M -v- P [No 3] [2024] WASC 123 (12 April 2024)

1. The plaintiff foreshadowed the present application ahead of the directions hearing on 22 March 2024, and directions were then made to facilitate a prompt hearing on 11 April 2024.
2. Order 70 RSC is a rule which concerns the Court's parens patriae jurisdiction, which derives from the inherent obligation of the Crown to care for those who are unable to care for themselves. This jurisdiction is expressly conferred by s 16(1)(d) and s 23 of the Supreme Court Act 1935 (WA).
3. Upon the requested declaration being made, the defendant seeks an order that the Public Trustee be appointed to act as the plaintiff's next friend in these proceedings. If the requested declaration were to be made, the plaintiff would be unable to take any further steps in this action other than through his appointed next friend, who must be legally represented.[3]
4. By way of an alternative to the declaration, the defendant has presented the Court with a pathway by which assistance in determining the question of capacity might be obtained from the Public Advocate. The office of the Public Advocate is a statutory office established under pt 8 of the Guardianship and Administration Act 1990 (WA) (GAA).
5. Specifically, the defendant proposes an alternative set of orders, which borrow from the orders structured by Pullin JA in Farrell v Allregal Enterprises Pty Ltd,[4] by which the Court would request that the Public Advocate investigate and report to the Court as to whether the plaintiff has the ability to make reasonable judgments about the conduct of these proceedings, among other things.
6. The plaintiff opposes the orders sought.

1. The principles applicable to applications under O 70 RSC were very recently summarised by Seaward J in Snook v Magistrate Trevor Darge [No 2],[5] drawing on the detailed decision of Murphy JA in A v City of Swan [No 5],[6] amongst other authorities. I respectfully adopt that summary, without repeating it verbatim here, but I will highlight later in these reasons some pertinent aspects.

1. In support of the application, I have received two sets of submissions from the defendant dated 21 March 2024 and 4 April 2024, and two affidavits sworn by a solicitor representing the defendant, Charmaine Su Ting Kwok on 21 March 2024 and 2 April 2024. These affidavits attach various documents filed by the plaintiff in these proceedings, various communications to the Court sent by the plaintiff, the transcript of the hearings on 30 November 2023 and 22 March 2024, and various communications which have passed between the parties.
2. The first affidavit of Ms Kwok contains some material on information and belief from her client, to which the plaintiff took strong exception. Ultimately, this paragraph was not pressed by counsel for the defendant and I will disregard it for the purposes of this application.[7]
3. It is important to note that the plaintiff has not previously been the subject of an order for the appointment of a guardian or administrator, whether under the GAA or otherwise. Nor is there any evidence that the plaintiff has previously been involuntary detained on mental health grounds or by reason of any incapacity, or diagnosed with any psychiatric or mental illness.
4. Further, the defendant has not adduced any medical evidence in support of its application but rather invites the Court to draw inferences as to the plaintiff's capacity from the available material. I accept that this is a legitimate approach for the Court to take, although the absence of direct medical evidence renders an applicant's task of discharging its burden of proof more onerous. It is to be remembered that the presumption remains that a person of full age is capable of handling their own affairs. The absence of medical evidence also makes the task of the Court more challenging than it might otherwise be. This tends to highlight the utility of the alternative pathway outlined by counsel for the defendant, to which I will return in due course.
5. In opposition, the plaintiff has filed several sets of submissions[8] and a lengthy affidavit sworn on 6 April 2024.[9] I heard oral submissions from the plaintiff at the hearing on 11 April 2024 in which, in summary, the plaintiff highlighted the absence of supporting medical evidence, repeated a number of serious allegations of criminal conduct on the part of the defendant, his solicitors and others, explained that he wished for the action to move swiftly to a final determination, and sought orders for immediate dismissal of the defendant's application.
6. The plaintiff often refers, in his written material and orally, to those who oppose him in the numerous litigation fronts which have been opened as being involved in a 'criminal network'.
7. Without being exhaustive, I refer to the following matters which are found in the plaintiff's submissions and affidavit material:

(a) the plaintiff describes the present application as a tactic and 'another round of desperate moves by a criminal organization contesting me across various jurisdictions, [which] warrant a proportionate response from [him];[10]

(b) the plaintiff says that he believes the reason behind the present application is that 'the defendants and the defendants' network, ... has been experiencing significant distress recently' and 'have seemingly exerted pressure' on the lawyers representing the defendant to 'hastily' submit the application 'in a desperate attempt to buy more time';[11]

(c) the plaintiff refers to the approach of the defendant's lawyers in raising the present matter at the hearing on 22 March 2024 as suggesting 'an unrealistic expectation' on their part and being 'under the illusion that the court system could serve as a stage for their unfounded aspirations'. The plaintiff describes this as 'reminiscent of cinematic heroics found in Hollywood or Bollywood movies!';[12]

(d) the plaintiff refers to his 'vast experience and deep familiarity with the dynamics of the medical industry' and his ability to 'identify not only the contraventions and breaches by [his] employers and senior colleagues against well-established Australian administrative rules and regulations' but also to confront 'the breaches by the regulator ... itself from day one', and that this 'proficiency in industry matters posed a substantial challenge to the Medical Board, as they found it difficult to deal with someone as skilled and knowledgeable in this area as [the plaintiff];[13]

(e) the plaintiff refers to one of the professional bodies as operating with 'corrupt autonomy' and employs terms such 'corrupt medical professionals' and 'profoundly corrupt officials', and describes a 'battle against certain corrupt elements within the medical board leading to the suspension of [his] registration';[14]

(f) the plaintiff insists that there are 'darker truths' plaguing the primary healthcare sector which 'remain shrouded and out of public scrutiny';[15]

(g) the plaintiff describes 'a significant legal victory' in proceedings in the State Administrative Tribunal at which false accusations against him of sexual misconduct were withdrawn by the Medical Board, and says that his 'mental health had somewhat improved slightly' thereafter;[16]

(h) the plaintiff describes a recent period in his life which 'has unfolded with cinematic twists, supported by emerging evidence across various platforms, illustrating the extent of criminal actions and corruption [he is] confronting';[17]

(i) the plaintiff refers to his personal life, including his marriage breakdown as a 'complex scenario [which] underscores [his] ex‑wife's potential involvement in some new class of grave offences, exacerbated by her awareness of [his] known longstanding opposition to the Iranian regime';[18]

(j) the plaintiff has commented that the State Administrative Tribunal 'is recognized as the optimal forum for initiating and reviewing applications pertaining to guardianship' and yet 'it remains perplexing as to why the defendant's representative is endeavouring to submit the application in a manner that deviates from the norm'. The plaintiff describes this situation, 'together with numerous other observations of various irregularities executed by [his] legal adversaries across different jurisdictions' as having prompted 'an amusing deduction', namely that: 'it seems that as my knowledge and expertise in the legal field expand, the legal cognitive capabilities of the opposing lawyers appear to be in decline!';[19]

(k) the plaintiff has described the defendant's solicitors intentions with the present application as 'their fancy and sweet dreams' and that they expect the Public Advocate to be biased in their favour. The full passage is as follows:[20]

But their fancy and sweet dreams does not yet stop, as it is they perceived legitimate right! that after having Case Manager's initial ruling in favour of their Objective 1, and while waiting for the action of the public advocate, who will be definitely expected by them to be a very good boy!, and send back a favourable outcome to the Court, and until His Honour could make a final determination, and declaring the plaintiff incapacitated from pursuing anything in anywhere (Objective 2), they are also ordering their desired cream on top of everything (Proposed Order 4 in SSL's Minutes); as although it is evidently the case manager who has recently looked increasingly tired and exhausted by the rapidly growing demands for His Honour's services in the court, the defendant and their celebrity lawyers are still entitled to even burden the case manager further by asking for "an indefinite stay order" of the current proceedings to allow them to enjoy their rightful Relax & Chillax entitlements! This respite is particularly crucial & necessary to alleviate the distress and stress-induced discomfort, notably in their legs among the other specific parts of their precious bodies!, as the result of an unprecedented recent increased level of successful legal activities of this crazy incapacitated plaintiff in various jurisdictions, which is going to be very bad for their skin!

(l) the plaintiff criticises the lawyers for the defendant and the absence of medical evidence in support of this application in the following manner:[21]

However, it is indeed an enormous sense of relief that the serious oversight by 2 Tribunal Presidents and 4 Panel Members in neglecting to promptly identify, and label this mentally ill plaintiff, has been compensated by the emerging medical science luminary, Professor Dr Nick Stagg MD PhD etc.! His remarkable achievements, including acquiring an unparalleled breadth of knowledge in medical science virtually overnight, have led to his gracious intervention! Allocating his precious time to the matter, Dr Stagg has kindly diagnosed the plaintiff with a range of conditions including paranoia, severe melancholic depression, a variety of personality disorders, psychosis, and notably, the plaintiff's most incapacitating and terminal illness, namely his Severe Courtroom Dependency Syndrome (SCRDS)!

The significant impacts of Dr Stagg's invaluable contributions are becoming more evident when we realise that not only he has safeguarded the Supreme Court's reputation by addressing the oversights of Their Honours Pritchard J, Tottle J, and Lundberg J in failing to recognised the plaintiff's serious mental health issues and incapacity, but also preserved the reputation of the Federal Court of Australia by rectifying similar guilts by Their Honours Jackson J & Colvin J. As such, as a distinguished national figure, Dr Stagg should not only succeed Professor Hannah McGlade as one of Australia's representatives at the United Nations, but also must be nominated for the Noble Prize in medicine, and to be sent to Sweden to attend the award ceremony, where he can enjoy further moments of Chillaxation!

(m) finally, when addressing the allegation as to his capacity, the plaintiff states as follows:[22]

Contrary to allegations of legal incapacitation, evidence, including my submissions to the Federal Court, indicates an exceptionally high level of competence, which I refer to as my hyper-capacity! This competence has been a significant point of contention for the opposing party, who may view it as a threat. The notion of my incapacity, a result sought by those intent on diminishing my credibility, is categorically dismissed. To support this claim, I plan to include (DSASC-194) a specific submission to the Federal Court of Australia (FCA) that satisfied the stringent standards set by the Honourable Justice Jackson. For the first time in the history of employment litigation involving a medical doctor in Australia, I was able to incorporate provisions of the WHS Act concerning the protection of patient health and safety as a fundamental aspect of my case. This accomplishment serves as further evidence of my hyper-capacity and underscores the anxiety it causes among those whom I label a criminal network opposing me

1. It is abundantly clear the plaintiff believes in the correctness and righteousness of his case, so much so that he has foreshadowed seeking summary judgment. Given the nature of the pleaded allegations in the action, which are fact dependent, the plaintiff was alerted, at the hearing on 11 April 2024, to the fact that summary judgment would be close to an impossibility. Nonetheless, it is apparent that the plaintiff believes he will ultimately be vindicated at trial.
2. The defendant's application raises serious issues for the Court's determination. I accept that, as a consequence of an application such as this being made, the Court is on notice that a person may lack capacity to manage their own affairs in the litigation, and the Court is duty bound to consider and decide whether the person has the requisite capacity.
3. The importance of considering the application is underscored by the risk that any determination of the action at a final trial, which is likely to require a significant expenditure of legal fees on the defendant's part and draw considerably on the Court's resources, may be challenged as irregular if the plaintiff is later found to be under a disability.
4. In undertaking this exercise, I accept the following statements of principle, drawing on the helpful analysis of Seaward J in Snook v Magistrate Trevor Darge [No 2]:

(a) there is no fixed standard of the mental capacity required at law for a person to be deemed 'capable' of managing their own affairs;

(b) the standard will fluctuate according to the legal character, complexity and significance of the matter in question;

(c) proof of complete incapacity or proof that the party should be subjected to involuntary medical treatment under mental health legislation is not required;

(d) a person can lack the mental capacity to participate in legal proceedings yet still be capable of performing the usual activities of daily life;

(e) the Court must consider whether the person has sufficient mental capacity to understand the case and the legal issues involved, to make decisions in relation to the case and (if instructing a solicitor) to give instructions; and

(f) where the litigant is self-represented, the standard has been described as being greater than the level of mental capacity required to instruct a solicitor, because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.

1. Further, there is an overarching point to recognise. The Court must be mindful of the impact the order will have on the civil rights of the individual. I have already mentioned that the effect of an order under O 70 RSC is to preclude the individual exercising their right to prosecute, compromise or participate in the specific litigation in their own name. This is a serious consequence flowing from the declaration sought and which carries considerable weight in assessing whether the relief should be granted.
2. The pivotal question for present purposes is whether the application should be determined on the material before the Court, or whether the Court should adopt the defendant's alternative pathway and seek assistance from the Public Advocate.
3. In the circumstances of this application, I do not propose to decide the application at this stage. On my analysis, the alternative pathway proposed by the defendant is the more preferable option. That said, that approach should only be followed if the Court is satisfied at this stage that the application has a reasonable basis of succeeding. Absent such a conclusion, it would be appropriate to finally determine the application without delay.
4. Having reflected on the matter, I accept the defendant has raised this issue in a legitimate manner and I am satisfied there is material before the Court which is capable of supporting the declaration sought by the defendant - that the plaintiff is, by reason of mental illness, defect or infirmity, incapable of managing his affairs in respect of the present defamation proceedings.
5. Having regard to the material contained in the plaintiff's submissions and affidavit, including the statements I have extracted above, having regard also to my own observations of the plaintiff in his several appearances before me since early 2023, I am satisfied that there is a proper and sound basis for the defendant's application. The volume of the material adduced by the plaintiff and the nature of the serious allegations he raises, combined with the manner in which he articulates the allegations, goes well beyond the ordinary language of a passionate or zealous litigant in person.
6. The affidavit material filed by the plaintiff contains lengthy personal accounts of the plaintiff's life, his family and background, personal photographs one would not expect to be adduced in evidence in this action, and personal and intimate WhatsApp and text messages, as well as records of voicemail messages. All of this material is information which is irrelevant both to the present application and to the proceeding more generally.
7. The plaintiff's material strikingly demonstrates his intense focus on those who stand against him, on the effect the defendant's alleged conduct has had on his life, and the belief that there is a network of people coordinating actions against him.
8. I consider I am legitimately able to draw inferences from this material, including the manner in which the plaintiff expresses himself, as to the plaintiff's capacity to manage his affairs in respect of the present defamation action. In considering this issue, it is highly relevant that the present action is a defamation claim, said to be grounded in numerous publications made by the defendant. The issues likely to arise in the action will be of a complexity well beyond any typical piece of commercial litigation. The plaintiff in such an action would ordinarily be required to make numerous decisions as to the manner in which the action should proceed, including whether the pleaded case is adequate, the manner in which evidence should be presented at trial, and how to respond to the defences which have been erected by the defendant.
9. Returning then to the alternative pathway proposed by the defendant, I should say that I am satisfied the provision of assistance by the Public Advocate is a matter which falls within the proper functions of that office. So much is evident from the terms of 97(1)(c) of the GAA.
10. The orders proposed by the defendant are as follows:[23]

1. To assist the Court in determining whether the plaintiff is a person under disability by reason of mental illness, defect or infirmity within the meaning of Order 70 rule 1(c) RSC, the Court requests that the Office of the Public Advocate, pursuant to its function under s.97(1)(c) of the Guardianship and Administration Act 1990 (WA), investigate and then report in writing to the Court as to:

(a) whether the plaintiff has the ability to make reasonable judgments about the conduct of these proceedings; and
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> (b) whether or not the Public Advocate should make an application under the Act to appoint an administrator to conduct these proceedings as the plaintiff's next friend.

1. The Public Advocate is to be provided with the following documents (together, the Background Documents) to assist with the performance of its functions contemplated by these orders, namely:

(a) any written reasons of the Court in relation to the Application;
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> (b) the transcript of the hearing of the Application held on 11 April 2024;
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> (c) the pleadings; and
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> (d) the affidavit material and outlines of submissions filed by the parties in relation to the Application.

1. In providing a written report in accordance with paragraph [1] of these orders, the Public Advocate is requested to:

(a) appoint a psychiatrist who has not previously treated the plaintiff, to provide a report (Psychiatrist's Report) as to whether in the opinion of the psychiatrist, by reason of mental illness, defect or infirmity, the plaintiff is incapable of managing his affairs in respect of these proceedings; and for that purpose; > > > (i) if the plaintiff provides his consent in writing, to instruct the psychiatrist to examine the plaintiff;
> >
> > (ii) in any event, to provide the psychiatrist with the Background Documents; and > >
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> (b) include with its written report, a copy of the Psychiatrist's Report and written submissions as to whether the prohibition in Order 70 rule 2(1) RSC has the effect in the present circumstances of preventing the plaintiff from representing himself and conducting these proceedings.

1. These proceedings be adjourned to a date to be fixed pending the furnishing of the Public Advocate's written report and submissions to this Court in accordance with these orders, and the making of further orders. 2. The Defendant's costs of, incidental to and in connection with the Application be reserved.
2. I am conscious that the process of requesting assistance from the Public Advocate will involve a delay in the determination of this application. It may also result in a response from the Public Advocate to the effect that their office is unable to assist. There may be many reasons for this, including resourcing and budgetary constraints. The defendant is not presently proposing to underwrite the costs of the above exercise. Of course, if the defendant so wished, it could adduce its own medical evidence in due course.
3. Importantly, I observe that the pathway proposed by the defendant does not involve an order being made that the Public Advocate must assist the Court. That is appropriate in my view given the Public Advocate has not been heard on this application. The directions which are proposed involve a request being made. I am satisfied this is appropriate.
4. As to whether the plaintiff may be examined by any medical practitioner, if the Public Advocate is able to accommodate the Court's request, that is entirely dependent on the consent of the plaintiff. During the hearing, the plaintiff indicated he would be prepared to so consent. I will afford the plaintiff an opportunity in due course to decide whether he formally consents to such an examination.
5. In my view, it would be preferable for this application to be determined only after the possibility of assistance from the Public Advocate is fully explored, and medical evidence is adduced if that is possible. I therefore consider I should adopt the alternative pathway proposed by the defendant and will make orders largely in terms of paragraphs 1 and 2 of the defendant's minute (but to exclude the express reference to 'reporting' to the Court).
6. I do not propose to make orders in terms of paragraphs 3 and 4 at this stage, but rather I consider it appropriate for the matter to be relisted for directions so that the Public Advocate can be heard as to the directions which should be made, once the Public Advocate has had the opportunity to consider the background papers. This may include directions for the Public Advocate to appoint a psychiatrist to possibly examine the plaintiff, subject to the plaintiff's consent being forthcoming, and to prepare a written report to the Court as to its assessment.

1. To assist the Court in determining the defendant's application as whether the plaintiff is a person under disability by reason of mental illness, defect or infirmity within the meaning of Order 70 rule 1(c) RSC (Application), the Court requests that the Office of the Public Advocate, pursuant to its function under s 97(1)(c) of the Guardianship and Administration Act 1990 (WA), investigate:

(a) whether the plaintiff has the ability to make reasonable judgments about the conduct of these proceedings; and
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> (b) whether or not the Public Advocate should make an application under the Act to appoint an administrator to conduct these proceedings as the plaintiff's next friend.

1. The Public Advocate is to be provided with the following documents (together, the Background Documents) to assist with the performance of its functions contemplated by these orders, namely:

(a) the written reasons of the Court in relation to the Application, published on 12 April 2024;
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> (b) the transcript of the hearing of the Application held on 11 April 2024;
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> (c) the pleadings; and
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> (d) the affidavit material and outlines of submissions filed by the parties in relation to the Application.

1. The Application is otherwise adjourned to a hearing on a date to be fixed for further directions to be made as to the assistance which may be provided by the Public Advocate and for any further directions to facilitate the disposition of the Application. 2. The defendant's costs of, incidental to, and in connection with, the Application be reserved. 3. The parties have liberty to apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Given the sensitive issues raised by the present application, I have anonymised the names of the parties to the action.

[2] Defendant's substituted minute of proposed orders dated 4 April 2024 and defendant's minute of proposed orders dated 11 April 2024.

[3] Order 70 r 2(1), r 2(3), r 3(6) RSC.

[4] Farrell v Allregal Enterprises Pty Ltd [2008] WASCA 264 [16] (Pullin JA).

[5] Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91 [87] - [89] (Seaward J).

[6] A v City of Swan [No 5] [2010] WASC 204 [62] - [76] (Murphy JA).

[7] Affidavit of Ms Kwok sworn 21 March 2024, [9].

[8] Submissions entitled 'Plaintiff's Submissions (1) - Sub-5(1)' dated 5 April 2024, submissions entitled 'Plaintiff's Submissions (2) - Sub-5(2)' dated 7 April 2024, submissions entitled 'Plaintiff's Submissions (3) - Sub-5(3)' dated 8 April 2024, and submissions entitled 'Plaintiff's Submissions (4) - Sub-5(4)' dated 10 April 2024. The submissions run to a total of some 87 pages.

[9] The affidavit is 156 pages in length.

[10] Submissions entitled 'Plaintiff's Submissions (1) - Sub-5(1)' dated 5 April 2024, [2].

[11] Submissions entitled 'Plaintiff's Submissions (3) - Sub-5(3)' dated 8 April 2024, [11].

[12] Submissions entitled 'Plaintiff's Submissions (3) - Sub-5(3)' dated 8 April 2024, [14].

[13] Submissions entitled 'Plaintiff's Submissions (1) - Sub-5(1)' dated 5 April 2024, [87].

[14] Submissions entitled 'Plaintiff's Submissions (1) - Sub-5(1)' dated 5 April 2024, [88] and [89]; Submissions entitled 'Plaintiff's Submissions (2) - Sub-5(2)' dated 7 April 2024, [65].

[15] Submissions entitled 'Plaintiff's Submissions (1) - Sub-5(1)' dated 5 April 2024, [89].

[16] Submissions entitled 'Plaintiff's Submissions (2) - Sub-5(2)' dated 7 April 2024, [31] and [32].

[17] Submissions entitled 'Plaintiff's Submissions (2) - Sub-5(2)' dated 7 April 2024, [67].

[18] Submissions entitled 'Plaintiff's Submissions (2) - Sub-5(2)' dated 7 April 2024, [88].

[19] Submissions entitled 'Plaintiff's Submissions (4) - Sub-5(4)' dated 10 April 2024, [14].

[20] Submissions entitled 'Plaintiff's Submissions (4) - Sub-5(4)' dated 10 April 2024, [19].

[21] Submissions entitled 'Plaintiff's Submissions (4) - Sub-5(4)' dated 10 April 2024, [23] and [24].

[22] Submissions entitled 'Plaintiff's Submissions (4) - Sub-5(4)' dated 10 April 2024, [45(2)].

[23] Defendant's minute of proposed orders dated 11 April 2024.