DD v AA; DD v Lewis; DD v PP

JUDGMENT

1. HIS HONOUR: These applications arise in relation to three notices of appeal filed by the appellant (DD) from three judgments of the Common Law Division in which damages were awarded in favour of the respondents arising from historical sexual assaults.
2. On 15 October 2021, Cavanagh J gave judgment in favour of PP in the sum of $1,273,125 plus costs (PP v DD (No 2) [2021] NSWSC 1312). On 18 February 2022, Davies J gave judgment in favour of Mr Lewis in the sum of $1,353,850 (Lewis v Doyle [2022] NSWSC 92). On 5 August 2022, Chen J gave judgment in favour of AA in the sum of $217,550 (AA v PD [2022] NSWSC 1039). In each case, lump sum costs orders were subsequently made. The amounts owing under the judgments including for costs and interest are in excess of $3.4 million.
3. At the trials in all three matters, DD had legal representation.
4. On 27 May 2022, I made an order for security for costs in an appeal that had been brought by DD against PP from the orders of Cavanagh J. I ordered that DD provide security in the amount of $32,000. In making that order, I considered the apparent merits of the appeal and doubted that they were reasonably arguable (DD v PP [2022] NSWCA 98 at [11]-[15]).
5. On 5 September 2022, DD's then legal representative wrote to my Associate stating that DD agreed to an order for the dismissal of his appeal without the need for a formal relisting. He advised that there was "…no appetite to post the security and to run the appeal at this time". The appeal was dismissed with costs.
6. On 24 February 2023, DD filed notices of appeal in all three proceedings. No notices of intention to appeal had been filed. All notices of appeal were at least several months out of time. On 9 March 2023, DD filed notices of motion in each proceeding seeking a stay of execution of the judgments. On 6 April 2023, he filed notices of motion seeking leave to adduce fresh evidence and to file and serve an amended notice of appeal. On 13 June 2023, he filed notices of motion seeking the appointment of a Mr Stuart Greene as a tutor for him without an acting solicitor on the record. The notices of motion were filed by Mr Mark Barbeliuk, DD's attorney under power. In his affidavit of 7 October 2023, Mr Barbeliuk deposes that he has held DD's power of attorney since about 2012 and "the most recent valid version was verified on 21 July 2021". This was after the hearing of the claim in PP v DD before Cavanagh J, and before the hearings before Davies J and Chen J.
7. The notices of motion were determined by Griffiths AJA on 22 June 2023 (DD v AA; DD v Lewis; DD v PP [2023] NSWCA 140). Griffiths AJA at [7] set out, without alteration, the grounds of appeal in each of the three appeals. One of those grounds (which was not a ground raised in the first appeal in DD v PP which I considered) was that DD had lacked capacity when the hearings at first instance occurred, and that there had been a denial of "proper hearings" in the absence of a "litigation guardian (tutor)". Griffiths AJA dismissed the applications brought by Mr Barbeliuk, as attorney for DD, for the appointment of a tutor to DD. His Honour observed (at [63]) that, if Mr Barbeliuk had concerns about DD's legal capacity, it was difficult to understand why he participated in the execution of the Enduring Power of Attorney dated 21 July 2021, which contained a certificate that DD appeared to understand the effect of the power of attorney.
8. There was before his Honour an affidavit of Dr Dick Quan filed on 22 May 2023. Although Dr Quan had been treating DD for almost ten months (up until the date of his affidavit), he expressed no opinion on the issue of DD's present legal incapacity (at [47]). His Honour also addressed a report of a consultant clinical psychologist and neurophysiologist, a Dr Donald Rowe, of 3 December 2020 and comments of Yehia J in her Honour's reasons of 23 March 2023 in the Common Law Division, in which proceedings for the enforcement of the judgment were adjourned, where her Honour expressed reservations as to whether DD fully understood what was happening.
9. Griffiths AJA also heard notices of motion filed by the respondents for the summary dismissal of the appeals. His Honour adjourned the claims for summary dismissal to be dealt with at the hearing of the appeals (at [86]-[87]).
10. Griffiths AJA also made orders for the provision of security for costs of the appeals. He dismissed DD's notices of motion seeking a stay of the judgments below, and adjourned his notice of motion for leave to adduce further evidence on the appeal to the hearing of the appeal.
11. On 15 and 16 August 2023, Mr Barbeliuk (presumably acting in his capacity as attorney for DD) paid the amounts of security that had been ordered in each appeal.
12. On 23 August 2023, the Registrar listed the appeals for hearing on 17 November 2023. Orders were made in each appeal for the filing and service of a red appeal book by 20 September 2023 and for the service of DD's submissions by the same date. The appeals were stood over for further directions on 25 September 2023.
13. On 22 September 2023, three notices of motion were filed. Each was signed by DD as appellant and also by Mr Barbeliuk for the appellant acting under his power of attorney. On 25 September 2023, Mr Barbeliuk appeared for the appellant. The orders made on that day include the following: "Stood over to a Show Cause directions 4 October 2023".
14. On 4 October 2023, Mr Barbeliuk again appeared for DD before the Registrar. The Directions Hearing Adjudicator's sheet for that day records as a note "NOM filed 22/09/23 listed for referral on 9/10/23 along with Show Cause listing".
15. As indicated above, there was not a single notice of motion filed on 22 September 2023, but three notices of motion. One sought an order that Griffiths AJA disqualify himself from the proceedings. Clearly I cannot deal with that notice of motion which, in any event, is hypothetical.
16. A second notice of motion sought the following orders: "1. The appellant is granted leave to file and serve the subpoenas in the form presented to the Court during this Notice of Motion. 2. The appellant is granted leave to file and serve the Notice to Produce in the form presented to the Court during this Notice of Motion."
17. Neither the affidavit of Mr Barbeliuk of 7 October 2023 read in support of the notice of motion, nor any submission made by Mr Barbeliuk or DD on the hearing of the notice of motion, identified any subpoena or notice to produce for the filing and service of which leave was sought. Accordingly, I will order that, in each appeal, the notice of motion filed 22 September 2023 seeking leave to file and serve subpoenas and a notice to produce be dismissed with costs.
18. The third notice of motion sought a review of the orders of the Registrar of 23 August 2023 and, relevantly, an order that: "3. The 22 June 2023 orders and judgment made by Griffiths AJA be set aside."
19. It also sought a timetable for the service of lay and expert evidence in support of the "amended tutor motion filed 13 June 2023". This was a reference to the notices of motion that had been dismissed by Griffiths AJA on 23 June 2023.
20. As a single Judge of Appeal I have no authority to set aside the orders of Griffiths AJA of 23 June 2023. I do have authority to review the orders made by the Registrar on 23 August 2023 that provided for the filing and service of the red appeal book and DD's submissions and for the listing of the appeal for hearing on 17 November 2023. No reason was advanced for reviewing those orders, except Mr Barbeliuk's contention that DD is a person under legal incapacity and that the appeals should be stayed until a tutor is appointed. But as the application for the appointment of a tutor to DD was dismissed, the Registrar was correct in setting the appeals down for hearing and giving directions.
21. The notation that the matters were listed "for show cause" did not explicitly state what cause any party might be required to show but is to be understood as a requirement that DD should show cause as to why the appeals should not be dismissed for want of prosecution. It would not be appropriate to dismiss the appeals for want of prosecution where there is an undetermined application for review of the orders of Griffiths AJA of 22 June 2023. The likely result of doing so would be that the hearing listed for 17 November 2023 would be vacated. DD would be entitled to seek review of any such order and insist on the allocation of a hearing date for his application to review the orders of Griffiths AJA. That application was filed well out of time, but is not on that account a nullity. Time for filing the notice of motion could be extended. The likely result would be further delay.
22. Nor would it be appropriate to deal with an application for summary dismissal of the appeals for want of prosecution when Griffiths AJA had referred the respondents' notices of motion for summary dismissal to a hearing before a Bench of three on the hearing of the appeal for reasons his Honour gave (at [86]).
23. DD's notice of motion seeking the setting aside of the orders of Griffiths AJA sought a timetable for the serving of further evidence.
24. I see no need to make orders for the serving of further evidence in relation to DD's application to review orders of Griffiths AJA of 22 June 2023. All evidence that any party might propose to rely upon, either on the review of the orders of Griffiths AJA, or for the summary dismissal of the appeal, should have been already filed and served.
25. As matters presently stand, no appeal books have been filed and DD has not filed his submissions in support of his grounds of appeal. He has not obtained the consent of anyone to act as tutor for DD.
26. There is no reason to interfere with the Registrar's orders of 23 August 2023 that required DD's submissions on the appeal to be filed and served by 20 September 2023. If DD remains in default of the Registrar's orders of 23 August 2023, that is a matter that can be dealt with by the Court of Appeal on the hearing of the appeal on 17 November 2023 or the motion for summary dismissal.
27. Mr Barbeliuk's affidavit of 7 October 2023 attaches a letter from Dr Quan of 3 October 2023, in which Dr Quan expresses the opinion that, from at least 2020, DD has limited understanding of things as he has dementia. Dr Quan states that he has been informed by DD's lawyer (whom he does not identify) that DD "…exceeded the courts [sic] rules and guidelines as a person under legal incapacity" and states that he is of the opinion that DD has: "…remained under legal incapacity from the time he was released from prison in July 2022 and my treating him on 7 July 2022 to the present day. He does not hold the cognitive skills to understand proceedings he is involved in, or give component [sic] legal instructions."
28. The opinion is not verified.
29. The respondents have not filed any affidavit containing any contrary medical opinion. In his reasons of 22 June 2023, Griffiths AJA said (at [71]) that: "[71] In the event that appropriate medical evidence is obtained which establishes that the appellant is under legal incapacity (and the other relevant requirements are addressed), appropriate steps can be taken to have the matter considered by this Court."
30. No new notice of motion has been filed seeking the appointment of a tutor for DD, but it is clear through Mr Barbeliuk that DD will rely on Dr Quan's letter of 3 October 2023 as providing a ground for setting aside the order of Griffiths AJA of 22 June 2023.
31. The respondents have not applied for an order to have DD medically examined by another doctor.
32. If the respondents object to Dr Quan's letter of 3 October 2023, or require his attendance before the Court of Appeal on 17 November 2023 for cross-examination, notice of that objection or requirement should be given by the respondents to DD, through his specified contact email address within 7 days.
33. As I have said at [26] above, there is no occasion to make any additional order for DD to serve submissions. The Registrar's orders of 23 August 2023 should be complied with. The submissions should address all the matters that will be before the Court on 17 November 2023. Whether or not DD's failure to comply with the orders of 23 August 2023 is rectified, orders should be made for the filing and service of submissions by the respondents.
34. For these reasons in each appeal I make the following orders: 1. Dismiss with costs the appellant's notice of motion filed on 22 September 2023 seeking the grant of leave to file and serve subpoenas and a notice to produce. 2. Stand over paragraph (3) of the notice of motion filed on 22 September 2023 which seeks an order that "the 22 June 2023 orders and judgement made by Griffiths AJA be set aside" to the hearing of the appeal on 17 November 2023. 3. Otherwise dismiss the notice of motion. 4. Stand over the "show cause listing" ordered by the Registrar on 4 October 2023 to the Court of Appeal on 17 November 2023 to be considered with the respondents' adjourned notices of motion for summary dismissal. 5. Order that, within 7 days, the respondents advise the appellant: 1. whether they object to the report of Dr Dick Quan dated 3 October 2023, which is annexure D to the affidavit of Mark Barbeliuk dated 7 October 2023 and, if so, the grounds of any such objection; and 2. whether they require Dr Quan to be available for cross-examination on the hearing of the application in paragraph 3 of the appellant's notice of motion filed 22 September 2023. 1. By 10 November 2023, respondents file and serve submissions in respect of the matters listed for hearing before the Court of Appeal on 17 November 2023. 2. The costs of the hearing on 9 October 2023 in respect of the notice of motion filed by the appellant on 22 September 2023 consisting of ten paragraphs be costs in that notice of motion.