's request, I convened a further directions hearing, which took place on 26 May. The hearing was attended by Mr A in person, and Ms B by telephone. The defendant was represented by counsel. The arrangements were such that Ms B was able to hear all that was said in court: and all those present in court were able to hear Ms B.

19 After hearing submissions from counsel for the defendant, I reiterated to Ms B the concerns set out in my Associate's letter.

20 In response, Ms B said she alleged 'malpractice, complete and utter malpractice'. She said that the document - which I take to be a reference to the medical reports - was inaccurate. She said the report was based on Mr A's testimony and that of her mother, which she did not believe should have been accepted in good faith. She said there had been no sufficient investigation of family history, and that she believed bipolar disorder was 'substantively genetic'.

21 A little later in the dialogue I had with Ms B she said:

The diagnosis described - I feel it is improperly worded, biased based upon biased testimony. I was hardly able to speak at all myself on my own behalf. I was unable to consult a lawyer. I feel that a mental institution is being used as a prison but I feel it's a collaboration with state corruption ... (ts 119 - 121)

22 Ms B informed me that she could not afford to instruct a lawyer (ts 122); that she was living 'basically in a car (indistinct) campsite' (ts 124); and that there was no one to whom she could turn, other than a lawyer, to act in her interest (ts 125 - 126).

23 Ms B had expressed similar concerns in letters dated 5 and 15 February 2009 sent to the defendant's solicitors. The letters are exhibited to an affidavit sworn 17 April 2009 by Barbara Kathleen Callanan the solicitor having the conduct of the matter for the defendant.

24 In her affidavit, Ms Callanan said that the defendant would be relying on the letters in support of any application it might make for a declaration as to Ms B's mental capacity to represent herself in these proceedings, without 'a guardian ad litem' [sic - a next friend].

25 I have given careful consideration to the letters, which run to some 18 handwritten pages. In each letter, Ms B said she had no reasonable access to a private computer and that she was residing in a camp ground.

26 In the first letter, Ms B referred to documents she intended to submit: as I understand it, as evidence at trial. These included photocopies of customs and immigration stamps as evidence a world tour made by Ms B

upon divorce, driven out of WA by uninvestigated death threats, callous conduct by police, psychiatric defamation founded upon slander or interested testimony and 'behaving badly' (husband [Mr A] and mother, who repeatedly trespassed) and 'frame up' by police and family.

Evidence of medical malpractice associated with government misconduct, consequent ruination of family relationships and police misconduct and already submitted psychiatric report; said being accurate, based upon unreliable testimony and a brief conversation under duress and imposed medication with no - as was requested by [Ms B] - legal representation after unlawful apprehension.

28 Counsel for the defendant submits that, having regard to the evidence to which I have referred above, and to Ms B's responses to my questions at the directions hearing, I should stay the action, pending either the production of a medical report concerning Ms B, or until the court, of its own motion, determines whether a declaration ought now be made about Ms B's mental capacity.

29 Underlying these submissions is the proposition that Ms B is a person under a disability, within the meaning of O 70 r 1(c) of the Rules of the Supreme Court. That is:

A person ... who, by reason of mental illness, defect or infirmity, however occasioned, is declared by the Court to be incapable of managing his affairs in respect of any proceedings to which the declaration relates.

30 In L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, the Full Court of the Federal Court referred to the observation by Kennedy LJ (with whom Potter and Chadwick LJJ agreed) in Masterman-Lister v Brutton & Co [2003] 1 WLR 1511 that:

... even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists. [17]

Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30; AJI Services Pty Ltd v Manufacturers' Mutual Insurance Ltd [2005] NSWSC 709 and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence. There will, however, be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination. And there will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party: see, for example Murphy v Doman at [37] (Handley JA); AJI Services Pty Ltd v Manufacturers Mutual Insurance Ltd at [57] (Bell J). [27]

32 On the basis of that authority, I accept that the court has jurisdiction to declare a person to be under a disability without the benefit of a medical opinion. However, a declaration of that kind is not to be made lightly. Although such a declaration would be made on the balance of probabilities, it is important to have regard to the decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, expressed by Dixon J:

... the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. (362 - 363)

33 As I have said, the medical evidence of 2003 raised doubts in my mind as to whether Ms B was then suffering from a mental illness, defect or infirmity which, if unresolved, would render her incapable of managing her affairs in relation to this action. The evidence to which I have referred above, and Ms B's responses to my questions at the directions hearing, have not resolved that doubt. However, it is to be noted that the medical opinion was given six years ago: and did not address the matters to which O 70 relates. Further, the second of the medical reports referred to Ms B responding to medication and managing well in the community.

34 In my view, these, and no doubt other matters, would need to be explored in some detail before any judgment could be made as to Ms B's present ability to manage her affairs in relation to this action. Clearly, if Ms B continues to be in financially straightened circumstances and continues to live as she is at present, she will have great difficulty in prosecuting the action. However, that is not to say that she lacks the mental capacity to do so.

35 I accept entirely, the submission by counsel for the defendant that the court must be careful to ensure the integrity of its proceedings: and, relevantly in the present context, to be satisfied that litigants have sufficient capacity.

36 It was for that reason that I instructed my Associate to send Ms B the letter dated 9 February.

37 Ms B is unable or unwilling to provide a further medical report. That is her prerogative. However, for the reasons set out above, it does not follow that the court, of its own motion, should declare that she is a person under a disability. Indeed, I note that O 70 r 3(6) provides:

Where, after the commencement of any proceedings, a party thereto becomes a person under a disability, an application shall be made to the Court for the appointment of a next friend or guardian ad litem, as the case may be, of that party.

This suggests that the court should not act of its own motion, but on an application. This is only to be expected. As Kennedy LJ said in Masterman-Lister v Brutton:

It is common ground that all adults must be presumed to be competent to manage their property and affairs until the contrary is proved, and that the burden of proof rests on those asserting incapacity. [17]

38 My Associate's letter of 9 February 2009 was in the nature of a direction. However, I refer again to the judgment of Kennedy LJ in Masterman-Lister v Brutton, where his lordship said:

The judge may consider that he would be assisted by seeing the person alleged to lack capacity, a view expressed by Wright J in this case. In my view it would be wrong to attempt to compel that person to attend, but the judge can always make his view clear, and in most cases that indication, together with a reminder as to the burden of proof, should suffice. [17] (emphasis added)

39 In the present case, my 'indication' has proved to be insufficient. But if I could not compel Ms B to attend, in order to assess her capacity, I do not think I could compel her to provide a medical report. That being so, it would be inappropriate to stay the action pending the provision of such a report.

40 The result is that if the defendant wishes to have Ms B declared to be a person under a disability, it must make an application. Both Mr A and Ms B would need to be given proper notice of any such application, and to adduce such evidence as they thought fit.

41 I will therefore adjourn the directions hearing for sufficient time to enable the defendant to consider its position.