33 Dr Lewin also agreed with Dr Potter that on the assumption that the defendant's anxiety is capable of being addressed, whether with professional counselling or medication or both, her ability to receive information and process it, and thereby to meaningfully participate in the proceedings, would be expected to improve. He also agreed that the extent to which that might occur would be dependant upon her voluntary participation.
34 Both doctors agreed that an adjustment disorder was a fluctuating condition and, while the underlying physiological or psychological state might be present, the degree to which the symptoms of anxiety and or depression are manifest at any one time is dependent upon a range of variables. In Dr Potter's view, whilst ever the stress of litigation is immediate the defendant is likely to suffer severe and debilitating anxiety. However, if she is preoccupied with other matters, the symptoms of anxiety will likely diminish. Dr Lewin made observations of that very kind in the course of his consultation with her. When the focus of his inquiry was on her legal predicament she was distressed, tearful and experienced difficulty in expressing herself, whilst at other times in the course of the same consultation she presented quite differently. Dr Lewin sought to emphasise that the defendant's mood state and her state of arousal or anxiety was very much dependent upon and responsive to circumstances in which she found herself. In that sense Dr Lewin was firmly of the view that she did not suffer from a morbid psychiatric condition but rather from a condition which was treatable.
Is the defendant under a legal incapacity?
35 Taking into account all the evidence, I am not satisfied that the defendant has established that she is suffering under a legal incapacity, as defined. In particular, there is no evidence that she is incommunicate or that she is unable to receive communications or express her will with respect to her property or affairs. At its highest, the evidence is that commensurate with her current and persisting psychiatric disorder fluctuating levels of anxiety render her resistant to participating in the litigation. Despite the earnest endeavours of her daughter and her solicitor neither have been able to overcome that resistance. In addition, by reference to what the defendant apparently reported to a psychologist in Taiwan in October 2007, it seems to me entirely possible that she may have been encouraged to believe that her daughter could attend the hearing in her place and that since that time she has taken understandable comfort, and perhaps refuge, in that belief. While the defendant may prefer to have her daughter assume control of the proceedings, the appointment of a tutor under the UCPR is not an option that a party to litigation may exercise but a serious and significant step that may only be taken with the approval of the Court and only where the circumstances justify it. As I have said, I do not regard the appointment as warranted in this case.
Parens Patriae
36 Although the defendant's counsel did not expressly abandon the application to appoint Ms Chen as a tutor under the Rules he acknowledged that the weight of the evidence did not compel a finding in her favour. In the alternative, he urged me to exercise the inherent and discretionary parens patriae jurisdiction and to appoint Ms Chen as a tutor, as if under the Rules, on the basis that she had what he described colloquially as "mental block" which is preventing her from providing ongoing instructions to her lawyers. He submitted that in the interests of the future conduct of the proceedings generally it is expedient to relieve the defendant of providing those instructions and to have her daughter take on that role and responsibility in her place.
37 I was taken in that connection to the judgment of Young CJ in Eq in Re P [2006] NSWSC 1082 where his Honour exercised his discretion in favour of a litigant in what is said to be analogous circumstances. The plaintiff submitted that his Honour was dealing with a situation that is on any number of bases distinguishable from the circumstances of the present case.
38 In the first instance, the litigation with which his Honour was concerned was part heard in the District Court. The matter was apparently heard by his Honour ex parte, the District Court judge being wrongly of the view that she had no jurisdiction to appoint a tutor under Part 7 of the UCPR. In those circumstances the matter was urgently removed to this Court. In the second instance, his Honour noted, without apparently undertaking any searching inquiries, that a medical report tendered on the application did not support a finding of mental disability, such that the defendant was unable to express his will with respect to his property or affairs, but that he had what his Honour referred to as:
"…a problem which stops him from giving proper instructions to his layers and the lawyers would have difficulty in doing what they were instructed by the client because they could not be assured that his mind was proceeding his mouth."
39 In effect his Honour concluded that the defendant had got himself into a mental state where he could not give meaningful instructions. In those circumstances, whilst his Honour would appear to have been of the view that the defendant did not satisfy the definition of a person under legal incapacity as defined in s 3 of the Civil Procedure Act, he nevertheless regarded the court's protective power under the patriae jurisdiction as appropriately invoked to deal with the situation in the somewhat unique circumstances that presented.
40 By contrast, I have the benefit of three reports upon which each doctor has been cross-examined, each of which make it clear that the defendant is an intelligent woman who is able to deal confidently with her affairs in other respects. In addition, the authors of the reports express the unqualified view that with the assistance of medication and or counselling the anxiety which is currently overwhelming the defendant will abate to the point where she can participate in the litigation at an appropriate level.
41 While I accept that Ms Sadiq considers she is at an impasse, I am by no means confident that the defendant has had sheeted home to her, in an appropriate way, that her desire to have her daughter assume conduct of the proceedings in her place is not an option that is for her to choose. There is no evidence before me to indicate that with the provision of a carefully and emphatically worded advice to that effect, and the assurance that medication or counselling might well enable her to participate, that she will persist in avoiding focus on the litigation.
42 The plaintiff's counsel also sought to emphasise as a point of distinction between this case and in Re P that I would not be satisfied that Ms Chen is an appropriate person to act as a tutor when her clear evidence is that her mother will not speak to her meaningfully about the case in any event. Be that as it may, I am not satisfied that an adequate basis has been made out on the current evidence for the appointment of a professional tutor in circumstances where I am not persuaded that the defendant is incapable in the relevant sense of providing ongoing instructions to her solicitor so as to enable the litigation to proceed.
Orders
43 Accordingly, the orders I propose are as follows:
- The notice of motion is dismissed.
- The defendant to pay the plaintiff's costs.
- Liberty to apply on 3 days notice for any further directions to facilitate the progress of the substantive proceedings.
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