Burnett v Browne

The evidence of Dr Reid ruled inadmissible 7 At the commencement of the hearing, counsel for the creditors objected to the admissibility of Dr Reid's evidence (his affidavit and the annexed report), on the ground that it does not explain how the field of specialised knowledge that Dr Reid undoubtedly possesses (psychiatry) applies to the facts assumed or observed so as to produce the opinions expressed. 8 I heard submissions on this objection on the first morning of the hearing, and ruled, before proceeding further with the hearing of the application (see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at 599 [19] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)), that Dr Reid's affidavit was inadmissible, in substance because: (1) Dr Reid had not made explicit how his field of specialised knowledge applied to the facts which he either asserted or assumed, and, in those circumstances, it was not possible for the court to make a judgment as to whether the prerequisites of s 79 of the Evidence Act 1995 (Cth) (Evidence Act) were satisfied. (2) Dr Reid had not stated or explained the grounds or reasoning that led to his opinions. (3) Dr Reid had not been asked, and certainly had not purported to opine, about a critical question, namely, whether the applicant was capable of managing her own affairs in this proceeding. 9 I said that I would give more detailed reasons for that ruling in my reasons for judgment on the application, which I now do. 10 Section 76 of the Evidence Act is headed "The opinion rule". Sub-section 76(1) provides that "Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed". 11 Sub-section 79(1) of the Evidence Act provides that "If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge". 12 As the High Court explained in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at 602-5 [31]-[42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ): Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered 'to prove the existence of a fact'. That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between 'opinion' and 'fact' or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of 'fact'. Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is 'evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving. To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence 'has specialised knowledge based on the person's training, study or experience'; the second is that the opinion expressed in evidence by the witness 'is wholly or substantially based on that knowledge' … … It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG [(1999) 197 CLR 414 at 427 [39]] (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [(2001) 52 NSWLR 705 at 743-4 [85]]) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that 'the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded'. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying 'specialised knowledge' based on his or her 'training, study or experience', being an opinion 'wholly or substantially based' on that 'specialised knowledge', will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered. … A failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight. To observe, as the Court of Appeal did, that what Dr Basden said about the volume of respirable dust to which Mr Hawchar was exposed over time was 'an estimate' that was 'contestable and inexact' no doubt did direct attention to its worth and its weight. But more importantly, it directed attention to what exactly Dr Basden was saying in his evidence and to whether any numerical or quantitative assessment he proffered was admissible. And if, as the Court of Appeal observed, his opinion on that matter lacked reasoning, the absence of reasoning pointed (in this case, inexorably) to the lack of any sufficient connection between a numerical or quantitative assessment or estimate and relevant specialised knowledge. (Footnotes omitted.) 13 And as Heydon JA (as his Honour then was) additionally explained in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 744 [85]: … it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible … 14 Along similar lines, the Full Court in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 at 420 [107]-[108] (Black CJ, Emmett and Middleton JJ) explained: The evidence in chief of a witness giving opinion evidence must explain how the field of specialised knowledge possessed by the witness, by reason of training, study or experience, and on which the opinion is wholly or substantially based, applies to the facts established or assumed, so as to produce the opinion about which evidence is to be given. If those matters are not made explicit in chief, it would normally not be possible for the Court to make a judgment as to whether the prerequisites of s 79 have been satisfied and whether the evidence is in fact admissible. Further, unless a witness states in his or her evidence in chief the grounds and reasoning that have led to the opinion, the opinion is valueless. Before the Court can assess the value of an opinion, it must know the facts on which it is based. If the opinion is based on irrelevant facts or facts that are clearly not going to be proved, the opinion is likely to be valueless. It should not be for a cross-examiner to endeavour to elicit the facts or assumptions upon which an opinion is expressed, and it would be unfair to leave such matters to the cross-examiner. Except in a straightforward, uncomplicated case, where the facts are admitted or otherwise readily identified, opinion evidence would normally be rejected under s 135 if the facts or assumptions upon which the opinion is based are not expressly stated. 15 It is necessary also to refer to the reasons of Edmonds J in Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398. That was a most unfortunate case in which his Honour had to determine whether Ms Cross was incapable of managing her affairs in relation to a bankruptcy proceeding at the time she was served with a creditor's petition. Ms Cross was at that time, and to the knowledge of the creditor, an involuntary patient in a psychiatric ward of a hospital. 16 Edmonds J summarised at 413 [61] the questions to be addressed in that case, having regard to the use of the words "in respect of the proceedings" in the relevantly identical predecessors to r 10.09 of the Rules and the definition of "mentally disabled person" (O 1, r4 and O 43, r 13(6) of the Federal Court Rules 1979 (Cth)), in determining capacity: (a) whether Ms Cross had the ability to understand that she required advice in respect of the Creditor's petition which had been left with her; (b) whether she had the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, that she could arrange such an appointment of her own accord; (c) whether she had the ability to instruct her advisor with sufficient clarity to enable him or her to understand the situation and to advise her appropriately; and (d) whether she had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as she might receive. 17 In his affidavit, Dr Reid relevantly deposed: I am able to state that there are a number of bases on which I can advance my opinions which are expressed [in the annexed report] as being Schizophrenia which dominates her mental state leading to incapacity to communicate based on fixed false beliefs and illogical form of thought. The various bases of fact for my opinions for the previous report were the interviews that I had conducted with Ms Burnett and also the supplied transcript of an interview of her son, Mr Isherwood. In addition to those bases, I have now been supplied with an as yet unsworn affidavit by Ms Burnett's daughter, Fiona Burnett, a copy of which is annexed ... I have considered that transcript and the circumstances that she describes about her mother's situation and this, in my view, further confirms my diagnosis as expressed in the report of 12 March 2021. 18 In his report, Dr Reid first set out matters of "background", including some details concerning a report by a Dr Mestitz dated 23 December 2012 that concluded that, despite the applicant's insistence to the contrary, she does not in fact suffer from sleep apnoea. Dr Reid then turned to answer the four questions asked of him (which, as will be seen, bear some similarity to the questions posed by Edmonds J in the Owners of Strata Plan No 23007 case), as follows: a) Whether the person had the ability to understand that he or she required advice in respect of the relevant legal proceeding. I had the benefit of reviewing Ms Burnett a second time and provided additional information in the form of the original sleep study by Dr Mestitz and collateral history from her son Mr Isherwood. At interview, again I found Ms Burnett to be disorganised and illogical. She continued to maintain the belief that she suffered a central sleep apnea and still maintained this belief when I pointed out that this was refuted by the assessment of Dr Mestitz. The study revealed that she had no apneas and he did not diagnose a central nor obstructive sleep apnea. I conclude that this is a delusional belief. A delusion is a fixed false belief not amenable to reason. In addition past history suggests persecutory ideas. Her son reports that at times she felt that she was being observed, her telephone was tapped and her computer infiltrated. Suspicious ideas and paranoia was played out both medically and in the legal arena. She declined a cardiac and medical stent for fear of nickel allergy and there are strong themes of persecution from legal practitioners and processors. Reports by her son suggest a deterioration of mental state over years. Diagnostically Ms Burnett suffers the psychotic illness Schizophrenia. This is based on delusions and thought disorder in the form of illogicality. She had symptoms for many years and a deterioration her social functioning. She now had [sic] thoughts that are dominated by ideas of ill health and legal matters at the expense of social harmony and enriched family relationships. b) Whether the person had the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, whether he or she could arrange such an appointment of his or her own accord. Ms Burnett's Schizophrenia dominates her mental state leading to incapacity to communicate based on fixed false beliefs and illogical form of thought. She also reports short-term memory and being easily overwhelmed emotionally. c) Whether the person had the ability to instruct the advisor with sufficient clarity to enable him or her to understand the situation and to advise the person appropriately. As stated in my own report Ms Burnett superficially presents adequately in regard to self-care and independent living. However she is labouring under delusions and disorganised communication that would undermine her judgement on major health and property decisions. d) Whether the person had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as might be received. I consider that Ms Burnett has a delusional belief about her physical health being effected [sic] from exposure to the Brickworks. This dates back to 2012. From here there appears to be a steady decline in her mental health, being preoccupied with the legal process, feeling under threat and expressing frank delusions of being observed and persecuted by others to her son. Anxiety dates back to 2003. Psychotic symptoms are unlikely to have been present continuously through the period starting at the Magistrates Court to her current predicament. I do not believe that Ms Burnett has the capacity to manage her own affairs. I feel that her delusional beliefs have dominated her thinking and pursuit of outcomes through the legal system. Given her illogical communication, I would argue that she lacks capacity. I found that she is formally thought disordered which significantly impacts on her ability to communicate with others. Her illogicality would impact on her ability to instruct or advise others. Many of her ideas are fixed and therefore she struggles to take advice. 19 I should interpolate at his point that there was a dispute about whether the word "unlikely" in the final paragraph of the above extract is a typographical error, or not. It was unnecessary to consider the point, in the view I took of the inadmissibility of the report as a whole. 20 A number of things may be said about what Dr Reid said in answer to those questions that go to the admissibility of his evidence. 21 As to answer a), his conclusion that the applicant's belief that she suffers a central sleep apnoea is delusional, because Dr Mestitz said 8 years earlier that she did not, strikes me as susceptible to the criticism that it is both irrelevant to the inquiry and forensically dubious given the age of Dr Mestitz's report. In any event, and more importantly, Dr Reid's conclusion that the applicant "suffers the psychotic illness Schizophrenia … based on delusions and thought disorder in the form of illogicality", has "had symptoms for many years and a deterioration in her social functioning", and "now ha[s] thoughts that are dominated by ideas of ill health and legal matters at the expense of social harmony and enriched family relationships" is just that - a conclusion. Absent "the grounds and reasoning that have led to the opinion, the opinion is valueless". Cf Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 at 420 [107] (Black CJ, Emmett and Middleton JJ). 22 As to answer b), Dr Reid does not, with respect, at all address the question asked of him. 23 As to answer c), the same may be said. It is also unclear what "report" he has in mind. 24 As to answer d), whatever other shortcomings it has, Dr Reid was not asked, and thus unsurprisingly did not say, whether the applicant is currently capable of managing her own affairs in this proceeding. In my view, the answer is, and was bound to be, valueless to the task at hand. 25 For those reasons, in my view, Dr Reid did not explain how his field of specialised knowledge applied to the facts established or assumed so as to produce his opinions, and did not state in his evidence the grounds and reasoning that led to those opinions. His evidence is thus inadmissible.

The evidence of the applicant's children 26 The applicant also relied on the evidence of two of her children, which was to the following effect.

Mr Isherwood 27 In his affidavit, Mr Isherwood made a number of observations about his mother's behaviour, particularly during court hearings and meetings with Mr Glyn Williams (the applicant's solicitor, who appeared on her behalf at the hearing of this application). Mr Isherwood observed that his mother had been argumentative, unwilling to accept the opinions of others, and scornful and dismissive of any challenge to her beliefs. He said that she continues to insist that, contrary to medical advice, her health issues relate solely to breathing difficulties. He also said that she had taken an "overall dominant and all-consuming negative view" about the actions of the respondents. 28 Mr Isherwood annexed to his affidavit a transcript of an interview between himself and Mr Williams dated 12 February 2021. During that interview, Mr Isherwood stated his view that, although his mother has resisted psychiatric assessment, she has mental health issues stemming from her use of prescription painkillers following a car accident in the late 1990s. He said that his mother is "obsessed" and "completely consumed" by this litigation; that her house is filled with legal papers, which she reads every day; and that she has maintained for several years that her trustee in bankruptcy is spying on her. Mr Isherwood said that he acts as her caretaker by performing tasks such as mowing her lawn and checking the oil in her car. 29 In cross-examination, Mr Isherwood said that he sees his mother twice a month, but speaks to her on the telephone almost every day. He said that he does not manage the financial affairs of a trust of which he is trustee, and assumes that his mother attends to this. He also said that he had never discussed the possibility of appointing someone to manage his mother's properties, banking or other affairs.

Ms Fiona Burnett 30 Ms Fiona Burnett's brief affidavit annexed a transcript of an interview with Mr Williams dated 23 March 2021. During that interview, Ms Burnett stated that she had a "fairly normal" childhood, until, when she was 16 or 17, she and her mother moved to a house near a brickworks at New Town in Tasmania. She said that from that point forward she began to notice changes in her mother's behaviour: worsening memory, paranoia, papers piling up in the house, and a fixation on the health effects of the brickworks. 31 Ms Burnett said that these changes to her mother's behaviour have worsened in the last 10 years, and that this litigation and her bankruptcy are now her mother's "entire life". She said that her mother will not accept information that does not align with her beliefs, nor will she accept her psychiatric diagnosis. She said that her mother's house is now full of stacks of paper concerning this litigation and her bankruptcy, but is otherwise neat and clean. 32 Ms Burnett said that she sees her mother once or twice a fortnight, but finds spending time with her frustrating because "every single conversation will turn into something about the court case", and because her mother "seems to think that everyone that does not agree with her is out to get her in some way and will not listen to explanations or reason". She said that her mother has often said that her trustee in bankruptcy is bugging her phone and computer. 33 In cross-examination, Ms Burnett said that, to her knowledge, her mother does her own shopping and banking and pays her own bills.

The parties' submissions 34 In his closing oral submissions, Mr Williams was unable to say more than this in support of the application: It's my submission that based on the evidence that has been put before the court by the children of the applicant, effectively, they weren't challenged as to their views, which is formed over a period of time, about the incapacity of their mother to manage her affairs in relation to this litigation. Accordingly, it's submitted that the rules are enlivened in relation to the question of incapacity of the bankrupt to properly conduct the substantive application under the Bankruptcy Act. [The parties] provided a list of authorities, your Honour, in February. The two strata title cases which have been referred to a number of times in these proceedings are instructive, particularly the decision of Edmonds J [Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398] that deals in a very thorough way with the issues that relate to the principles to be considered by a court when forming views about capacity and as to the Federal Court Rules, the decision … in Temelkovski [Owners of Strata Plan 58041 v Temelkovski [2014] FCCA 2962] also confirms that, questions of weight of medical opinion aside in this case, of course, medical opinion having been ruled inadmissible, the court can have regard to other evidence such as has been put to the court today by interested persons. In that case, the daughter of the bankrupt, Mary Temelkovski, provided evidence to the court about her mother's behaviours, responses and inability to deal with the matters in a timely manner. There was some parallel in that case to this one where there was a lateness, as such. That was a period of 12 months or so from when - so not as much lateness as in this case, but in this case I do submit that the period of September to now is relatively rapid in the course of this bankruptcy, which is heading towards its fourth year. In that case of Temelkovski, the other significant factor was the increase in costs which had been incurred in the administration of the estate, which raises the gravity of the issue of capacity, your Honour, overall. Those are my submissions, your Honour. 35 Mr Walker submitted that, applying the principles set out above, there was no evidence before the court sufficient to justify the appointment of a litigation representative. He submitted that the evidence adduced by Ms Burnett's two children demonstrates only that, although "their mother is very fixated on a piece of litigation", she has the ability to understand that she requires advice in relation to her application to annul her bankruptcy or set aside the sequestration order, and it is clear that she in fact sought such advice, including from Mr Williams. 36 Mr Walker submitted that Mr Isherwood had accompanied his mother to many meetings with Mr Williams prior to the commencement of this proceeding, and that Mr Isherwood was aware of the contents of his mother's application and her extensive affidavit in support of it. 37 Mr Walker also submitted that, although the evidence proves that the applicant, as Mr Isherwood put it, "has at all times … maintained her belief that her opinions were correct and should be preferred to any other opinions, for example, criticisms of the application by the Judge", the evidence does not demonstrate "that she cannot instruct her advisor with sufficient clarity to enable him to understand her and advise her. She may not accept the advice. That happens not infrequently". 38 Mr Walker further submitted that it is to be presumed that Mr Williams was satisfied in September 2020 that the applicant had the requisite mental capacity to commence this proceeding, because he caused it to be commenced on her behalf in his capacity as her solicitor (see Vishniakov v Lay (2019) 58 VR 375 at 385 [30(d)] (Derham AsJ) and the cases there cited), and that there was no admissible evidence that demonstrated any change to that position since then. 39 In reply, Mr Williams submitted that: I do make the point that, in terms of giving instructions or understanding issues that may arise, your Honour, it's not about non-acceptance of advice; it's about the capacity to alter fixed views. It's about the capacity to have insight and reflect and make decisions. If someone, as I submit has been deposed in the family evidence and, indeed, in answers to questions, has developed an obsession, and as Ms Burnett said, it's going to keep going, then that actually does meet the test …

Consideration 40 In my view, this application to appoint a litigation representative must be refused. 41 In an application such as this, the issue of whether an applicant is currently capable of managing their own affairs in a particular proceeding is not to be equated with their ability to make prudent decisions. See AJI Services Pty Ltd v Manufacturers' Mutual Insurance Ltd [2005] NSWSC 709 at [57] (Bell J). 42 Nor does it follow, merely because an applicant lacks insight to reflect, or is fixated or obsessed with the litigation, that they are, without more, incapable of managing their own affairs in the proceeding. 43 In relation to taking advice, for example, it is not unheard of for clients to refuse to take advice, even in circumstances where, objectively speaking, their interests would best be served if they did. Where psychiatric evidence is relied upon, or where a diagnosis or other matters are relied upon by people close to the applicant (here, her children), the evidence must demonstrate why it is that the diagnosis or those matters compromise the applicant's ability to provide instructions, to seek advice and to participate, if necessary, in a hearing. A good example of the sort of psychiatric evidence that will pass muster is the detailed reports of Drs Sullivan and Farnbach tendered in evidence in Slaveski v State of Victoria (2009) 23 VR 160 at 177 [6]ff (Kyrou J). And in Owners of Strata Plan 58041 v Temelkovski [2014] FCCA 2962 (Judge Manousaridis), the evidence of Ms Temelkovski's daughter was critical, explaining as it did that Ms Temelkovski: (1) did not understand when she was served with the creditor's petition the nature and possible consequences of the proceedings that had been initiated against her, including because she could not "differentiate between insignificant documents such as shopping catalogues and important letters" (at [77]); and (2) did not have the ability to instruct any advisor with sufficient clarity to enable the advisor to understand the situation and to advise her appropriately, including because, according to her daughter, Ms Temelkovski "was no longer capable of actually understanding the importance of information, or of retaining information" (at [78]). 44 In this case, however, essentially for the reasons given by Mr Walker, the evidence falls a long way short of that required to make an order the effect of which is to deprive a person of their fundamental civil rights under the common law, being the right to sue or defend in their own name, and to compromise litigation without the approval of the court.

Disposition 45 For those reasons, the application must be dismissed, and an order made that the respondents' costs be paid out of the bankrupt estate. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.