HER HONOUR: These proceedings are listed for hearing today for assessment of damages.
The plaintiff, by statement of claim filed on 22 December 2021, brought proceedings against the defendant for sexual assaults which occurred in or about 1974 and which were the subject of criminal convictions at the time.
The defendant was served with the statement of claim. A statement of particulars was also served, and I have seen from the list of documents attached to it that certain medical evidence was also included, including a report from a psychiatrist which was current at the time.
Shortly after these proceedings were commenced, the defendant consulted a solicitor in Taree, where he resided, who provided him with some assistance including representation. It rapidly became apparent to all concerned that the defendant required some form of assistance in the form of a tutor, and very extensive case management of this issue took place before the Judicial Registrar. For example, the plaintiff's former solicitors allowed an extension of time for the defendant to submit an application with the New South Wales Trustee and Guardian, the Judicial Registrar noting that he had no power under the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") to make such an order and effectively rescinding a further order to this effect on 12 April 2022.
An application was then made by the plaintiff's former solicitors to NCAT for an appointment. This application was dismissed by NCAT, according to the solicitor's letter to the Judicial Registrar of 25 August 2022, because the defendant did not have standing pursuant to s 9(1)(d) of the Guardianship Act 1987 (NSW) to make the application.
However, the plaintiff's former solicitors did not rest in their attempts to progress the matter. They next sought a further adjournment for the plaintiff's solicitors to approach the President of the Law Society, conformably with recommendations of Slattery J in Iskandar v Mahbur [2011] NSWSC 1056, which included examining how a tutor could be found and paid, consideration of the relevant pro bono or other organisations would be of assistance, and the staying of the hearing of the proceedings until these issues were resolved. I have had the benefit of reading that decision, and it represents an admirable course taken by Slattery J to deal with a very difficult situation which is not the subject of rules of any certainty in the UCPR. Indeed, one of the problems is that where there is a non-appearance of a person under a legal capacity, this Court is bound by the UCPR r 7.17 which states:
7.17 Non-appearance of person under legal incapacity (cf SCR Part 63, rule 6; DCR Part 45, rule 6; LCR Part 34, rules 3A and 7)
(1) Subject to subrule (2), the plaintiff in proceedings against a defendant who is a person under legal incapacity may take no further step in the proceedings following service of the originating process until a tutor has entered an appearance on behalf of the defendant.
Note -
If no such appearance is entered, the plaintiff may apply to the court under rule 7.18 for the appointment of a tutor of the defendant, or for the removal and appointment of such a tutor.
(2) In the case of proceedings in the Local Court against a defendant who appears to be a person under legal incapacity by reason only of his or her minority -
(a) the plaintiff may serve on the defendant a notice requiring a tutor of the defendant to enter an appearance in the proceedings, and
(b) unless the court orders otherwise, the plaintiff may continue the proceedings as if the defendant were not a person under legal incapacity if such an appearance is not entered within 28 days after service of the notice.
Notably, for the Local Court, there is an exception to this rule where that person is under 18 years, in which case the case may proceed if notice is given. However, it would appear from UCPR rule 7.17 that no allowance at all is made for persons under a disability of the kind that I think it is agreed the defendant suffers, and this puts me in a difficult position.
If an incapable person who has been served with an initiating process, or a defendant who has become incapable after having been served, does not himself appoint a tutor, the Notes in Ritchie's Uniform Civil Procedure NSW ("Ritchie's" or "the Notes") for UCPR 7.18 suggest that the plaintiff could apply for the appointment of a tutor, and that this occurred in Michaletos v Stivactas [1992] ANZ ConvR 90, where Waddell CJ in Eq noted at p. 13:
"There was other medical evidence at the trial but this was principally directed to the question whether the plaintiff had and has adequate mental capacity to commence and continue these proceedings without the appointment of a tutor. The defendant contends that she has not. A notice of motion was filed on his behalf on 7 September 1990 seeking orders that the plaintiff submit herself for a medical examination and that proceedings be stayed until the appointment of a tutor, alternatively, that a tutor be appointed by a solicitor nominated by the President of the Law Society of New South Wales. By consent an order was made for a medical examination and the defendant's claim that a tutor be appointed was stood over to the hearing of the principal proceedings."
The consent of such a solicitor or tutor must be obtained prior to the seeking of an appointment as the Court will not impose the significant responsibilities and duties of a tutor without his consent: Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200.
UCPR r 7.18 helpfully sets out what to do when there are difficulties in obtaining a tutor, but in general terms what is set out at the Notes at paragraph 7.18.3 the approach that is taken is that the Court should stay proceedings under s 67 of the Civil Procedure Act 2005 (NSW) because if the person who is under the disability is not represented, then that person under disability cannot act or take any steps on his or her own behalf. That is not what has occurred here.
The issue is the question of judicial power. This Court is a creature of statute and some of the steps set out in the Notes to UCPR r 7.18 may need to be taken by a Court with inherent jurisdiction; this seems to have been assumed to be the case by Waddell CJ in Eq in Michaletos v Stivactas.
The Notes to UCPR r 7.18 do not refer to the suggestions set out by Slattery J. However, this is a difficult and frankly unregulated situation, and the authors of the Notes have done everything they could to assist practitioners seeking guidance.
The previous solicitors for the plaintiff are to be commended for their persistent activities in doing their best to represent their client while also discharging their obligations to the defendant and to the court. It cannot have been easy for the plaintiff who, in addition to the stress and problems caused by the events which led to this litigation, had all of the disadvantages of having further delays while this problem was attempted to be rectified. I have great sympathy for all concerned.
In addition to these other problems, which I note include the Court perhaps needing to give consideration as to whether default judgment should have been entered in the circumstances, there are two other problems.
The first of these is a relatively minor one, in that a substantial amount of the medical evidence was not served on the defendant until a letter sent by registered post on 1 September 2023. I have read the affidavit of Jordan Hurrell of 5 September 2023 and I note that this was one of three letters that were sent on that date, as there was some doubt as to the defendant's address, namely to his residential address, his postal address and the disability support agency where he apparently is one of the members of that disability support workplace.
It would appear that the letter to the defendant's residential address was delivered yesterday, but there seems to be some uncertainty with the other two which still remain at the post office. Whether they were or were not, the difficulty is that the defendant only received these documents yesterday, which is well under the 28 day period in the rules. This would be a matter that could ordinarily be determined in a relatively informal way particularly as one of the documents in question is an updating report from a psychiatrist when the previous report was delivered, but it is nevertheless a significant failure to comply with the Rules.
The fact remains, however, that a substantial amount of medical evidence has not been served, and in addition, a court book has been prepared for this hearing as well as schedules of issues and damages, all of which the defendant has not seen either.
This brings me to the principal problem that I have which is that, even if the problems with the representation of the defendant and whether he requires a tutor or not, or has waived his rights to any form of consideration, could be disposed of, the defendant has been given no notice of the hearing today, other than the registered letter which he would have received yesterday afternoon. I think I may take it on judicial notice that he would not have been able to come to Sydney from Taree, if he did get this yesterday, in time to be here this morning.
The procedure to be followed where one party is absent is set out in UCPR r 29.7 which provides:
29.7 Procedure to be followed if party is absent (cf SCR Part 5, rule 9, Part 13, rule 5A, Part 34, rule 5; DCR Part 26, rule 5A; LCR Part 21, rule 2)
(1) This rule applies when a trial is called on.
(2) If any party is absent, the court -
(a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or
(b) may adjourn the trial.
(3) If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of -
(a) the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and
(b) any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff's claim or costs.
(4) If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings.
(5) Subrules (3) and (4) do not limit the court's powers under subrule (2).
A party is only "absent" if they have adequate notice of the appearing and fail either to attend or to provide the Court with a credible explanation. However, if there has been no prior notice of the hearing date (and I accept that this is the case from the material before the Judicial Registrar, the material in the affidavit of Mr Hurrell and the submissions made by counsel), the Court is in a really difficult position.
A defendant who is not before the court because they have not been told of the hearing, even where that defendant had previously been represented and relatively active, is still a defendant who has not been given sufficient notice, for the reasons set out in Facer v Wolfe [2013] NSWDC 231.
The combined effect of these three problems, in my view, makes it unwise for me to continue to hear these proceedings. I note there was already an adjournment of a hearing date from 22 August to 6 September but that was a comparatively minor matter. The Court has certainly dealt with these proceedings on the basis that it is in everybody's interests for there to be as earlier a hearing date as is possible given the difficulties in the matter.
Two of the problems can be cured very easily by an adjournment. The first is that if the matter is adjourned and the defendant is given proper notice, the problem of compliance with UCPR r 29.7 falls away, and the same is the case in relation to the medical evidence. The real difficulty is what to do about the obligations that this Court has to persons who are under a disability that have not taken steps to assist their opponent or the Court by having a person appointed.
It certainly looks as though the persons advising the defendant at an earlier stage were intending to approach the New South Wales Trustee and Guardian but, regrettably, it would appear that this has fallen by the wayside. What I propose to do is to adjourn the proceedings so that the plaintiff can take such steps as they may be advised in order to regularise the difficulties of how to deal with the defendant's absence in circumstances where I think I have to regard the orders of the Judicial Registrar as confirming that the defendant is a person requiring a tutor to be appointed. I cannot simply ignore the prior history of the matter or the obvious problems that the defendant has.
Accordingly, I propose to vacate the hearing date but to reserve costs, this being the order sought by Mr Del Monte, and to make orders for the plaintiff to provide some form of timetabling for orders by this Court of the kind apparently considered possible by the cases set out in the Notes, as occurred in Michaletos v Stivactas, or such other order under UCPR r 7.18 and/or the suggestions made by Slattery J in Iskandar v Mahbur.
This is a very substantial claim. The plaintiff is claiming a sum of $4.5 million. Whether or not that sum is awarded, I understand that the defendant owns a modest dwelling in the country and the effect of any judgment against him will be that he will lose that home. As a person who is not here to defend himself by reason of him simply not knowing about the hearing date, I have to take into account the Court's obligations to him as well as the obligations to the plaintiff.
Accordingly, the orders I propose to make are as follows:
1. By reason of the insufficient notice given to the defendant of the hearing of these proceedings and for service of medical reports, as well by reason of UCPR rr 7.17 and 7.18, the hearing of the assessment of damages is vacated with costs reserved.
2. Stand these proceedings over to 27 October 2023 before the List Judge to enable the plaintiff to bring such application for orders as may be recommended by her legal representatives.
3. A copy of this decision will be provided to the permanent List Judges in this Court and to the defendant.
4. The Court books to remain with the file.
[2]
Amendments
08 September 2023 - Typographical error amended in paragraphs 3, 8 and 11
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 08 September 2023