Leanne Thurling was appointed as the tutor to her father Leslie Coffey, the plaintiff in these proceedings, on 23 February 2015. That appointment was 3 days before the commencement of the hearing in these proceedings in February. On 13 March 2015 Yvette Latu, the applicant and second defendant, filed a notice of motion to remove Leanne Thurling as tutor. The motion was argued on 19 March 2015. The applicant is successful on the motion and removes Leanne Thurling as the plaintiff's tutor for the reasons that follow.
This is my second judgment in these proceedings. It should be read with my earlier judgment: Coffey v Coffey [2015] NSWSC 137. Events, matters and persons are referred to in both judgments in the same way. It is not necessary to recount all the facts in this judgment. The applicant on the motion, Yvette Latu, appeared in person. Mr H. Durack of counsel appeared for the respondent/plaintiff.
[2]
Appointing and removing a tutor in proceedings
Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), Division 4, rr 7.13 - 7.18 confer power to appoint a tutor to conduct proceedings on another person's behalf. The purpose of that power is to provide a person under legal incapacity, including a person who is incapable of managing his or her affairs (UCPR, r 7.13), with competent decision-making in relation to a proceeding.
Leanne Thurling was appointed as Leslie's tutor without an order of the Court. UCPR, r 7.15(1) permits this form of appointment. But the Court retains overall supervision over a party's conduct of proceedings through a tutor. This supervision is a necessary reflection of the law's long-standing presumption that a person of full age is capable of managing his or her affairs, until the contrary is proved: Attorney-General v Parnther (1792) 3 Bro CC 441, at 443; 29 ER 632, at 634 and see Murphy v Doman (2003) 58 NSWLR 51 at 58 [34] - [36] per Handley JA. The presumption is also reflected in the rule that if a person's legal incapacity comes to an end, the tutor cannot continue to conduct the proceedings: Brown v Weatherhead (1844) 4 Hare 122; 67 ER 586.
Although a tutor has been appointed and faces a motion for removal, Leslie Coffey takes on the practical burden of establishing that the appointment of the tutor continues to be justified in the circumstances.
UCPR, r 7.18(5), sets out the necessary evidence in support of a motion to appoint a tutor:
"(5) In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include:
(a) evidence that the party for whom a tutor is to be appointed is a person under legal incapacity, and
(b) evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity."
In considering a motion to remove a tutor, similar matters are appropriate for consideration. The first matter is directed to the person for whom the tutor has been appointed, and the second and third to the appointed tutor: (1) whether the appointor of the tutor is a person under legal incapacity; (2) whether the tutor consented to being appointed; and (3) whether the tutor has any interest in the proceedings adverse to the interests of the person under legal incapacity. The principal contest on Yvette Latu's motion is directed to the first of these matters. Some consideration is given below to the other matters.
[3]
Is Mr Coffey a person under legal incapacity?
Acting in her capacity as tutor Leanne Thurling advanced a number of arguments on behalf of Leslie Coffey to justify the continuation of her appointment. Leslie Coffey's first argument was based on the operation of the Guardianship Act 1987 ("Guardianship Act"). The UCPR are promulgated under the Civil Procedure Act 2005 ("CPA") which uses terms that apply to the UCPR. CPA s 3(c) defines a "person under legal incapacity", as including "a person under guardianship within the meaning of the Guardianship Act". Were Leslie Coffey able to show that he is a person "under guardianship" under the Guardianship Act, he would be entitled to appoint a tutor under the UCPR.
On 18 August 2011 Leslie Coffey and Leanne Thurling executed an instrument titled "Appointment of enduring guardianship of Mr Raymond Coffey". By that instrument Leslie Coffey appointed Leanne Thurling in the following terms: "to be my enduring guardian if because of a disability I am partially or totally incapable of managing my person". The conditionality of that wording reflects the statutory scheme. Guardianship Act, s 6A(a) states that an appointment of an enduring guardian under Part 2 of the Act "has effect only during such period of time as the appointor is a person in need of a guardian", which under s 3 means a person "who, because of a disability, is totally or partially incapable of managing his or her person". The appointment of Leanne Thurling as guardian is thus conditional: it takes effect upon Leslie Coffey becoming at least partially incapable of managing his person. This guardianship instrument is not proof, without more, that Leslie Coffey is a "person under legal incapacity". Rather the instrument just remits the analysis to the fundamental question of whether Leslie Coffey is under a legal incapacity.
Leanne Thurling next argued that the available evidence supports the conclusion that Leslie Coffey is under a legal incapacity. The test to be applied in determining Mr Coffey's legal capacity, or lack of it, is that which Chadwick LJ applied in Masterman-Lister v Brutton & Co [2003] 3 All ER 162 (accepted by Price J in Farr v Queensland [2009] NSWSC 906 at [15] and by Hammerschlag J in Murray v Williams [2010] NSWSC 1243 at [26]):
"[ … ] the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law - whether substantive or procedural - should require the interposition of a next friend or guardian ad litem."
Handley JA's statement on the same subject in Murphy v Doman (2003) 58 NSWLR 51 at 58 [34]-[36], further assists in identifying the applicable test:
"[34] The definition of an incompetent person in the Rules reflects the earlier law. See Martin v Azzopardi (1973) 20 FLR 345 at 347 per Fox J. At 348 Fox J referred to evidence that the plaintiff was incapable of managing his own affairs and continued:
If, and as soon as, the plaintiff was in this condition he would be unable to retain a solicitor. That is to say, he would not have the mental capacity to understand the nature of the acts or transactions which he would be authorising.
[35] The cases do not consider the level of mental capacity required to be a "competent" litigant in person but it cannot be less than that required to instruct a solicitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.
[36] There is a presumption of sanity which applies unless and until the contrary is proved. Attorney-General v Parnther [1792] EngR 2455; (1792) 3 Bro CC 441, 443 [29 ER 632, 634]; M'Naghten's Case (1843) 10 Cl&Fin 200 at 210 [8 ER 718, 722]."
Mr Durack for the respondent to this motion submitted that there were two evidentiary bases for a finding of legal incapacity here. Firstly, he tendered a referral from Leslie Coffey's treating doctor, Dr Krukerink of Brindabella Family Practice, to Mental Health Service Queanbeyan, which states that Leslie Coffey has been receiving ongoing care for bipolar II disorder and takes medication to control that disorder. Secondly, Mr Durack relies upon an affidavit of Leanne Thurling sworn 17 March 2015 in which Leanne Thurling deposes that her father suffers from "acute anxiety and depression", although "when he is not in a state of anxiety he is able to make decisions and instruct his legal representative".
In relation to the timing of the appointment of a tutor only three days before the trial commenced, Mr Durack explains that this appointment was precipitated by an incident that Leanne Thurling claimed occurred on 23 February 2015. On that day, Leanne Thurling says that Ronald Coffey (who is the first defendant in these proceedings, Leslie Coffey's brother and Yvette Latu's father) visited Leslie Coffey at his house and warned him that he was going to lose his pension and his home, and that he would have to find more money to pay the bills of the estate. Mr Durack submits that his instructions were that this particular meeting was the "straw that broke the camel's back", following which Mr Leslie Coffey became so upset that his solicitor, Ms White, Leanne Thurling and he decided that it would be in his best interests to appoint Leanne Thurling as tutor to represent his interests in the proceeding in the future.
But that evidence is not sufficient to establish to the Court's satisfaction that Leslie Coffey was incapable of managing his own affairs or was under a legal incapacity at the time that Leanne Thurling was appointed his tutor and since. No expert evidence was submitted to the Court regarding Leslie Coffey's current cognitive capacity. Nor was evidence adduced of the extent to which his suffering from bipolar II disorder would affect his ability to manage his own affairs. The evidence does not descend to the detail of identifying whether Leslie Coffey's medication is effective to control his bipolar II disorder. Before a tutor may be appointed, the UCPR require that a person be incapable of managing his or her own affairs; not merely that the person finds doing so to be difficult. At present there is no clear evidence of such incapability. Thus there is no persuasive evidence that Mr Coffey must have a tutor.
Leanne Thurling and Leslie Coffey further supported her appointment as tutor by giving an account of the effects on him that an encounter between Yvette Latu's side of the family and Leslie Coffey on 23 February 2015 just prior to the hearing.
But the rather scant evidence of the 23 February 2015 incident does not compel the conclusion that Leslie Coffey is a person under legal incapacity. Leanne Thurling says that this incident was "the straw that broke the camel's back" for Leslie Coffey, causing him to require a tutor. Only hearsay evidence of the incident has been adduced. Leanne Thurling's affidavit deposes to Leslie Coffey being "very stressed" and "extremely concerned" after the incident, to the point that Leanne Thurling and Leslie Coffey decided that "it was more appropriate" that Leanne Thurling act as tutor. Those statements do not show that Leslie Coffey met the required threshold of legal incapacity so as to justify the appointment. Moreover, the timing of the appointment of Leanne Thurling as tutor to Leslie Coffey, coming as it did only three days prior to the hearing, raises many questions. Leslie Coffey presumably was able to conduct these proceedings satisfactorily and without a tutor up to this point. The evidence that a tutor was required from this time on words would therefore need to be very clear. No such evidence was adduced.
The Court is not persuaded that Leslie Coffey is a person under legal incapacity. That does not mean that the applicant has proven the inverse contention: that Leslie Coffey has legal capacity. This is not a case where either the applicant or the respondent bears the onus of proof, but rather one where the Court will act to protect the administration of justice through the appointment of tutors where necessary.
In this instance that now requires the removal of Leanne Thurling as her father's tutor. That will not prevent Leslie Coffey or Leanne Thurling from providing further evidence justifying his legal incapacity and applying to reappoint Leanne Thurling as tutor. But in the interim, the Court will not permit her appointment as tutor to stand.
The Court has observed in the course of argument that the difficult encounters between Yvette Latu's family and Leslie Coffey such as that which occurred on 23 February 2015 just before the hearing, could be avoided in the future through a Court direction that the parties only communicate in future through lawyers. The Court has now made directions to that effect. This may well be sufficient to resolve this issue.
[4]
(2) Does Leanne Thurling have any interest in the proceedings adverse to the interests of Leslie Coffey?
Based upon the above reasoning, the question of any conflict between Leanne Thurley's interests and Leslie Coffey's interests does not formally arise in this case, as Leslie Coffey has not been shown to be a person under legal incapacity.
But had the point been reached, analysis similar to that undertaken recently by Kunc J in Saravinovska v Saravinovski [2015] NSWSC 128 would be necessary, to consider whether as Leslie Coffey's enduring guardian and attorney Leanne Thurling had any interests in the proceedings adverse to those of Leslie Coffey. Kunc J's reasoning in Saravinovska suggests that holding either of these positions will not by itself disqualify a person from becoming a tutor.
[5]
Conclusion and Orders
The Court has power to remove a tutor if the person for whom the tutor was appointed is not, or is no longer, under a legal incapacity. The Court is not satisfied on the evidence that Leslie Coffey is a person under a legal incapacity and will therefore remove his tutor Leanne Thurling.
The costs of this motion would normally follow the event. But Yvette Latu is a litigant in person and has no legal costs of this motion which she could ordinarily recover. But if she wishes to make a submission about the costs of this motion, that can be done in writing or at the time of some other future application in these proceedings. In the meantime the Court will merely reserve the question of the costs of this motion.
The Court will therefore order:
1. that Leanne Thurling be removed as the tutor of Leslie Coffey; and
2. that the costs of this application be reserved.
[6]
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Decision last updated: 30 March 2015