M v Mental Health Review Tribunal and Others

CONTEXT : THE PROCEEDINGS TO DATE

1. For reasons published as M v Mental Health Review Tribunal and Others [2015] NSWSC 1876 on 15 December 2015, an appeal by the plaintiff (under section 163 of the Mental Health Act 2007 NSW), from a community treatment order (made under section 51 of the Act) was dismissed.
2. That appeal was determined as a separate question (pursuant to an order made under UCPR, rule 28.2) in proceedings commenced by a summons in which the plaintiff also claimed compensation against the parties he had named as defendants in the summons.
3. As outlined in the reasons for judgment published on 15 December 2015: 1. Those parties are the Mental Health Review Tribunal (the first defendant); Sydney Local Health District (the second defendant); Jansen-Cilag Pty Ltd (the third defendant); and Johnson & Johnson Pty Ltd (the fourth defendant). 2. Despite medical diagnoses over several years that he suffers from a schizo-affective disorder (and, it might now be added, a judgment of the Court accepting such a diagnosis), the plaintiff contends that he does not suffer from "mental illness", save from the side-effects of anti-psychotic medication (currently Risperidone Consta) administered to him, by depot injection, against his will. 3. The plaintiff contends that the side-effects of that medication (idiosyncratically, described by him as "Risperiditis" or, more recently, by an adaptation of that name that includes his own surname) have involved symptoms of "guilt, anxiety, despair and hopelessness", which he has described to medical authorities as "guilt attacks". 4. The plaintiff contends that he is entitled to compensation of one sort or another because, he says: 1. he has suffered needlessly from "Risperiditis", when he should have been left to treat himself with alternative therapies not involving the administration of medication; 2. he has supplied to the second defendant (the entity responsible for implementation of community treatment orders affecting him) materials relating to alternative therapies, for which he should be paid; and 3. he has a "civil bet" with the defendants in which he has wagered (on more than one occasion) that he is not mentally ill and, he says, they should be held to have lost that bet several times over or if, consequentially upon the judgment of 15 December 2015, they must be taken to have won the bet, they should be called upon to enforce or abandon their entitlement. 1. The plaintiff contends that the first and second defendants are liable to pay him compensation because they bear responsibility for the compulsory administration of anti-psychotic medication to him. 2. He also contends that the third and fourth defendants, as manufacturers or suppliers of anti-psychotic medication administered to him, are liable to pay him compensation (on a cause of action he has identified by a passing reference, in recent submissions, to Donoghue v Stevenson [1932] 1 AC 562).
4. The plaintiff's immediate response to dismissal of his appeal on 15 December 2015 was to press the claims for compensation made in the balance of his summons. He was undeterred in his pursuit of those claims by a judgment that pronounced him mentally ill. His ongoing qualified denial of mental illness (that is, a denial of mental illness save for the side effects of anti-psychotic medication) serves as both his excuse for a finding of mental illness and his justification for pursuit of compensation claims. It has about it the flavour of Joseph Heller's "Catch 22".
5. Nevertheless, upon dismissal of the appeal, the proceedings were adjourned to enable the parties to consider their respective positions. The third and fourth defendants had not participated in the hearing of the appeal and it was, accordingly, necessary for them to be informed of its disposition.
6. Directions hearings were held, before me, on each of 10 February and 4 March 2016 as a preliminary to a further hearing of interlocutory process, before me, on 29 April 2016.
7. During the period intervening between 15 December 2015 and 29 April 2016: 1. In anticipation of the community treatment order the subject of the appeal expiring according to its terms, the first defendant (on 24 February 2016) made a fresh community treatment order, expressed to expire no later than 23 August 2016, from which the plaintiff has not appealed. 2. Each of the second defendant (on the one hand) and the third and fourth defendants (on the other) confirmed that, if the plaintiff were to persist in the unresolved claims for relief made in the summons, they would object to his doing so otherwise than through a tutor (appointed pursuant to UCPR Part 7 Division 4 (rules 7.13-7.18) or upon an exercise of the Court's protective jurisdiction) and, subject to a determination of that objection, they would move the Court (invoking UCPR rules 13.4 and 14.28) for an order that the plaintiff's summons be struck out or an order that his proceedings otherwise be disposed of summarily. 3. Without conceding that he needs a tutor, the plaintiff claims to have sought in vain to locate a person suitable for appointment as a tutor. One potential tutor, who on 29 April 2016, acted as a "McKenzie friend" to the plaintiff (an expression that emerged from McKenzie v McKenzie [1971] P 33 at 37G-38C and 40H-41D), declined to consent to his appointment as a tutor after made aware that the office of a tutor would: (i) require him to take personal responsibility for the conduct of the proceedings, not merely allow him to acquiesce in the plaintiff's conduct of them; and (ii) expose him to the possibility of a personal costs order. He was, in any event, not a suitable person for appointment as a tutor because, as he made clear in oral submissions made to the Court on 29 April 2016, his strong personal view was that the plaintiff is, not only not in need of a tutor, but is a person of considerable genius. That view, sincerely held, would have blinded him from any critical, objective assessment of the plaintiff's prospects for success, and their exposure to risk, in the principal proceedings. 4. The plaintiff confirmed his intention to press the claims for relief made in his summons, beyond the appeal.
8. The process before the Court on 29 April 2016 comprised: 1. a notice of motion filed by the second defendant on 1 February 2016 which: (i) in terms, sought summary relief by reference to UCPR rules 13.4 and 14.28; (ii) by a claim for further and other relief, reflecting the provisions of the Civil Procedure Act 2005 NSW, section 90 and UCPR rule 36.1, sought, as foreshadowed in correspondence with the plaintiff (Exhibits 2D1 and 2D2), to maintain an objection to the plaintiff conducting the proceedings without a tutor; and (iii) disclaimed any application for costs of the proceedings. 2. an amended notice of motion filed by the third and fourth defendants on 4 March 2016 sought: (i) summary relief by reference to UCPR rules 13.4 and 14.28; (ii) a declaration that the plaintiff is incapable of managing his affairs, coupled with consequential relief under the NSW Trustee and Guardian Act 2009, sections 40-41 and UCPR Part 7 Division 4, for the appointment of a tutor as a precondition of the proceedings being further entertained; and (iii) costs.
9. In pressing their motion, the third and fourth defendants drew to the Court's attention four judgments relating to proceedings involving the plaintiff. In reverse date order of their publication, those judgments were published on 2 July 2015, by Adamson J ([2015] NSWSC 876); on 25 September 2013, by Local Court Magistrate Schurr ([2013] NSWRLC 13); on 17 February 2012, by Schmidt J ([2012] NSWSC 85); and on 20 June 2001, by Grove J ([2001] NSWSC 524).
10. The judgment of Adamson J describes a modus operandi on the part of the plaintiff very close to that which he has adopted in the current proceedings: with imprecise claims for relief, supported by the service of documents alleged to be "notices to admit", followed up by a claim of entitlement to a judgment on admissions. No greater success attended that methodology before Adamson J than attended the plaintiff's unsuccessful appeal in the current proceedings.
11. The judgment of Schmidt J deals with a subject matter (a spent claim to personal injury compensation, long ago settled, going back to events that occurred in 1966) revisited by the plaintiff, without any materiality beyond biographical detail, in the current proceedings.
12. The chain of judgments brought to attention by the third and fourth defendants provides one limb of their contention that the plaintiff is a "vexatious litigant".
13. Another limb focuses on steps taken by the plaintiff on 24 September 2015, under the Personal Property Securities Act 2009 Cth, to register alleged security interests against the third and fourth defendants, and various individuals associated with the first and second defendants, claiming a lien over property to secure entitlements allegedly arising out of the plaintiff's claimed "civil bet".
14. A third limb, that unites the first two, focuses on the nature of the current proceedings and the plaintiff's conduct of them, including his casual, continued pursuit of the summons notwithstanding dismissal of the appeal. I leave to one side a passing suggestion, in written submissions of the plaintiff filed on 15 April 2016, that, by my dismissal of the appeal, the Court itself may have become a party to the "civil bet".
15. On the hearing of the defendants' motions on 29 April 2016: 1. All parties agreed to an order that the motions be heard together, with evidence of the hearing of one motion evidence on the hearing of the other, so far as relevant. 2. All parties agreed that the evidence placed before the Court on the hearing of the appeal, on 7 December 2015, be received into evidence on the hearing of the current motions. 3. All parties agreed that the correspondence earlier marked as Exhibits 2D1 and 2D2, by which the Crown Solicitor's Office objected to the principal proceedings being conducted by the plaintiff without a tutor, be received in evidence on the hearing of the motions. 4. All parties agreed to admission into evidence, on the hearing of the motions, of a bundle of documents (Exhibit 2D3) prepared by the Crown Solicitor's Office, including emails addressed by the plaintiff to the Crown Solicitor's Office; attachments to those emails, including the plaintiff's written submissions; and an affidavit deposing to the plaintiff's registration of alleged security interests claimed by the plaintiff on the personal property securities register. 5. An affidavit sworn (on 4 December 2015) by a solicitor in the employ of the solicitors for the third and fourth defendants was read without objection. 6. I raised for consideration the question whether (if necessary, the Court moving on its own motion) protected estate management orders, operative generally, not merely in aid of appointment of a tutor for the plaintiff in the present proceedings, should be made, in relation to the plaintiff, under section 41 of the NSW Trustee and Guardian Act, following a procedural pattern discussed in A v A [2015] NSWSC 1778.
16. On the hearing of the motions, the second defendant submitted that, if the plaintiff were to be found incapable of managing his affairs (whether for the purpose only of UCPR Part 7 Division 4 or generally) the Court could not, or at least should not, make any summary disposal orders (under UCPR rule 13.4, UCPR rule 14.28 or otherwise) in the absence of a tutor.
17. I do not accept, as a matter of principle, that the Court cannot dismiss, stay or strike out proceedings that are an abuse of the processes of the Court merely because a party that seeks to maintain them is a person under a legal incapacity. The jurisdiction of the Court to deal with abuses of its processes is protective of its processes: Williams v Spautz (1992) 174 CLR 509 at 518-519 and 526-531; Walton v Gardiner (1993) 177 CLR 378 at 392-398. The Court is not constrained to surrender control of its processes to a person incapable of managing his or her own affairs.
18. That said, if it can do so in a manner consistent with protection of its own processes, the Court might reasonably defer making an order that proceedings be dismissed, stayed or struck out as an abuse of process in order to allow an incapable person's welfare and interests (paramount considerations on an exercise of protective jurisdiction, as confirmed by section 39 of the NSW Trustee and Guardian Act, and the inherent jurisdiction of the Court described in Marion's case (1992) 175 CLR 218 at 258-259) to be consulted in an orderly manner.

BELATED DISCOVERY OF THE PLAINTIFF'S STATUS AS A "PROTECTED PERSON"

1. With judgment on the defendants' motions reserved, and the task of assessing the evidence on the motions well advanced, the Court was, late in the day before last, requested by the office of the Crown Solicitor (on the record as solicitor for the first and second defendants) to relist the proceedings (on notice to the plaintiff, the third and fourth defendants and the NSW Trustee) to enable the Court's attention to be drawn to the fact, only recently discovered by the Crown Solicitor's Office, that the plaintiff's estate is already (and has been since 18 May 2012) under protected estate management: Exhibit 2D4.
2. On 18 May 2012 the Guardianship Tribunal (the predecessor of the Guardianship Division of the Civil and Administrative Tribunal of NSW ("NCAT")) made financial management orders, under the Guardianship Act 2007 NSW, committing to the NSW Trustee management of the whole of the plaintiff's estate, save for his pension and unidentified term deposits (bank accounts): Exhibit 2D5 (orders) and Exhibit 2D6 (Reasons for Decision). Those orders are the equivalent of partial management orders that might be made by the Court under the NSW Trustee and Guardian Act 2009, sections 40-41.

PROCEDURAL CONSEQUENCES OF THE PLAINTIFF'S STATUS AS A "PROTECTED PERSON"

1. The effect of the Tribunal's orders was to subject to protected estate management any cause of action the plaintiff may have against the defendants, and to suspend his power to conduct proceedings to enforce such, if any, rights he may have on such a cause of action: NSW Trustee and Guardian Act, section 71(1); David by her tutor the Protective Commissioner v David (1993) 30 NSWLR 417.
2. The procedural consequence of these facts is that the plaintiff is, and has been at all times throughout these proceedings, a "protected person" within the meaning of section 38 of the NSW Trustee and Guardian Act and (within the meaning of section 3(1) of the Civil Procedure Act 2005 NSW) a "person under legal incapacity", with the consequence (under UCPR rule 7.14) that, unless requirements of rules of court are dispensed with, he cannot commence or carry on proceedings except by a tutor represented by a solicitor. Prima facie, under UCPR rules 7.15(3) and (4), the NSW Trustee, as manager of the plaintiff's protected estate, is the person appropriate to serve as his tutor.
3. In light of this, the appropriate course (consistently with that taken in A v A [2015] NSWSC 1778) was, yesterday, to make orders to the effect that: (a) subject to further order, the plaintiff's summons be stayed for a reasonable time to permit the NSW Trustee to consider whether it should consent to its appointment as the plaintiff's tutor and/or apply for orders affecting the proceedings or ongoing management of the plaintiff's protected estate; and (b) the defendants' motions be stayed for the same period to enable the parties, jointly and severally, to consider whether any (and, if so, what) orders might be necessary relating to them.

OBSERVATIONS ABOUT THE NATURE OF THE CASE

1. Because the plaintiff's estate is under protected estate management on an ongoing basis, it is not necessary, at this stage of the proceedings, to make a fresh finding as to his (in)capacity for self-management. However, given the task that now confronts the NSW Trustee, in coming to terms with proceedings of which it was until recently unaware, some observations are both necessary and appropriate.
2. First, the evidence adduced before the Court on 29 April 2016, and the plaintiff's conduct of the proceedings on that date, are probative of an ongoing incapacity for self-management, not limited to management of the principal proceedings.
3. Secondly, the form of both the plaintiff's summons, and his written submissions filed 15 April 2016, manifests irrational, disordered thought processes and modes of expression (coupled with a delusional belief about the existence, and rationality, of a "civil bet") indicative of mental illness and an ongoing want of capacity for self-management.
4. Thirdly, the plaintiff's failure, unequivocally, to disclose to the Court, or to parties active in the proceedings, his status as a "protected person" reinforces a perception that he is incapable of managing his affairs and, in equal measure, a perception that he is prone to engage in vexatious proceedings.
5. Confronted with the Guardianship Tribunal's orders yesterday, he claimed to have earlier alluded to his status as a "protected person" in the course of the Court's hearing of these proceedings. If he did allude to that status, nobody involved in the proceedings picked up the allusion. Beyond doubt, he permitted the Court, and all parties active in the proceedings, to proceed upon a common assumption that he Is not currently the subject of protected estate management orders.
6. At the very least, he did not correct a mistaken belief (as to the absence of such orders) that a rational mind, in command of itself, would have corrected in the ordinary course of proceedings in which related topics were under active discussion. The mistake was bound to have been exposed, sooner or later. No person, thinking rationally, could reasonably have imagined that the plaintiff's interests would be served by concealment of his status.
7. Although moderation of language is required in attributing motives to a party who, through mental illness, is incapable of managing his or her affairs, the manner in which the plaintiff has commenced and conducted these proceedings invites, provisionally, a finding that he deliberately concealed the existence of subsisting financial management orders from the Court and the defendants, and the pendency of the proceedings from the NSW Trustee.
8. In explanation of his conduct of the proceedings, and his hope for them to be continued, the plaintiff informed the Court yesterday that he had instituted the proceedings in his own name because the NSW Trustee had, at an earlier time, declined to institute them.
9. Fourthly, delays in disclosure of the plaintiff's status as a protected person to the Court, and to parties affected by his litigious bent, might reasonably be thought to raise questions about: (a) whether any (and, if so, what) administrative arrangements need to be reviewed for the purpose of ensuring that different arms of government responsible for administering the State's protective functions are kept informed, in a timely manner, of steps taken in performance of those functions vis a vis litigants in person; (b) whether there needs to be some means by which parties to proceedings brought by a litigant in person can take steps to ascertain whether their adversary is a "protected person"; and (c) whether the Court's commitment to open justice needs (notwithstanding statutory imperatives for confidentiality such as those found in the Mental Health Act 2007 NSW, section 162 and the Guardianship Act 1987, section 101) to be qualified, in operation, so as to ensure sufficient transparency to avoid, or deal with, abuses of the process of the Court.
10. Fifthly, in management of: (a) the rights and obligations of litigants in person; (b) protection of the rights of persons in need of protection; (c) protection of the processes of the Court against abuse; and (d) protection of the public via an open administration of justice, consideration may need to be given to whether (administratively or otherwise) a correct balance has been struck between competing imperatives when, first, proceedings involving a protected person are routinely kept confidential and, secondly, opportunities for such a person to commence, and conduct, proceedings as a litigant in person abound.
11. Had judges and parties involved in earlier proceedings involving the plaintiff (in 2012-2013) been appraised of the existence of subsisting financial management orders, those proceedings could have been dealt with more summarily than they were.
12. The Guardianship Tribunal's financial management orders were expressly made because of a perceived inability on the part of the plaintiff to manage his litigation with Strathfield Council, coupled with an overt preoccupation with involvement in litigation, expressly noticed by the Tribunal. The plaintiff's preoccupation with, and inability to manage, court proceedings is evidently long-standing.
13. Sixthly, in management of protected estates, continuing consideration needs to be given to the prudence of partial protected estate management orders (as opposed to management orders affecting the whole of the estate of a protected person, coupled with a direction or recommendation that a manager allow a protected person, under supervision, to manage particular property): Re Application for Partial Management Orders [2014] NSWSC 1468.
14. A possible consequence of the Guardianship Tribunal's decision to exclude property of the plaintiff from the operation of financial management orders made against him is that, subject to the possibility that further protective management orders might be made in aid of those financial management orders, the plaintiff's estate (his pension and bank accounts) might be exposed to greater risk of providing a fund for satisfaction of adversarial costs orders than would have been the case had a different form of protected estate management order been made. On balance, I am presently inclined to regard this as a comparatively minor risk; but a risk it may well be, and an unnecessary risk it is.
15. Seventhly, if administrative protocols are to be developed to assist in management of the affairs of legally incapacitated persons and litigation in which they may become engaged as litigants in person, then: (a) the scope of such protocols should take into account the width of the definition of the expression "person under legal incapacity" in CPA 3(1) and the range of agencies making decisions capable of bringing a person within the definition; and (b) because the NSW Trustee monitors, or manages, all estates subject to management under the NSW Trustee and Guardian Act (whether made by the Court, the Guardianship Division of NCAT or the Mental Health Review Tribunal) , the NSW Trustee may provide a central point of reference for a system of monitoring proceedings commenced, or carried on, by persons without legal representation who may fall within the definition of "person under legal incapacity" found in CPA section 3(1), extended by UCPR rule 7.13.
16. Ready access (to information about subsisting protective orders) by the Court, if not also parties to proceedings in which a litigant in person is engaged, could be of significant assistance in the conduct of proceedings in the Court. Because of the confidentiality regime governing proceedings in the Guardianship Division of NCAT, access to orders made by NCAT, in management of the person or property of a person incapable of managing his or her own affairs, is (understandably) not freely available, to all and sundry, without constraints. Nevertheless, where the rights of others are affected (as they may well be, particularly, in the case of protected estate management of property) there is a public interest case for general disclosure of otherwise confidential, protective orders.
17. These several observations are not intended to bind the NSW Trustee, or any other interested person, to a particular course of action. They are intended only to place on record facts, or questions, that might call for ongoing consideration in management of the affairs of persons incapable of managing their own affairs, not a few of whom are drawn to unsupervised involvement in court proceedings as a litigant in person.

CONCLUSION

1. Directions having been given yesterday to facilitate an assessment of the proceedings by the NSW Trustee and parties to the proceedings, and a review of arrangements for ongoing management of the plaintiff's estate by the NSW Trustee as his financial manager, the proceedings return to court, for directions or further consideration, as the nature of the case may require, on 21 July 2016. In the meantime, all proceedings on the plaintiff's summons have been stayed, subject to further order.

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: 06 May 2016