Two brothers, the plaintiff, Robert Klewer, and the defendant, Andrew Klewer, are in dispute concerning the beneficial ownership of an 18-acre property in Moonee Beach on the North Coast of New South Wales (the Moonee Beach property). The brothers are registered proprietors as tenants-in-common of the Moonee Beach property. Robert Klewer says that this was an arrangement of convenience to enable him to borrow money to purchase the property, which he was always intended to own beneficially. Andrew Klewer claims he owns a half interest in the property both legally and beneficially.
As the two brothers have the same surname the Court will adopt the same practice that the parties did during submissions and refer to them each by their first names. The Court does so without intending any disrespect to either party.
At a directions hearing this morning, an issue was raised as to whether a tutor should be appointed pursuant to Uniform Civil Procedure Rules 2005, r 7.18 ("UCPR") to conduct the proceedings on Robert's behalf. Robert's lawyers are concerned he may need a tutor. Robert says he does not need a tutor. The Court has reached the view that he does not need a tutor. This judgment briefly sets out the reasons for the Court reaching that conclusion.
The plaintiff is represented today by Ms K Young of counsel instructed by Hunt & Hunt Lawyers and Andrew is represented by Mr S Philips of counsel instructed by Turnbull Hill Lawyers. Robert has also been assisted in the past in managing this litigation by his mother Mrs Lucy Klewer in the role of next friend. The proceedings are listed for hearing for three days before me commencing on Monday, 30 September 2024.
At a directions hearing before Hmelnitsky J on 24 June 2024 his Honour considered the available evidence as to the financial circumstances of these parties and referred Robert to the Court's pro bono assistance scheme under UCPR, r 7.36. As a result of that referral Hunt & Hunt and Ms Young volunteered to assist Robert in the highest traditions of the legal profession and became involved in the proceedings.
The matter has become complicated since then. The evidence is now clearer that Robert's assets are considerably greater than those that would ordinarily entitle him to pro bono assistance under UCPR, r 7.36. That scheme operates for the benefit of people who do not have the financial resources to retain lawyers and who would be disadvantaged without legal representation. It is now clear on the available evidence that Robert has a beneficial interest in no less than 50% of the Moonee Beach property, a valuable piece of real estate, and another residential property and therefore has sufficient property to pledge to secure the services of legal practitioners. A person with Robert's resources should not ordinarily be the recipient of pro bono assistance under UCPR, r 7.36. If this highly beneficial pro bono scheme is used by people who do not need it, then it is less likely to be made available in the future to those who do need it.
Hunt & Hunt and Ms Young have now raised a question about whether they should continue to take instructions in the proceedings from Robert, without the intervention of a tutor. This issue was properly raised at the directions hearing this morning. The Court decided to deal with the issue immediately so that there would be no delay in the preparation of the proceedings for trial. The proceedings need considerable lawyer attention and preparation in the near term to ensure they are ready for hearing. As I have pointed out to the plaintiff, the pleadings and the affidavit evidence has been loosely drafted and much of the material that is advanced on Robert's behalf may be inadmissible and needs rapidly to be put in proper form if the hearing is to proceed smoothly to the best advantage of both parties.
The issue concerning the possible appointment of a tutor arises from Robert's medical history. When he was young he was diagnosed with a brain tumour which needed to be surgically removed to save his life. He was able to access expert surgery and he was operated upon successfully to remove the tumour. The success of that surgery is evident in part from the fact that he has survived to his present age of 36 years, has passed the modified Higher School Certificate and has undertaken several forms of employment since leaving school.
But the surgery he underwent occasioned some alteration to his brain function, and his cognitive and memory capacity and has made him susceptible to epileptic events. To avoid the occurrence of these events, he takes prophylactic medication which has mostly been successful. He has been throughout his adult life, generously and amply supported by his mother, Mrs Lucy Klewer.
Hunt & Hunt are now concerned that because Robert may need a tutor the firm has been reluctant to sign a costs agreement with him without a tutor first being appointed for him. That is proving an obstacle to making any further progress in the proceedings. At this directions hearing, the Court has decided to address that issue by speaking directly at some length to Robert about the case and about the issues raised within it and about the legal process then he has experienced. The Court has done this to enable it to decide, if it can, whether a tutor should be appointed. If Robert does not need the appointment of a tutor case preparation can proceed without further delay.
The relevant law may be simply stated, "A person under legal incapacity may not commence or carry on proceedings except by a tutor", UCPR r 7.14. "A person under legal incapacity" includes a person who is either incapable of or impeded in the management of his or her affairs by reason of a disability, but the question of whether a person is under a legal incapacity and requires a tutor depends on whether he or she is capable of understanding with the assistance of a proper explanation from legal advisers and experts, as the case may require, the issues on which consent or decision are likely to be necessary in the course of the proceedings: Masterman-Lister v Jewell [2003] 1 WLR 1511 ("Masterman-Lister").
The test of whether a person is under legal incapacity is task specific and depends on whether the person can understand and evaluate the particular task in question at the particular time; Guthrie v Spence (2009) 78 NSWLR 225, [2009] NSWCA 369 at 174 and 175. There is no universal test as to legal incapacity. It must be assessed by reference to the individual and the task in question; IA v TA [2016] NSWCA 179. It is important also to remember that a person of adult age is presumed to have the mental capacity to manage his property and affairs until the contrary is proved and the burden of proving the contrary rests upon whoever asserts the incapacity, and as a matter of practice, the Court should investigate the question of capacity whenever there is any reason to suspect its absence even if the issues did not appear to be contentious: Masterman-Lister.
The Court is told that Hunt & Hunt were sufficiently concerned about of Robert's capacity that the firm has requested Robert to have a medical assessment before a retainer could be signed with that firm and for counsel to be engaged. Robert has told the Court today that he does not wish to undergo a medical assessment. Before the Court would consider compelling such a course, the Court has decided it should acquaint itself with Robert by conversing with him about the case, about the litigation process and about the decision that he might have to take in the future about settling the proceedings or conducting them.
Medical evidence is often adduced on questions of legal capacity. In many cases, it will be the appropriate course. But in accordance with the dictates of efficiency and fairness embodied in Civil Procedure Act 2005, s 56 the Court also must decide what is the most effective way of dealing with the question of appointing a tutor. That may not always involve engaging medical practitioners to give expert evidence on the question of legal capacity. The Court can decide for itself whether that course is warranted in each case. That is what the Court decided to do here.
The Court has had this conversation with Robert, who appeared in Court today by AVL with his mother, with the consent of Ms Young and Hunt & Hunt. And based on that discussion, the Court is satisfied that Robert is not a person under legal incapacity who requires a tutor. There are three main reasons for this.
First, the Court asked Robert about aspects of the legal process in which he is now involved. He gave an insightful and accurate description in lay terms of the affidavits that he had signed and their general significance in the proceedings.
Secondly, Robert was able to give an account of the issues in the case showing insight into some of their subtleties and the various places where his legal position differed from that of his brother, Andrew. And he was able to give an account of the development of events that had led to those issues.
Thirdly, when asked about making decisions about the conduct of a trial or considering settlement of the proceedings, at least in general terms, Robert indicated a capacity to understand the advantages of settlement as distinct from the costs of a hearing and to appreciate the short-term and long-term trade-offs that may be required in the decision-making involved in either going ahead with or settling proceedings.
These three matters indicated to the Court that Robert has a healthy degree of insight into and appreciation of the issues he will encounter and the decision-making tasks ahead for him in this litigation.
The Court is mindful that it comes to this view after experienced lawyers have said they wish to have him medically examined. The course that the Court has now taken is not criticism of the lawyers who raised this issue. But the exercise has given the Court confidence Robert has sufficient obvious legal capacity to proceed without a tutor and that he does not need to be medically examined with a view to the possible appointment of a tutor.
The Court is also mindful that even without a tutor, Robert has the assistance of his mother who has a strong appreciation of the issues in the case. But she is also potentially a witness. There may well be times where, in giving instructions, she will need to do so separately from him but notwithstanding that, she will be a continuing general support to him in giving instructions.
The Court will seek to case manage these proceedings to prepare the matter for hearing and will consider referring the matter to mediation before hearing. The Court will also grant liberty to apply in relation to the appointment of a tutor for Robert should the present situation vary in the future.
For these reasons the Court makes the following notation and orders:
1. Court declines to appoint a tutor for the plaintiff, Robert Klewer, to conduct these proceedings; and
2. Grant liberty to apply in relation to the possible future appointment of a tutor for the plaintiff should his circumstances change in the future.
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Decision last updated: 16 October 2024